In 2008, the U.S. Department of Homeland Security (DHS) published an Interim Final Rule to extend the period of F-1 post-completion Optional Practical Training (OPT) from 12 months to 29 months for graduates with degrees in science, technology, engineering and math (STEM).
On August 12, 2015, the U.S. District Court for the District of Columbia issued an order vacating the 2008 STEM extension rule. Simultaneously, the District Court issued a stay of its order to delay vacating the STEM extension rule until February 12, 2016.
Why Did the District Court Vacate the 2008 Rule?
The District Court vacated the 2008 STEM extension rule because the rule was promulgated without the required period of notice and public comment, and the District Court found that DHS did not have a legally valid reason for forgoing the notice and comment process. The District Court’s order, called a “vacatur,” is the appropriate remedy in cases where an agency fails, without good cause, to allow for notice and comment before implementing a regulation.
Why Was the Court Order Stayed until February 12, 2016?
While vacating the 2008 rule due to the procedural defect in the rule-making process, the District Court also acknowledged the disruption that would occur in the labor force if the STEM OPT extensions of thousands of F-1 STEM employees were suddenly invalidated. Accordingly, the District Court has stayed the order vacating the 2008 rule to allow the DHS time to submit the same 2008 rule for the required period of notice and comment.
This means that students who currently benefit from the F-1 STEM extension may continue their employment. It also means that students who qualify for the STEM extension but have not yet applied for it may still apply for the STEM extension during the normal time frame for filing STEM extension applications.
What Happens on February 12, 2016?
Foster anticipates that the DHS will properly submit the 2008 rule for notice and comment, and that the DHS submission will remedy the only defect the District Court found in the original rule promulgation. Accordingly, so long as the DHS takes the expected rule-making action in accordance with the court order by February 12, 2016, the STEM extension rule would not be vacated.
Will the DHS Make Any Other Changes to the STEM Extension Rule When Re-Issuing the Regulation?
The Court Order relates only to the 2008 STEM extension rule and the subsequent expansions of the list of qualifying STEM degree fields. However, the DHS has been considering additional changes to further extend the period of OPT employment authorization and could use this opportunity to make additional changes in the rule-making process. In the event that the DHS does use this opportunity to make further changes to the STEM extension rules, such changes must comply with the notice and comment period requirements. The proposed changes may liberalize the benefits to F-1 students rather than contract them, and could include an extension of the authorized OPT period by as much as years, and the addition of new qualifying STEM degree fields.
Foster will continue to monitor changes in DHS regulations and the impact on employers and their foreign national workforce and will provide additional information in future Immigration Updates© and on our firm’s website at www.fosterglobal.com.