Category Archives: F1 Visa Blog Posts

The Court Stays the Vacatur of the 17-Month STEM Rule!

On Friday, January 23, 2016, the Court in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security granted DHS’s motion for limited relief to stay the vacatur of the 17-month STEM OPT extension until May 10, 2016. The majority of the Court’s opinion deals with the legal procedures the Court had to satisfy before rendering its decision. Without delving into the specifics of legal jurisprudence, the Court ultimately decided that it had jurisdiction to render a decision on the motion, that the motion was timely filed, and that it qualified under the “catch-all” provision of Rule 60(b), which is a request for relief when extraordinary circumstances require such relief.

The Court then reasoned that events subsequent to the Court’s initial stay have “proven the Court’s timetable for re-promulgation to be overly optimistic, thus warranting an extension.” In plain English, the Court realized the time allotted to implement a new rule, complying with the notice and comment requirements, was not sufficient. At the same time, the reason for the stay remains – undue hardship to STEM OPT participants and employers should the rule lapse. In fact, the Court stated “The significance of that hardship cannot be overstated. According to DHS, there are approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations.”

In determining to grant DHS’s motion to extend the stay until May 10, 2016, the Court reasoned that “If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorization, not being able to apply for the OPT extension, or not knowing whether they will be able to benefit from the extension in the future. And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students.” Therefore, F-1 Students can breath a little easier now that the 17-Month Rule will remain in effect until the 24-Month Rule has adequate time to take effect.


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Update on Proposed STEM Extension Rule

On December 22, 2015, the Department of Homeland Security motioned the U.S. District Court for the District of Columbia to extend the stay of vacatur for approximately 90 days. In plain English, DHS asked for more time under the current 17-month STEM Extension. The justification for DHS’ request is extraordinary circumstances – 50,500 comments to be exact. That is not a typo. The DHS received an exorbitant number of comments to review; far too many for the typical 30 day review and revision period. For this reason, the DHS request an additional 30 days, which if granted, would allow the DHS 30 days for public examination and comment, 60 days for revision and rulemaking, and 60 days for delayed-effective-date as required for significant rule changes. If granted, the 17-month STEM extension would remain in effect until May 10, 2016. If denied, it is unclear how the Court would deal with the detrimental impact to students and employers alike.

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Immigration Advocates Comment on 24-Month Stem Extension

On November 18, 2015, the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) submitted comments to the Department of Homeland Security regarding the proposed 24-Month Stem Extension Rule, Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students. AILA is a voluntary bar association of more than 14,000 attorneys and law professors practicing, researching and teaching in the field of immigration and nationality law. The American Immigration Council is a non-profit organization established to increase public understanding of immigration law and policy, advocate for the fair and just administration of our immigration laws, protect the legal rights of noncitizens, and educate the public about the enduring contributions of America’s immigrants. The highlights to their comments are as follows:

  1. Automatic Cap-Gap Extension Language – amend the regulations to provide for a cap-gap extension that is valid through October 1, or the date of the decision on the H-1B petition, whichever is later.
  2. Definition of STEM fields – amend the definition to provide greater flexibility in the selection of qualifying CIP codes.
  3. Definition of Employment – amend the definition to address self-employment and non-salary compensation during the STEM OPT extension period, such as to join a fledgling incubator project, to incorporate a business, or to engage in other entrepreneurial ecosystems.
  4. Mentoring and Training Program Plan – amend the regulatory language with Form I-910 to reconcile whether the employer or the employee bears the primary responsibility for preparing the Mentoring and Training Program.
  5. Role of the Designated School Official (DSO) – amend the regulatory language to clarify whether the DSO’s role is limited to a simple technical review of the form to ensure completeness or is responsible for guaranteeing the substance of the plan.

 We should see a final rule published by DHS within the next 2 weeks. It will be interesting to see what, if anything, has changed from the proposed rule. Immigration in Plain English will be following this closely.

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Proposed 24-Month STEM OPT Extension: Detailed Outline

As the comment period for Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students is set to expire on November 18, 2015, we at Immigration in Plain English thought it necessary to outline the changes described in the 107 page proposed rule in plain English. What follows is a brief summary of the proposed change highlights, basic qualifications for F-1 and OPT, and then a break-down of each section of the proposed rule. There is still one week to make comments on any of the outlined subsections. DHS underlined the relevant text for which it is seeking comment in the public inspection document. We hope this provides some clarity as to the expected changes for the final rule of the 24-Month STEM OPT extension.

