As you may know, the validity of the regulation authorizing STEM OPT extensions of 17 months has been challenged. While the Court ruled back in August 2015 that the DHS had the authority to create the STEM program, it also held that the DHS did not follow the procedural rules required for implementation of a valid regulation. Thus, the DHS was given until February 12, 2016 to promulgate a final rule that would comply with its procedural obligations. While DHS was attempting to promulgate a proper regulation, it received over 50,000 comments that it is required to review before finalizing the regulation. Due to this unprecedented number of comments received and the impending February deadline, the DHS requested an additional 90 days, until May 10, 2016, to complete its rulemaking process and avoid a regulatory gap. This extension of time has been granted by the Court thereby restoring the STEM OPT program.
What does this mean for your STEM OPT employees between now and May 10, 2016?
- Individuals with approved STEM EAD cards at least through May 10, 2016 will have ongoing work authorization at least through that date
- Individuals with pending STEM extensions will have ongoing work authorization at least through May 10, 2016
- Individuals who are eligible for a STEM extension can continue to file for such work authorization at least through May 10, 2016
- Assuming your employee falls into one of the above categories, your employee should be able to file in the upcoming H-1B lottery as a Change of Status.
What happens after May 10, 2016? The DHS believes that it will successfully publish its final rule as it relates to STEM OPT extensions on or before May 10, 2016. If that is accomplished, the STEM OPT program should be permanently restored and a regulatory gap will be avoided. Once the final rule is published in the Federal Register, we can discuss any additional benefits that may come from the final rule as it relates to both the STEM OPT program and the regular OPT program.
If you have specific questions on your STEM employees, please give us a call and we’d be happy to discuss your personal situation with you.
