STEM OPT Rule Clears Federal Review

United States

The Office of Management and Budget has cleared a proposed regulation on the STEM optional practical training program and the cap-gap relief program for F-1 students awaiting a change of status to H-1B. The proposed rule is expected to be published in the Federal Register for public feedback in the coming days. 

OMB clearance means that the Department of Homeland Security is one step closer to meeting a February 12, 2016 court deadline and ensuring the continuation of the STEM OPT program. In August, a federal district judge invalidated the regulation establishing the STEM program on the ground that DHS had not followed proper administrative procedures when it first promulgated the rule in 2008. The judge stayed that decision temporarily to allow the agency time to publish the rule for public notice and comment. 

The forthcoming proposed rule is expected to lengthen the STEM OPT extension period beyond the current 17 months, expand the list of degree programs eligible for the extension and require degree-granting schools to ensure that there is a relationship between a foreign student's degree and his or her STEM OPT employment. The rule could also expand cap-gap protection for F-1s awaiting a change of status to H-1B. The exact contents of the proposed rule will not be known until publication. 

What This Means for Employers and Foreign Nationals

Once the rule is published, individuals and organizations will have an opportunity to provide feedback during a comment period, which is typically 30 to 60 days long. Comments from employers will be crucial to make DHS aware of the importance of the STEM program and to give feedback on proposed substantive changes. If your organization wishes to comment, please contact your designated Fragomen team or the firm’s Government Strategies Group.

After the public comment period closes, DHS will review the feedback it receives and prepare to issue a final version of the regulation for implementation. There is no set timeframe for publication of a final rule, but DHS could aim to do so by February 12, to ensure that the STEM program can continue uninterrupted. 

This alert is for informational purposes only. If you have any questions, please do not hesitate to contact the immigration professional with whom you work at Fragomen.