Summary of Proposed Rule

This proposed rule, if made final, would permit eligible STEM graduates to receive a maximum STEM OPT extension of 24 months; permit eligible STEM graduates who have obtained a second qualifying STEM degree to obtain a second STEM OPT extension of 24 months; permit eligibility for the extension based on a STEM degree that is not the student’s most recently obtained degree; limit eligibility for STEM OPT extensions to students that graduate from accredited institutions; require that students on STEM OPT extensions receive conditions of employment, including compensation, commensurate with similarly situated U.S. workers; require the disclosure of additional information, such as the student’s compensation, to ICE; implement a formal process to update the STEM Designated Degree Program list; implement a formal mentoring requirement for students on STEM OPT extensions; and require employers of students applying for STEM OPT extensions to enroll in and use E-Verify on all new hires.

Qualification for F-1 Students

  • Must be a nonimmigrant admission
  • Must be a full-time students
  • Must be enrolled in a full course of study
  • Must achieve a degree at the conclusion of study
  • Must be at a qualifying institution authorized by the U.S. government
  • Must have sufficient funds to self-support during the entire course of study

Qualification for Optional Practical Training (OPT)

  • Must be temporary employment
  • Must directly relate to course of study
  • Must complement course of study
  • May apply for 12 months of OPT at each education level
  • May be part-time, “pre-completion OPT”
  • May be full-time, “post-completion OPT”

Elements of Proposed STEM OPT Extension

A. STEM OPT Extension within OPT Program

  • Encourage international students consistent with September 2011 “Study in the States” initiative
  • Enhance U.S. economic, scientific and technological competitiveness
  • Expand post-graduate opportunities in the U.S.
  • Drive economic growth and cultural exchange in the U.S.

B. 24-Month STEM OPT Extension

  • STEM OPT extension for 36 months of practical training (12/mo OPT + 24/mo OPT STEM)
  • Unemployment period limited to 150 days
  • Students who complete 2nd STEM degree at a higher educational level permitted additional 24-month STEM extension
  • Applications submitted prior to the effective date of the proposed 24-month STEM OPT Extension final rule will be adjudicated under the 17-month extension regulations
  • Students on 17-month STEM may request a modified extension up to 120 days before the end of the student’s 17-month extension period once the proposed 24-month STEM Extension becomes final
  • Targeted to complement the complexity student’s academic experience and typical durations of research, development, testing and projects
  • Align the length of OPT + STEM with the length of grants or fellowships awarded by the National Science Foundation to universities, colleges, and research laboratories, which typically last 3 years

C. STEM Definition and CIP Categories

  • STEM Field includes those in the Department of Education’s CIP taxonomy within the summary groups containing mathematics, natural sciences (including physical sciences and biological/agricultural sciences), engineering/engineering technologies, and computer/information sciences, and related fields

D. Mentoring and Training Plan

  • Formal mentoring and training program required for employer sponsorship of STEM OPT
  • Employer must offer formal plan for practical training and skill enhancement
  • Student must  prepare “Mentoring & Training Plan” for review by Designated School Official (DSO)
  • Employer and student must design training plan that enhance practical skills and methods of degree
  • Student must provide DSO with evaluation of “Mentoring & Training Plan” goals every six (6) months
  • Employer must approve and sign “Mentoring & Training Plan” goal evaluation for submission to DHS

E. E-Verify Program

  • E-Verify program is an important measure to ensure the integrity of the STEM OPT extension
  • E-Verify is currently free to employers and is available in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands
  • E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 (herein Form I-9) with records contained in government databases to help employers verify the identity and employment eligibility of newly-hired employees.
  • E-Verify requires an employer to enter into a Memorandum of Understanding with DHS and SSA whereby the employer agrees to abide by current legal hiring procedures and to follow the E-Verify process, which is designed to prevent unauthorized disclosure of personal information and unlawful discriminatory practices based on national origin or citizenship status

F. Previously Obtained STEM Degrees

  • Students may use a previously obtained and directly related STEM degree from an accredited school as a basis to apply for a STEM OPT extension, even if the current OPT is not based on a STEM degree
  • Students would not be able to use a previously obtained degree to obtain a STEM OPT extension immediately subsequent to another STEM OPT extension, so two consecutive STEM extensions would not be permitted
  • The DSO of the student’s school of most recent enrollment would be permitted to certify prior STEM degrees
  • STEM degrees from foreign institutions would not be permitted to qualify under the previously obtained degree proposal

