On January 28, 2021, the U.S. District Court for the District of Columbia upheld the 2016 Optional Practical Training (OPT) regulation that enables graduates of science, technology, engineering, and math degree programs to qualify for an additional two years of OPT work authorization beyond the normal one-year limitation.  The court ruled that the U.S. Department of Homeland Security (DHS) had the authority to issue its 2016 regulation, and the rule will remain in effect. 

Since 1947, DHS and its predecessor agency have permitted students in F-1 status to pursue temporary U.S. employment in their respective fields of study either during or upon completion of their degree programs. In 1992, the program was expanded to allow for up to 12 months of OPT, and in 2008, DHS again expanded the program to allow for an additional 17-month extension if the degree programs on which the visa-holders’ OPT were based were in STEM fields. The 2008 expansion was challenged in court in 2014, and in response to the litigation, DHS proposed another rule that would further expand STEM OPT eligibility.  

On March 11, 2016, DHS issued a final rule that permitted individuals in F-1 student status to apply for 24-month extensions of their OPT for STEM fields. The 2016 rule was again challenged in federal court, and while some of the lawsuit’s complaints were dismissed, the court allowed the plaintiffs to pursue the issue of whether DHS acted within its authority in issuing the 2016 OPT expansion rule. 

The court held that DHS did indeed have the authority to issue the 2016 rule, so the 24-month STEM OPT extension remains available to F-1 students graduating from qualifying STEM degree programs. In its ruling, the court explained in detail how its own statutory analysis, previous federal court rulings, and the longstanding nature of the OPT program all strongly support DHS authority to promulgate its 2016 regulation. Although the plaintiffs in this case are appealing the decision, international students and their employers can continue to apply for and receive 24-month STEM OPT extensions. 

In addition, on January 26, 2021, the Biden administration rescinded an initiative of the previous administration that could have potentially resulted in additional restrictions to the OPT program. In conjunction with the court’s ruling, this signal of support from the current administration provides additional assurance that the STEM OPT extension will continue to be available for the foreseeable future. 

As always, Foster will continue to monitor potential and upcoming changes in DHS regulations and will provide updates as appropriate via Foster Immigration Updates© and on the firm’s website at www.fosterglobal.com.