The STEM OPT Program: Next Steps and Planning for F-1 Students and Employers

United States

Following the recent court ruling in Washington Alliance of Technology Workers v. DHS (WashTech), the Department of Homeland Security is expected to publish the regulation that established the STEM optional practical training (OPT) program for notice and comment to ensure that the program continues uninterrupted. Meanwhile, the STEM OPT regulation remains in place, allowing F-1 STEM students to seek an OPT extension and to work pursuant to an approved STEM OPT employment authorization document (EAD).

The court’s ruling has prompted inquiries from employers and F-1 students concerned about the future of the STEM OPT program.  Fragomen has prepared answers to the following frequently asked questions about the court’s decision, DHS’s next steps and what employers and F-1s should do now.

In the wake of the WashTech decision, what must DHS do to ensure that the STEM OPT program remains in place without interruption? Will the agency meet the deadline set by the court?

In the WashTech case, U.S. District Judge Ellen Huvelle invalidated the federal regulation establishing the STEM OPT program on the ground that DHS had not followed the proper administrative process when it implemented the rule. Judge Huvelle immediately stayed her ruling and allowed the program to remain in place in the near term, granting DHS until February 12, 2016 to bring it into compliance with federal regulatory procedures. In doing so, Judge Huvelle made clear that she wanted to avoid hardship and disruption to F-1 STEM students and their employers. 

To ensure that the STEM OPT program continues without interruption, DHS is required to publish the regulation in the Federal Register by the court’s deadline and give the public an opportunity to submit comments.  The notice and comment process has historically been a lengthy one, though the timelines prescribed by law allow an agency to move through the required procedures in a matter of months.   

DHS has very strong incentives to keep the STEM program operating without interruption and as such, there is every reason to believe that DHS will work to meet its regulatory obligations within the period granted by the District Court.  However, employers and F-1 foreign nationals should be aware that DHS may not complete its obligations until just before the court’s deadline.  Furthermore, the possibility that DHS may ask the court for extra time cannot be ruled out. 

Will the WashTech decision be appealed?

The plaintiffs have appealed the ruling to the U.S. Court of Appeals for the D.C. Circuit.  They are expected to challenge the District Court’s finding that DHS has the authority to create employment programs for F-1 students and the court’s decision to stay its invalidation of the STEM OPT regulation to give DHS time to meet procedural requirements.  

As of now, the plaintiffs have not filed any emergency motions that would necessitate immediate action by the Court of Appeals.  As such, Judge Huvelle’s decision and stay of her own ruling are likely to remain in place in the near term.

In complying with the court’s ruling, will DHS issue a new STEM OPT regulation or will it simply republish the existing regulation?

One likely option is for DHS not simply to publish the STEM OPT rule in its current form but to issue a new proposed regulation with substantive changes to the program.  Such a plan was announced at the presidential level as part of the White House’s modernization program for the legal immigration system and has been in the planning stages for some time.  The specific contents of the proposed rule will not be disclosed until it is published in the Federal Register, but it is anticipated to increase the STEM OPT extension period, 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 national’s degree and his or her STEM OPT employment.  It is also possible that the rule could permit foreign nationals with a prior U.S. STEM degree to seek an OPT extension.

Another option is for DHS to republish the current STEM OPT regulation for public comment, though publication of a new proposed rule with program revisions is more likely.

Will organizations have the opportunity to comment on the STEM OPT regulation?

Yes.  When DHS publishes the STEM OPT regulation in the Federal Register, it will provide the public with a period of time within which to submit comments, typically 30 to 60 days.  

Comments from employers will be crucial not only to provide feedback on proposed substantive changes to the program but to make DHS aware of the critical importance of the STEM OPT program to U.S. businesses and the disruption that would occur if the program were to lapse because the agency did not meet its obligations in a timely way.  If your organization is interested in submitting comments on the forthcoming proposed regulation, please contact your designated Fragomen team or the firm’s Government Strategies Group.

Is a new STEM OPT program likely to be implemented in the current political environment?  Will it be challenged in court?

Once the forthcoming proposed rule is published in the Federal Register, we expect robust discussion and a large number of comments from the public.  The anticipated proposal has already drawn criticism from some in Congress, but we know of no reason to believe that these criticisms alone would delay publication of the regulation in compliance with the court’s deadline.  

Though the WashTech court held that DHS has the authority to create employment programs for F-1 students and that there is a long history of congressional approval for such programs, another court challenge cannot be ruled out, particularly in view of a pending lawsuit challenging the H-4 spousal employment regulation and the common team of attorneys assisting in both cases.

What is the impact of the WashTech decision on F-1 students who have already obtained a STEM extension of OPT? Could STEM OPT work authorization end on February 12, 2016 if DHS does not meet the deadline to comply with its regulatory obligations?

Because Judge Huvelle stayed her decision, the current STEM OPT regulation remains in place as it exists now, including the 17-month extension period.  DHS has announced that it plans to issue guidance on the impact of the decision, but there are no indications that it is planning to truncate the work authorization of F-1 students whose OPT has been extended under the current rule.  F-1 students who have already been approved for a 17-month extension of OPT on the basis of a qualifying STEM degree should remain eligible to work through the expiration of their STEM OPT employment authorization document (EAD), even if that date falls after the February 12, 2016 deadline.  

In the unlikely event that DHS were to fail to meet the deadline, we would not expect it to cancel otherwise valid STEM OPT EADs unless the court were to order such an action.  Given DHS’s strong incentive to comply with the court’s order, and the court’s desire to avoid causing hardship to F-1 students and employers, we do not expect this outcome.

What about F-1 students with a pending application for a STEM extension of OPT?  Will new STEM OPT EADs be issued for less than 17 months?

The expectation is that USCIS will continue to adjudicate pending applications for STEM OPT extensions and accept new applications.  F-1s who file a timely application for a STEM extension remain authorized to work for an additional 180 days after their initial OPT EAD expires, in accordance with current program rules.  

Because the District Court ordered the STEM OPT regulation to remain in place for now, DHS is expected to issue extension EADs for their full 17 months’ validity, though we are awaiting confirmation from the agency.    In the event that DHS does not meet the February 12, 2016 deadline to publish the STEM OPT regulation, it may suspend the adjudication of pending OPT applications at that time and stop accepting new filings until the regulation is brought into compliance.  This could result in a gap in employment authorization for some.

What actions should employers and F-1 students take now?

At this stage, employers and F-1 students working on OPT should work with their designated Fragomen team to stay apprised of developments relating to the STEM program.  Employers and F-1s should not assume that the program will be invalidated permanently, but should be aware that DHS may not complete the steps necessary to continue the program until the last minute, and could even request additional time to do so.  This could mean a period of uncertainty for F-1s working on OPT now and planning to seek a STEM extension before their current OPT EAD expires.  

Though it is expected that DHS will do what is necessary in time to ensure that the STEM OPT program continues without interruption, your organization may wish to contact its Fragomen team to determine whether current F-1 OPT employees are eligible for other nonimmigrant categories.  Performing a preliminary assessment of alternatives now may help to reduce the risk of gaps in employment authorization in the event that there are delays in the regularization of the STEM OPT program. 

Fragomen is closely monitoring the STEM OPT program and will update clients as developments occur.  If you have questions about this client alert, please contact your designated Fragomen professional.

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