Last month, the U.S. District Court for the District of Columbia extended its deadline for the existing STEM OPT program until May 10, 2016. The date of the new deadline is significant, as it not only provides the Department of Homeland Security (DHS) more time to publish and implement a final rule, but it also gives certain foreign students an additional opportunity to pursue H-1B status under the annual quota.
Foreign students are generally eligible for one year of Optional Practical Training (OPT) employment authorization immediately after completing their U.S. degree program. The STEM OPT rule currently grants a one-time 17-month extension of this employment authorization to foreign students whose degree program is in a designated science, technology, engineering, or mathematics field AND who are employed by employers enrolled in the E-Verify program. This additional time is critical for thousands of recent foreign graduates seeking H-1B visa status. H-1B is often the only appropriate visa option, but the category is subject to an annual quota with far more foreign nationals applying than there are visas available. For those unable to secure H-1B approval due to the quota, the STEM OPT extension has provided qualifying foreign students with an additional opportunity to seek H-1B visa status the following year.

Under an August 12, 2015 order, however, the court invalidated the STEM OPT program based on DHS’ failure to follow required rulemaking procedures, and it ordered the STEM OPT rule vacated effective February 12, 2016. The Department of Homeland Security (DHS) published a new proposed rule in October with the intention of publishing a final rule in time to meet the February 12, 2016 vacatur deadline. DHS received approximately 50,500 comments to the proposed rule, however, and requested a stay to allow for more time to review and consider the significant number of comments. In January, the court granted DHS’ request based on the “unexpected and unprecedented” number of comments, and it set a new deadline of May 10, 2016. The final rule is expected to be published by March 10, 2016 with an effective date on or before the May 10, 2016 deadline.

Foreign students with STEM OPT that would have terminated as of the initial February 12, 2016 deadline continue to have employment authorization where their STEM OPT documents are otherwise valid. This allows them to seek H-1B and possibly avoid any interruption to their employment authorization, as April 1, 2016 marks the earliest filing opportunity for new H-1B petitions. There are only 65,000 H-1B visas available under the annual quota, with an additional 20,000 reserved for foreign nationals who have earned a U.S. Master's or higher degree. Approximately 233,000 petitions were filed against that quota last year, and similar results are expected this year. As such, employers who intend to employ foreign national professionals in qualifying positions, including those foreign students with continuing STEM OPT, should pursue H-1B under this year’s quota.

Please contact Christl P. Glier or another member of the Firm’s immigration practice with additional questions regarding STEM OPT, H-1B visa eligibility, or other immigration matters. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 

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