STEM OPT Rule Update: DHS Has Until May 10, 2016 to Implement New STEM OPT Rule

In a much-anticipated decision dated January 23, 2016, the U.S. District Court for the District of Columbia sided with the Department of Homeland Security’s request for extension to extend the vacatur of the current STEM OPT rule which was struck down on August 12, 2015.    The current STEM OPT rule continues to remain valid until May 10, 2016 which should hopefully give USCIS sufficient time to implement the new replacement STEM OPT rule.

Background of the STEM OPT Rule Litigation and Replacement Rule

USCIS is currently undergoing a rulemaking process for a new STEM OPT rule.    The sole reason requiring USCIS to redo the STEM OPT extension rule was the August 12, 2015 U.S. District Court for the District of Columbia decision to vacate the 2008 STEM OPT rule.   The Court’s rationale was that USCIS did not follow the normal rulemaking process which includes public comment period.   Initially, the Court ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process.

USCIS did publish the new proposed STEM OPT rule for public review and comment and there were about 50,000 comments received.    USCIS claimed that it cannot possibly review and process all of the public comments in time in order to implement and publish the new STEM OPT rule before the February 12, 2016 vacatur date and, accordingly, requested the District Court to grant additional time before the vacatur of the old rule became effective.

The January 23, 2016 Order Granting Extension of the Vacatur Date

The court based its decision to extend the vacatur date by 90 days mainly in order to avoid the hardship which will be imposed on the tens of thousands of current STEM OPT holders, future STEM OPT applicants, their dependents and a substantial number of US employers.   For example, DHS cited there are approximately 23,000 STEM OPT holders; 2,300 dependents of STEM OPT holders; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT work authorization.

Under the court order, the vacatur of the old STEM OPT rule is extended until May 10, 2016.   This means that this is the last date on which the current STEM OPT rule will be valid.   This also means that DHS has a bit extra time to implement the new STEM OPT rule, but not much.    Our expectation is that USCIS will aim to publish the final rule by early March so that the new STEM OPT rule can become effective in before May 10, 2016 (or 60 days after publication).

Conclusion

We welcome the court’s decision to extend the vacatur to allow DHS additional time to implement the new STEM OPT rule.    There are a number of unresolved questions to existing STEM OPT holders, including those whose applications are pending, and we are happy to consult and help STEM OPT holders understand their options.   Our office will continue to monitor the new STEM OPT rulemaking process over the next weeks and provide additional updates, including estimates and actual dates of implementation of the new STEM OPT extension rule.

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