G. Safeguarding U.S. Workers through Labor Market Protections

  • Employer must attest to the following
  • (1) the employer has sufficient resources and personnel available and is prepared to provide appropriate mentoring and training in connection with the specified opportunity;
  • (2) the employer will not terminate, lay off, or furlough a U.S. worker as a result of providing the STEM OPT to the student; and
  • (3) the student’s opportunity assists the student in attaining his or her training objectives
  • Terms and conditions of STEM practical training opportunity, including duties, hours, and compensation, be commensurate with those provided to employer’s similarly situated U.S. workers

H. Oversight through School Accreditation and Employer Site Visits

  • Qualifying degrees for the STEM OPT extension must be from accredited U.S. institutions of higher education
  • ICE, at its discretion, may conduct “on-site reviews” to ensure that employers meet program requirements, including compliance with assurances regarding the ability and resources to provide structured and guided work-based learning experiences according to the individualized Mentoring and Training Plans

I. Additional Compliance Requirements

  • Employers must report to relevant DSO when F-1 student on STEM OPT extension terminates or otherwise leaves his or her employment prior to the end of the authorized period of OPT within 48 hours of employment termination
  • Students who are granted STEM OPT extensions are required to report to their DSO every six months, confirming the validity of their SEVIS information, including legal name, residential or mailing address, employer name or address, and/or loss of employment
  • Student seeking an extension would be required to properly file Application for Employment Authorization within 60 days of the date the DSO enters the recommendation for the STEM OPT extension into the SEVIS record

J. Cap-Gap Extension for F-1 Students with Timely Filed H-1B Petitions

  • Cap-Gap relief would continue to allow for automatic extension of status and employment authorization for any F-1 student with a timely filed H-1B petition and request for change of status, if the student’s petition has an employment start date of October 1 of the following year

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24-Month STEM OPT Extension Rule Summary

On October 16, 2015 at 8:45 a.m., the Department of Homeland Security filed the proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” which will replace the 17-Month STEM Extension.” The proposed rule will be published in the Federal Register on Monday, October 19, 2015, for public comment. The timeline for publication of a final rule is tight but doable. A summary of the key elements to the proposed STEM Extension are as follows:

  • 24-Month Extension of Optional Practical Training (OPT)
  • Formal Mentoring and Training Program Requirement
  • Prior U.S. STEM Degree from Accredited Institution May Be Used for Extension
  • Duty, Hour, and Compensation Requirements to Protect U.S. Workers
  • DHS Discretion for Employer Site Visits
  • Additional 60-Day Allotment for Unemployment (Aggregate of 150 Days)
  • E-Verify Employer Requirement
  • Student Reporting Requirement to DHS
  • Cap-Gap Extension for Timely Filed H-1B Petitions

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STEM OPT Rule Timeline Explained

According to the Administrative Procedure Act (APA), the regulatory action must go through a specific procedure in order to become final. This is precisely what did not occur with the existing, or prior, STEM OPT Extension rule(depending upon how you look at it), which the court in Washington Alliance of Technology Workers struck down on August 12, 2015. Under the APA, a federal agency that intends to create a new rule under its authority must propose the rule, request public comment, collect the comments, and then publish a final rules that accounts for all comments made. The agency, however, is not required to incorporate any of the comments into the final rule. By operation of law, it does have to provide a reasoned explanation for the choices made when finalizing the rule.)

For the rule that will become the new STEM OPT Extension Rule, the timeline and procedures are getting tight. To illustrate, we will start with the effective date of the Court’s ruling in Washington Alliance, February 12, 2016. First, there is a mandatory 60-day abeyance, or hold, between publication of the final rule and date upon which the rule can take effect because the rule is considered a “significant rule” under Executive Order 12866. Thus, for the STEM OPT Rule to take effect on February 12, 2016, the final rule must be published no later than December 14, 2015, or exactly 60 days prior.

Prior to publishing a final rule, however, a proposed rule must be published for public comment and the rulemaking agency must have adequate time to review and incorporate or reject the comments. The APA recommends 60 days for comment and revision, but only mandates that 30 days be provided for the public comment portion. Calculating backward using the APA’s recommended timeframe, the Department of Homeland Security should publish its proposed STEM OPT Extension replacement rule to the Federal Register by October 15, 2015. Failing to do so would place tremendous pressure on the agency to complete the revision process in less than 30 days or to allow the current STEM OPT Extension program lapse.

However, it is unlikely for a lapse to occur. Several variables are in play to prevent such a detrimental event from occurring. First, the Washington Alliance decision is on appeal and cannot take effect until the appeal has been resolved. Secondly, DHS would likely expedite this rule, given the great harm it would have on U.S. business and the economy, not to mention foreign-national students. Third, DHS would definitely want to avoid the nightmare it would face in re-processing ever I-20 and employment authorization document due to expiration of the rule. Finally, the President could by executive action toll the period between the two rules, thereby preventing expiration.

