A Federal court recently issued an order to terminate the rule authorizing F-1 students in OPT to work an additional 17 months in STEM occupations (Sciences, Technology, Engineering, and Mathematics). Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 14-529 (D.D.C. 2015). But the termination has been postponed pending further action by USCIS.
By way of background, in 2008, the Department of Homeland Security (DHS) issued a rule known as STEM OPT, granting F-1 students 17 additional months of work authorization, for a total of 29 months. This benefit is available only to students working in STEM occupations for employers that utilize E-Verify. In issuing this useful rule, DHS failed to follow certain procedures required by the Administrative Procedures Act, specifically allowing the public a comment period. The Washington Alliance of Technology Workers challenged the rule and the court held DHS could not “demonstrate that the 2008 Rule was necessary to forestall a ‘fiscal emergency.’” It therefore held against DHS and vacated the rule.
Fortunately for U.S. employers and their STEM employees, the court recognized the major impact it would have on employers and foreign students if it were to terminate employment authorization on such short notice. The court, therefore, delayed implementation of its order until February 12, 2016 to allow DHS time to properly submit the rule for notice and comment.
As long as the DHS provides ample notice and comment, there should be no need for concern about the continued employment authorization of your STEM student workers under their existing OPT periods. For now, no action needed. However, when the rule is published and open to comment, employers should be prepared to provide vigorous support for the STEM employment authorization extension. Our attorneys will gladly assist employers with a letter, email, or call to representatives in Congress.