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For many years, most foreign students on F-1 visas have been allowed to remain in the US for a period of 12 months after completing their degree for the purpose of training, internships or employment related to their field of study (called Optional Practical Training or “OPT”). Then, during the financial crisis of 2008, U.S. Department of Homeland Security passed a rule permitting a 17 month extension of OPT for F-1 foreign students who obtained their degree in a STEM (Science, Technology, Engineering or Mathematics) field.  Hence, these students were able to remain employed in the United States for 29 months after graduating as long as the US employer was registered under the government’s “E-Verify” program that requires the employer to verify the employment status of all prospective workers (US and foreign) on the government’s E-Verify website before hiring them. This rule was made in an effort to keep F-1 graduates with STEM educations in the United States for a longer period of time as part of the US workforce.  A list of degrees that qualify for the STEM extension is listed online.

High-tech firms welcomed the STEM extension, saying that they are desperate for workers, while labor unions and conservative immigration groups state that the STEM rule makes it easier for employers to replace US workers with foreign-born workers. In the summer 2015, the Center for Immigration Studies therefore challenged the STEM extension rule on behalf of the Alliance of Technology Workers, a chapter of a labor organization known as the Communications Workers of America.

Based on this law suit, on August 12, 2015, the District Court of the District of Columbia did not find anything wrong with the concept of the STEM extension, itself, but found that the rule was not properly established by Department of Homeland Security (DHS) since they did not give the required public notice before making the rule effective.  The Court gave DHS six months to properly reissue the STEM extension.

If DHS does not properly reissue the STEM extension rule by February 12, 2016, as many as 50,000 foreign students on STEM extensions may be forced to leave the United States.

Finally, on October 14, 2015 the DHS re-started the rulemaking procedure for the STEM extension rule. What’s interesting is that the new proposed rule actually extends the STEM extension from 17 months to 24 months. Hence, assuming that the new rule is properly established by Feb 12, the OPT + STEM extension will permit those F-1 students to remain employed in the US for up to 36 months after completing their programs.

For more information or questions, please contact:
Law Office of Richard A. Newman
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212-986-0947
rnewman@richardnewmanlaw.com