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F-1 Student STEM Extension Rule Renewal in Sight

The Department of Homeland Security has taken its first step in renewing the STEM Extension since the Washington Alliance decision that sent shockwaves through the hearts of tech companies and foreign students in early August. On October 2, 2015, DHS submitted its rule proposal, Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions, to the Office of Information and Regulatory Affairs. The OIRA reviews draft proposed and final regulations submitted by Executive Agencies to ensure agency compliance with Executive Order 12866 and the Administrative Procedures Act.

The “rulemaking” process begins when an agency decides that a regulatory action is necessary or appropriate. First it develops and typically publishes a proposed rule in the Federal Register, soliciting comments from the public on the regulatory proposal. After the agency considers this public feedback and makes changes where appropriate, it then publishes a final rule in the Federal Register with a specific date upon which the rule becomes effective and enforceable. In issuing a final rule, the agency must describe and respond to the public comments it received. The period for OIRA review is limited by Executive Order 12866 to 90 days; however, the timeline for each stage of the process is not fixed. Each step is outlined in The Reg Map, which provides a detailed account of the informal rulemaking process.

Exciting news for all who are dependent upon employment-based immigration options to attract high-skilled workers. We will keep a sharp eye on this proposed rule. Finally, a step in the right direction.

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Sign The Petition to Extend 17-Month STEM OPT

STEM Petition

Picture Links to Petition to Extend STEM OPT

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

-The First Amendment, United States Constitution

The right to petition the government is guaranteed by the First Amendment of the United States Constitution. We the People provides a new way to take action on a range of important issues facing our country. If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.

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Full Opinion: Washington Alliance of Technology Workers v. U.S. Department of Homeland Security

Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security

What may become one of the most detrimental court opinions to foreign national students, U.S. employers, and the U.S. economy, can be read in its entirety in the heading link. The decision will adversely affect the aforementioned as follows:

  • On February 12, 2016, F-1 STEM work authorization will immediately terminate. This will affect both F-1 students who currently hold STEM OPT as well as individuals who would be eligible for STEM OPT as of February 12, 2016.
  • H-1B/F-1 cap gap will no longer be automatic but will depend upon DHS taking affirmative action to make a formal announcement when the H-1B cap is met and then must publish notice in the federal register.
  • F-1 students will no longer be permitted to apply for work authorization after graduation, accelerating the time by which they must secure an offer of employment.


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Court Strikes Down 17-Month OPT STEM Extension Rule

Shockingly in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security, U.S. District Judge Ellen Segal Huvelle invalidated USCIS’s 2008 17-month Optional Practical Training (“OPT”) extension rule. The case, decided on August 12, comes as a huge blow for U.S. businesses, especially in the tech fields, who depend upon the talent pool afforded by the F-1 visa program. What follows is an overview of the F-1 program, optional practical training, and the damaging effects the Washington Alliance case will have on U.S. businesses.

Pursuant to the Immigration and Nationality Act (“INA”), foreign nationals are permitted to enter the U.S. temporarily for the purposes of pursing a full course of study at an established academic institution in nonimmigrant status known as F-1. For nearly 70 years, the Department of Homeland Security (“DHS”) and its predecessor, Immigration and Naturalization Services, have permitted these F-1 students to engage in employment for practical training purposes. Prior to 2008, F-1 students were authorized for up to 12 months of OPT as long as it was completed within 14 months of completing the course of study. In April 2008, DHS issued an interim final rule that extended OPT for F-1 students with a qualifying degree in science, technology, engineering, or mathematics (“STEM”). The purpose for extending OPT was to allow U.S. employers to recruit and retain these highly skilled foreign students who would otherwise be forced to leave the country to work for competitors.

In striking down the 17-month Optional Practical Training (“OPT”) extension rule, Judge Huvelle held that DHS failed to show it faced an emergency situation in 2008 that would allow it to bypass the notice and comment period required by the Administrative Procedure Act. While Judge Huvelle’s affords little consideration for how this decision will affect U.S. employers and the economy, she does note that “immediate vacatur of the 2008 Rule would be seriously disruptive” and “would force ‘thousands of foreign students with work authorizations . . . to scramble to depart the United States.’” For this reason, Judge Huvelle stayed her decision until February 12, 2016.

To overcome this decision, the Department of Homeland Security must pass a new rule consistent with the APA’s notice and comment requirements. 

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