Effective May 10, 2016, STEM OPT Work Permits Expanded
Finding that the STEM OPT extension rule had not been subjected to public notice and comment procedures as required by law, Judge Huvelle vacated the DHS regulation that had allowed students with a degree in science, technology, engineering, and mathematics (STEM) to extend their OPT work permits by an additional 17 months. This STEM OPT extension provided a helpful means for F-1 students who had been unable to secure a visa under the H-1B visa quota cap to continue their employment in the United States. Recognizing that immediately cancelling the STEM OPT program would be “seriously disruptive,” causing “substantial hardship” and a “major labor disruption,” Judge Huvelle stayed the vacatur until February 12, 2016. This six-month stay grants DHS an opportunity to continue the STEM OPT program by following the requirements of the Administrative Procedures Act to properly issue regulations and allow for public notice and comment prior to the regulations becoming effective.
Since OMB clearance is required before the proposed regulations can be published, the contents of the proposed regulations are not yet available. OMB has 90 to 120 days to review the proposed rule and suggest any changes prior to clearing the regulations for publication. After OMB approval, the proposed regulations will be published in the Federal Register, and members of the public will have 30 to 60 days to provide feedback. Once the comment period expires, DHS will review and analyze the responses and then publish the final regulations in the Federal Register. Per Judge Huvelle’s stay of the vacatur, the final regulations must be published by February 12, 2016, to avoid any disruption in the STEM OPT extension program.