A district court judge in D.C. recently vacated USCIS'
authority to grant extensions of employment permission to certain
foreign students. Seventeen month "STEM" extensions
of employment authorization are currently available to foreign
students following a twelve month period of Optional Practical
Training (OPT), providing a total of twenty nine months of
employment permission. The USCIS rule awards the 17 month
STEM extension to graduates of science, technology, engineering,
and math programs if the employer for whom the student works is
enrolled in the federal E-Verify program. STEM extension of a
student's OPT has become a routine piece in the overall
immigration strategy of retaining key foreign talent in the
technology sector, particularly. Many foreign students seek
to change status from F-1 to H-1B upon conclusion of OPT; however,
for fiscal year 2016, USCIS received approximately 233,000 H-1B
visa petitions against the 85,000 available quota leaving STEM OPT
the only immediate option to remain employment authorized and
providing time to pursue H-1B status in next year's annual
The court held that the STEM OPT extension is not permissible because it is a result of the agency's 2008 interim rule that has not yet been subject to public notice and comment as required by the Administrative Procedures Act. Recognizing the abrupt disruption an immediate termination of the STEM program would create, the judge's ruling does not go into effect until February 12, 2016. USCIS has until that date to comply with the APA notice and comment requirements. If it cannot, employers must terminate all foreign students on OPT STEM at that time and the foreign student will have 60 days in which to depart the U.S. Please note, this rule does not affect foreign students working pursuant to an initial award of OPT or Curricular Practical Training (CPT). Moreover, it appears the agency will be unable to fulfill further expansions of the OPT program as called for within the President's Executive Action announcement last November.
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