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UPDATE: Department of Homeland Security Takes Steps Toward a New STEM OPT Extension Program

**03/11/2016 Update:**
DHS released the final rule for the new STEM OPT program. You can read about the final STEM OPT regulation here.

**03/09/2016 UPDATE:**
Today, DHS released an early copy of the final STEM OPT rule. The new rule is expected to be published in the Federal Register later this week and will become effective on May 10, 2016. The early release of the new STEM OPT rule provides for a 2-year STEM OPT (instead of the 17-month prior rule), allows for two STEM OPT periods (instead of only one under the old rule), and requires employers to provide a formal training plan, among other requirements. We will provide additional details after the final version of the new STEM OPT rule is published in the Federal Register. Feel free to check our website or sign up for our newsletter to receive future updates.

**02/18/2016 UPDATE:**
The final rule for the new STEM OPT has been submitted to the Office of Management and Budget for final review. This is the last procedural step before the new STEM OPT rule can be published in the Federal Register, so that it can be implemented.

**01/26/2016 UPDATE:**
After reviewing a motion from the U.S. Department of Homeland Security (DHS), the District Court agreed to allow the government an additional 90 days to implement the new STEM OPT program before terminating the existing program. DHS had requested an extension because it received over 50,000 public comments in response to the new STEM OPT proposed rule, and it needed additional time to review all of them. Given the court’s extension, DHS has until May 10, 2016, to issue a final rule and begin implementing the new STEM OPT program. The current STEM OPT program, which was set to terminate on February 12, 2016, will be extended until May 10, 2016.

**10/15/2015 UPDATE:**
DHS has released the proposed rule, to be published in the Federal Register on October 19, 2015. An advance copy of the proposed rule may be found here.


10/08/2015 ORIGINAL ARTICLE:

On October 2, 2015, the U.S. Department of Homeland Security (DHS) submitted a new proposed rule regarding STEM OPT, which affects F-1 foreign students graduating with a science, technology, engineering or mathematics (STEM) degree from certain U.S. colleges and universities. This new proposed rule was submitted in part to address a court order issued in August 2015 by a federal court in the District of Columbia, which found that DHS previously failed to comply with the public notice and comment requirement when the original STEM OPT rule was instituted in 2008.

What is OPT?
In general, undergraduate or graduate students in F-1 status may be approved for a 12-month post-completion Optional Practical Training (OPT), which provides them employment authorization to gain practical knowledge related to their field of study, regardless of the field.

What is STEM OPT?
Since 2008, the STEM OPT program has allowed individuals graduating with a science, technology, engineering or mathematics degree to obtain a 17-month extension of the original OPT period. While the original one-year OPT period is available to F-1 students regardless of their field of study, the STEM extension is only available to those who graduated with a STEM degree and whose original OPT was approved for a STEM field.

New developments regarding the STEM extension
In a federal lawsuit (Washington Alliance of Technology Workers v. DHS, Civil Action No. 14-529, U.S. District Court for the District of Columbia), the D.C. Court ordered that the original STEM OPT program be terminated because it was not properly implemented. However, the Court ordered that the termination would not be effective until February 12, 2016, therefore allowing the U.S. government time to fix the procedural deficiency.

The new proposed rule submitted by DHS to the Office of Management and Budget on October 2, 2015, is the first step toward complying with the notice and comment requirements. Once the Office of Management and Budget approves it, DHS will publish the proposed rule in the Federal Register and open the public comment period. After DHS receives and analyzes all public comments, the agency will publish the final rule. Details regarding the requirements for STEM OPT extension under the new proposed rule will become available once the proposed rule is published in the Federal Register.

We will monitor this issue and inform you of any developments regarding the new proposed rule for STEM OPT extension. If you have any questions, please do not hesitate to contact us at (608) 252-9291 or rvo@dewittllp.com.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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