DHS Publishes Final STEM OPT Rules

Introduction: New STEM OPT Rules

On March 10, 2016, the Department of Homeland Security (DHS) published a new final rule for STEM optional practical training (OPT) extensions [see rule: 81 FR 13039].

The new rule will come into effect on May 10, 2016. In addition to STEM OPT extensions, the new regulations leave intact H1B “cap gap” protection. To learn about the new regulations in detail, please read our full articles that explain the new regulations in detail:

1. New STEM OPT Regulations and Procedures [see article]
2. H1B Cap Gap Protection [see article]

In this post, I will explain the procedural background that led to the new regulations, differences between the final version of the STEM OPT extension regulations and the final rule, and what may happen next with the pending litigation regarding STEM OPT extensions.

Background: Litigation and the Necessity for New STEM OPT Rules

In June of 2015, a federal District Court held in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, —- F.Supp.3d —— (D.D.C., 2015) [PDF version] [see article] that the Department of Homeland Security's (DHS's) rules regarding STEM optional practical training (OPT) extensions were invalid on the basis that DHS had lacked justification for not putting them through notice and public comment. The District Court stayed the ruling in order to give the DHS time to promulgate new regulations in accordance with the Administrative Procedures Act (APA). The decision was stayed initially stayed until February 12, 2016, and DHS obtained two subsequent extensions to May 10, 2016.

On October 19, 2016, the DHS proposed new regulations for STEM OPT and made them open for public comment until November 18, 2015. Notably, the proposed rule extended the maximum length of a STEM OPT extension from 17 months to 24. Please read our article about the proposed rule [see article].

Changes from the Proposed Rule

After submitting the proposed rule for public comments, DHS reviewed the comments and made modifications to the proposed rule before submitting the final rule. DHS listed the following changes (paraphrased from 81 FR 13039 unless directly quoted):

Time of Accreditation: A student seeking a STEM OPT extension based on a previously obtained STEM degree must have obtained the STEM degree from an educational institution that is accredited at the time of the application for the STEM OPT extension.
Student and Exchange Visitor Program (SEVP) Certification Required for Prior Degrees: A student seeking an extension based on a previously obtained STEM degree must have obtained the STEM degree from an educational institution that is SEVP-certified at the time of the application for the STEM OPT extension (overseas campuses of U.S. educational institutions not eligible).
Site Visit Notifications: The DHS will provide an employer of STEM OPT students 48 hours noticed before any site visit. However, DHS may visit without notice if there is a complaint or other evidence of noncompliance with STEM OPT extension regulations.
Focus on Training: DHS states that it has altered the proposed rule's Mentor and Training Program requirements to focus more on training.
Existing Employer Training Programs: The rule makes exposit that employers may use existing training programs to “satisfy certain regulatory requirements for evaluating the process of students.”
Employer Attestation: Employers will be required to attest that the student will not replace a full- or part-time permanent resident or permanent U.S. worker.
Evaluation of Student Progress: The student and an appropriate individual in the employer's organization will be required to sign an evaluation on an annual basis, with a mid-point evaluation during the first 12-months of a STEM OPT extension and a final evaluation before the conclusion of the STEM OPT extension.

Highlights in the New Rules

The new rules extend the period of STEM OPT extensions from 17 months to 24. Accordingly, they increase the amount of time a student may be unemployed during the extension period and still maintain status. The rules allow students who obtain a second STEM degree at a higher level than the first (if the first was used as the basis for an extension) to apply for a second STEM OPT extension. The rule adds various regulations for employers of STEM OPT students to comply with and provisions to help ensure that STEM OPT students meet their training goals.

To learn about the new rule in detail, please see our full article [see article].

Conclusion

The litigation that forced DHS to promulgate new STEM OPT rules is ongoing. The plaintiffs (Washington Alliance of Technology Workers) are challenging DHS's underlying authority under the Immigration and Nationality Act (INA) to authorize STEM OPT extensions. While the litigation on the issue bears watching, students seeking STEM OPT extensions may pursue them under the new rules with confidence. We will be sure to keep you abreast of further developments on the issue here on our website.