It’s the End of the STEM Extension, But Not Really

The US Federal District Court for the District of Columbia has ruled that the STEM extension for Optional Practical Training was not properly promulgated by the Immigration Service in 2008 and therefore the regulation has been invalidated (but see the rest of the story below).   

F-1 foreign students are generally provided with one year of Optional Practical Training (OPT) which allows the graduating students to work for any employer as long as the position is related to their recently received degree.   If the graduate wishes to work in the US after the one year, he or she must change status to H-1.  However, due to the travesty which is the H-1 category today, many graduates cannot obtain H-1 status within the first year after graduation and they run out of OPT work authorization.  

In 2008 CIS sought to alleviate this situation, at least for those graduates who had obtained a Master’s degree in the US in science, technology, engineering or math. CIS did this by amending its regulations to allow for a 17 month “STEM extension” which allowed those graduates more time to attempt to change status to H-1, or perhaps just provide more practical training before the graduate left the US.  

The problem is that CIS amended its regulations without following the procedures of the Administrative Procedure Act which requires a period of “notice and comment” to and from the general public before regulations can be finalized or amended.     Although this was obvious in 2008, it was doubtful anyone would challenge the amendment because it benefited the graduates with Master’s degrees and employers.   

But the Washington Alliance of Technology Workers thought otherwise and succeeded in obtaining standing to sue in Federal court.  In the court’s decision, the District Judge agreed the amended regulation was not legally finalized and therefore voided it.  

However, and here is the important point of all this, the Judge also stayed the invalidation of the regulation until February 2016 to allow CIS to initiate and conclude the “notice and comment” process.   This should give CIS enough time to correct the mistake made in 2008, and if successful, there will be no interruption in the STEM extensions.  Obviously, if CIS does not successfully complete the “notice and comment” period by next February, the STEM extensions will be invalid at that time.  So, we will have to watch how fast our friends at CIS can complete this task.

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