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DHS’s Proposed STEM OPT Regulation Sent to OMB for Approval

Employers who rely on STEM (Science, Technology, Engineering, and Math) students to fill technical positions got some good news this past week.  The Department of Homeland Security (DHS) sent its proposed regulation on the STEM Optional Practical Training (OPT) program to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA).  DHS is expected to propose a reauthorization of the STEM OPT program and add additional benefits outlined by the Obama administration last year, such as a longer STEM OPT period, more eligible degree programs, and clarification of the “Cap Gap” status.

After OIRA conducts its initial review, which should be relatively quick—a potential could happen by early November or sooner, the DHS will then take testimony, consider public comments, and, later, submit a final version of the revised regulations approved by OIRA. Typically, the public comment period extends at least 30 days. After, the DHS drafts a final regulation that responds to any public comments, OIRA would then conduct a final review, approve the text of the regulation, and publish it in the Federal Register. The period for the Office to review a draft regulation is limited by an Executive Order to 90 days, with the possibility of a single, 30-day extension. While there is no minimum period for review, the average review time in past years has been approximately two months.

 

The STEM OPT Program: A Win-Win for Employers and Employees in Turmoil

The STEM OPT program allows recent noncitizen university STEM graduates to continue to work for up to 17 additional months beyond the initial 12 months of OPT authorization they receive after graduation.  The STEM OPT program has essentially given employers who wish to sponsor H1-B petitions for foreign citizen interns and employees several entries into several annual H1-B lotteries without losing these valuable employees.

However, the Washington Alliance of Technology Workers, a union representing STEM workers, sued the DHS over its 2008 rule that allowed this expansion of the traditional 12 months of OPT, as well as the so-called “Cap Gap” extension, which allows for an automatic extension of OPT for certain cases who have an approved H-1B change of status.  The union argued that the STEM extension created unfair competition with U.S. workers by international students, and that the DHS impermissibly implemented the STEM OPT extension to alleviate pressure on the H-1B cap numbers, which only Congress had the authority to do.   On August 12, 2015, The U.S. District Court for the District of Columbia vacated the STEM OPT rule, and, consequently, the program itself on procedural grounds, but stayed its ruling until February 12, 2106.   vacated the STEM OPT program due to procedural issues regarding its creation.  However, the Judge stayed her ruling keeping the STEM OPT program in place until February 12, 2016, making the DHS’s move imperative to avoid the dismantling of this popular program.

What’s Next for Employers and Employees Relying on STEM OPT

With a short 30-day comment period and a quick turnaround on a final rule, the DHS should have enough time to get a new rule published before February 12, 2016.  Until then (unless the DHS decides otherwise), nothing about the STEM OPT program has changed.  Employers with F-1 visa holders whose first OPT period will expire between now and February 12, 2016 should go ahead and have those employees apply for the STEM extension.  F-1 visa holders currently on STEM OPT can continue to work pursuant to their authorizations..

As the February 2016 deadline approaches, I hope to have additional updates to pass along.

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