In August 2015, the U.S. District Court for the District of Columbia determined that the Department of Homeland Security (DHS) improperly promulgated the regulation allowing the 17-month STEM extension for optional practical training (OPT) because the regulation was not subject to notice and comment rulemaking, which requires DHS to consider public comments before making the regulation final. However, the judge did rule to keep the STEM OPT regulation in place through Feb. 12, 2016, during which time DHS was to submit the regulation for notice and comment by the public and interested stakeholders. The regulation was kept in place so that the students utilizing a STEM extension would not be forced to leave the country or left without work authorization.
On Oct. 19, 2015, DHS issued the long-awaited notice of proposed rulemaking (NPRM) to amend the F-1 OPT regulation to allow for an additional 24 months of optional practical training if the student has earned a degree in science, technology, engineering or mathematics (STEM). A significant amount of changes were proposed in the new regulation, including how STEM fields are defined, the requirement of a Mentoring and Training Plan, additional safeguards for U.S. workers in related fields, school accreditation and employer site visits, and compliance requirements.
As a result of the Oct. 19, 2015, NPRM, DHS received over 50,500 comments from interested stakeholders. Last week, the agency asked the U.S. District Court to prolong the stay through May 10, 2016, to keep the STEM regulation in place to allow additional time for it to review the overwhelming amount of comments received. DHS also stated that it needs additional time to train officers on the new STEM OPT requirements.
If the District Court vacates the original 2008 OPT extension rule allowing for the STEM extension before DHS publishes the final regulation, F-1 students seeking a STEM extension will be prevented from doing so during any gap between Feb. 12, 2016, and the time the new rule is published.
We will continue to monitor the progress of the NPRM and provide updates as they become available.
