In 2008, DHS announced regulations that allow for 17-month STEM OPT and H-1B cap-gap extensions. However, due to circumstances at the time, DHS failed to give sufficient official notice of these regulations.This failure led to a lawsuit, against DHS, by the Washington Alliance of Technology Workers (WashTech), a union of computer professionals. The lawsuit challenged the legality of OPT STEM extensions. On August 12, 2015, the court issued its ruling. The court upheld the validity of these extensions, but at the same time held that DHS did not follow the correct steps in implementing the regulations. Ordinarily, the court would have invalidated the regulations immediately. However, recognizing the significant negative impact on students and employers, the court gave DHS until February 12, 2016 to announce and implement properly new regulations. That is, the court delayed, by six months, the effect of its order to invalidate the regulations. The court said that should DHS properly implement new regulations in time, those new regulations would continue. Here is the court’s decision, referencing the February 12 date: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0529-43
On October 19, 2015, DHS did announce new OPT STEM regulations. The most significant change was the increase of STEM extensions to 24 months rather than 17 months. As required by law, DHS gave official notice and specified a time for interested parties to offer comments. Here is a link to the proposed regulation: https://www.federalregister.gov/articles/2015/10/19/2015-26395/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-andIn January 2016, DHS asked the court to extend the original February 12 deadline. Its reason for doing so was the large number of comments it received. DHS argued that the number of comments meant that DHS needed more time to consult with interested parties, such as employers and universities, about the new regulations.
On January 23, 2016, the court agreed, giving DHS until May 10, 2016, to implement the new regulations properly. Here is the court’s memorandum opinion: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0529-51Therefore, if you currently are working under a STEM extension that ends after February 12, 2016, that work authorization will continue even past this original deadline. Furthermore, if your original STEM authorization extends past the second deadline of May 10, 2016, then your ability to continue working will depend on whether or not DHS implements its new regulations properly by that time, and for the regulations to survive any legal challenges. If so, you would not only be able to continue working, but also possibly could extend your authorization for the additional time provided by those new regulations.
Please keep in mind that the regulations in dispute involve more than just OPT STEM extensions. They also involve the ability of certain H-1B beneficiaries to get an OPT cap-gap extension. Therefore, such persons also should be interested in seeing that DHS implements these new regulations properly and on time.
The above information does not constitute legal advice and does not form an attorney-client relationship. Unless otherwise stated, this information assumes a person is maintaining the conditions of his or her status.
Calvin Sun, Attorney at Law
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