Thursday, October 22, 2015

The issues and uncertainty about OPT STEM extensions might be resolved

The recent uncertainty about the continued availability of OPT STEM extensions might be resolved. The result, in fact, could be even better than the current STEM extension provisions.

A few days ago, the U.S. Department of Homeland Security (DHS) announced a proposed rule regarding the OPT STEM extension program. One major change involves an increased length of the extension, from the current 17 months to 24 months. In other words, a STEM-eligible OPT participant, under the new rule, could have an total OPT period of as long as 36 months, as opposed to the current maximum 29 months.

As important as this increased length for STEM OPT is, however, an even MORE important aspect is the fact that DHS has proposed this rule in the first place. Their doing so addressed a key concern of the Federal judge who, a few months ago, struck down the OPT STEM extension program while delaying the effect of the striking down until February 2016.  The judge actually had no problems with either OPT or the OPT STEM extension themselves. Rather, she was unhappy because DHS failed to follow the proper procedure when originally setting up the OPT STEM extension option. The judge delayed the effect of the striking down in order to give DHS time to fix this earlier mistake—that is, to give DHS time to create a regulation and to do it properly.

The advertising in the Federal Register is the first step toward properly creating a rule, and should encourage those of you who have been concerned over the future of the OPT STEM extension. No one knows the future, of course. However, barring any unforeseen developments or problems, and specifically, assuming the judge finds no issues with the new rule or the process, the OPT STEM extension should continue, this time with an even longer period than before.

For further details of the proposed rule:

The information above does not constitute legal advice and does not create an attorney-client relationship.
Calvin Sun, attorney at law
215-983-3723 (note: you may get a Spamarrest challenge message in response)
We Chat: calvin_t_sun