US OPT rules confirmed: Foreign STEM grads can now stay and work for up to three years

Following months of legal wrangling and uncertainty over the key Optional Practical Training (OPT) programme for foreign STEM graduates in the US, new rules were formally set down by the Department of Homeland Security (DHS) earlier this month. OPT has been a feature of the US immigration system for more than 70 years, and it allows international students to stay and work in the US for up to 12 months following graduation. In 2008, DHS tweaked the regulations, offering among other changes a 17-month extension of the OPT period for graduates in science, technology, engineering, and math (STEM) fields. The STEM extension has come under legal challenge since, leading to an August 2015 ruling that struck down the 2008 STEM extension. However, the presiding judge allowed DHS several months to fashion a new rule in its place. (For additional background on the case and the issues at hand, please see our earlier post from February 2016 along with extensive and up-to-date briefing notes from NAFSA.) The court case (and the prospect of new regulations for OPT) has been a source of considerable confusion and stress for thousands of international STEM students in the US as well as their prospective employers. "Many prospective international students consider OPT as a means to earn money and defray the costs of their education, or to gain valuable work experience that can lay a firm foundation to a successful career," said Eddie West of the National Association for College Admission Counseling (NACAC) in a recent interview with Forbes. And by no means is this a small question: the latest data from the Student and Exchange Visitor Program (SEVP) indicates that nearly four in ten international students in the US - roughly 470,000 students in total - are engaged in STEM studies. For the moment at least, the concerns of those many thousands of students have been put to rest. The new regulations, published in the Federal Register on 11 March 2016 and due to come into effect on 10 May 2016, provide for an even longer STEM extension of 24 months (as opposed to the previous 17 months), meaning that foreign STEM graduates can now stay and work in the US for up to three years following graduation. The new rule also establishes some additional requirements for US employers of foreign STEM graduates, including:

• In order to qualify for a STEM extension, the student and his/her prospective employer must prepare "a formal training plan that identifies learning objectives and a plan for achieving those objectives."
• The regulations now stipulate that students remaining in the US under a STEM extension must be accorded the same working conditions (including work responsibilities, hours of work, and salary) as comparable US staff.

Employers are also obliged to comply with ongoing reporting requirements under the programme, and to accommodate site visits from DHS officials.

A new online info hub

In order to support the transition to the new regulations, DHS has also recently launched a new online hub with a range of student and employer resources for STEM OPT. The Department’s Transition Plan specifies that, for students with a 17-month STEM OPT application currently pending: "The 17-month STEM OPT regulations remain in effect through 9 May 2016. DHS will continue to accept and adjudicate applications for 17-month STEM OPT extensions under the 2008 interim final rule through 9 May 2016…[As of 10 May 2016,] DHS will apply the requirements of the 24-month STEM extension to pending 17-month STEM applications. Beginning 10 May 10 2016, [US Immigration Services] will issue Requests for Evidence (RFEs) to students whose applications are still pending on that date. The RFEs will allow students to effectively amend their application to demonstrate eligibility for a 24-month extension without incurring an additional fee or having to refile their application." The Transition Plan also addresses the case of students that currently have a 17-month Employment Authorisation Document (EAD) as of 10 May 2016. It notes, "Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked." However, for students with at least 150 calendar days remaining before the end of their 17-month OPT extension, "As a transitional measure, from May 10, 2016, through August 8, 2016, [such students] will have a limited window in which to apply for an additional seven months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT.”

Is this the end?

It remains unclear whether the new regulations confirmed this month will truly bring an end to a long period of uncertainty and worry for international STEM students in the US. The original court case remains open and is currently on appeal before the US Court of Appeals, where the Immigration Reform Law Institute (IRLI), the legal firm acting for the plaintiff in the case, has "renewed its argument that the OPT programme as a whole (not just the 2008, 2011, and 2012 expansions) is in excess of DHS’s statutory authority." This strategy bears out one possibility that we explored in our earlier coverage: that by expanding the 2008 STEM extension for OPT, DHS could perhaps expose the programme to a broader legal challenge. As immigration lawyer David Ware told us earlier this year, the now-confirmed regulatory changes could yet lead to further litigation. Since the judge had ruled that the 2008 process rather than the policy was at fault, "if the proposed rule had just parroted the old rule, I don’t think there’d be any or much possibility of new litigation," he says. "But since the new rule expands OPT, I think we could see some new litigation." What this means in practical terms is that, for the moment at least, the regulations are clear as published earlier this month. The new rule places some additional burdens on prospective US employers of international STEM graduates, however, and it remains to be seen how this will impact employer demand for foreign graduates in the US. Perhaps most significantly, the OPT regulations will remain subject to future court rulings in the US. At the least, the court will have to rule on the current appeal that has been brought by the IRLI. But the broader framing of the STEM OPT extension under the new regulations introduced this month may have also inadvertently opened the door to further legal action in the future.