The Department of Homeland Security (DHS) has released the text of its proposed law for a new STEM post-graduation Optional Practical Training (OPT) program. The DHS will allow the public to provide comments until November 18, 2015. Afterward, it is expected that the DHS will issue the final text of the law before the current rule is vacated on February 12, 2016. This article will provide the background and a summary of the new law.
In August 2015, the U.S. District Court for the DC District vacated the rule that allowed STEM students in F-1 status to extend their OPT employment authorization for 17 months. To avoid hardship to thousands of foreign students currently present and working pursuant to this rule, the District Court postponed the invalidation of the rule for six months, until February 12, 2016. According to the District Court, when issuing the rule in 2008 the US Department of Homeland Security (DHS) did not comply with the normal rulemaking process requiring the agency to issue a notice and allow for public comment.
The DHS issued the original 2008 rule pursuant to emergency rulemaking provisions that allow an agency to put into effect rules for good cause without public notice and comment. Unless the rule was issued, the DHS argued, thousands of foreign students who were unable to secure an H-1B work visa would have to leave the United States. The majority of foreign students will only qualify for the H-1B work visa, which is subject to an annual quota that is generally met the first week it opens. Due to this oversubscription, many foreign students were not able to secure an H-1B visa before their one-year period of OPT work authorization expired. The DHS argued that the rule was necessary to allow these foreign students multiple opportunities to secure an H-1B work visa.
The proposed regulation offers a combination of benefits and burdens to school Designated School Officials (DSO), students and employers. The most significant aspect of the new program is the increase of the total period of employment authorization from 17 months to 24 months. In addition to providing a new STEM OPT program, the DHS also included a formal rule on Cap Gap relief which had not been previously subjected to the normal rulemaking process. There are no changes in the Cap Gap provisions from the rule that is currently in effect. Below is a summary of the regulation's major provisions as they relate to the STEM OPT extension:
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