STEM OPT Extensions in Jeopardy

On August 12, 2015, a Washington D.C. Federal Court Judge overruled the 17-month Optional Practical Training (OPT) extension for qualifying F1 students with STEM (science, technology, engineering, math).

The OPT extension was published as an Interim Final Rule by the Department of Homeland Security in April 2008. Judge Ellen Segal Huvelle of the US District Court determined the Interim Final Rule as deficient, demonstrating that the DHS hasn’t followed the mandatory procedures of “notice and comment” while creating the rule to allow F1 foreign students in STEM degrees to extend their practical training in the US beyond the originally permitted 12 months OPT duration.

The Judge explained that the DHS failed to show any emergency circumstances that warranted an emergency exemption from the mandated requirement of notifying for public comment prior to implementing it as a rule.

Stay Granted Until February 12, 2016

The Federal Judge who vacated the DHS 2008 rule and its subsequent amendments has stayed her judgment until February 12, 2016, because an immediate annulment of the rule would be seriously disruptive and cause suffering to thousands of foreign students who would be compelled to leave the United States without much lead time. This will also allow DHS to submit the rule for proper notice and comment during this period.

12 Month OPT Period Not Affected

In the Washington Alliance of Technology Workers lawsuit, the court had earlier declined in November 2014 to cancel the 12-month OPT program which had been in place even before the 2008 OPT extension rule was made. This means that the originally mandated Optional Practical Training program (12 months) for all graduates would not be affected in anyway.

Despite this rule, STEM graduates shouldn’t refrain from applying for a 17-month OPT extension now.  OPT extensions are still being approved until February 2016.

Effect of the Decision

Naturally, the current ruling by the Washington DC Federal Court has an impact on international students in the US as well as IT companies and consultancies that employ F1 students for OPT programs. The annulment of the DHS 2008 rule may pose a major problem for H-1B cap-gap extensions. As per the new verdict, the H1B/F1 cap-gap protection will no longer be automatic.

The Court ruling will restrict the number of attempts an H-1B filing employer can make to file a H-1B petition on behalf of eligible OPT participants, since the OPT period will now be limited to 12 months as opposed to the current 29 month period with extension.

At the time when the 2008 rule came into effect, nearly 70,000 F1 international students were on OPT programs and among them, 12,000 were likely to receive STEM extensions.

For more information, read the complete OPT Extension Federal Court Ruling.

To learn more about OPT extensions, visit Optional Practical Training.