Proposed Rule by DHS Will Allow for 24 Month STEM OPT Extension

On August 12, 2015, U.S. District Judge Ellen Segal Huvvelleon (D.C.) stated that the Department of Homeland Security (DHS) rule that allows certain F-1 students with STEM (Science, Technology, Engineering, and Math) to complete an additional 17 months of Optimal Practical Training (OPT) is deficient because it wasn’t subjected to public notice and comment before its enactment. On that basis, the court invalidated the 2008 STEM OPT Extension Rule,  allowing it to stay in place  only until February 12, 2016.

Now, DHS is seeking to reauthorize the STEM OPT Extension program, with some changes. DHS has proposed to amend its F-1 nonimmigrant student visa regulations on OPT for certain students with degrees in STEM subjects from accredited U.S. institutions. DHS is expected to publish the new STEM OPT Extension Rule in the Federal Register on Monday, October 19, 2015, at which time it will be subject to notice and comment. The current rule allows for  F-1 students with STEM degrees who have pursued 12 months of OPT in the U.S to extend the OPT for 17 months. The new rule, if enacted, will extend the STEM OPT  extension period to 24 months, which is 7 months longer than what is allowed under the current rule expiring in February. The proposed rule aims to ensure that U.S. colleges and universities “remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.”

The new rule needs to be in effect by February 12, 2016, when the old rule will no longer be in place. Because the rule is a “significant rule” within the meaning of Executive Order 12866, there must be a minimum of 60 days between the final publication and the effective date of the rule. Under this time frame, to be effective on February 12, 2016 when the old rule is invalidated, the final replacement rule needs to be published no later than December 14, 2015.

At this time, DHS is expected to publish the rule on Monday, October 19, 2015.Once published, the public will be given 30 days to submit comments on the proposed rule.

Please check back for further updates on this development.