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

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 response to 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.