Tuesday, September 8, 2015

Legal Expert Weighs in on the Future of STEM OPT Extension

Robert Whitehill
We recently blogged about a District Court judge’s decision to vacate the rule that allows Science, Technology, Engineering, and Mathematics (STEM) degree holders from overseas to remain in the U.S. for an additional 17 months of training after graduation. So what does this mean for international students?

WES Student Advisor asked Robert Whitehill, an immigration and nationality lawyer for more than two decades, to simplify the situation for us. Whitehill is the chair of the law firm Fox Rothschild LLP’s Immigration Group.

Check out our Q&A with him below:

Q: Can you explain what it means if a judge vacates the rule that allowed for the optional practical training (OPT) period to be extended up to 17 months for STEM graduates?
Whitehill: In simple terms, the process that the government used to implement STEM Optional Practical Training (OPT) was challenged as not complying with the law – the Administrative Procedure Act (APA). The District Court judge agreed with the challengers (Washington Alliance of Technology Workers) that the government had NOT complied with the APA’s “Notice and Comment” requirement (see Washington Alliance of Technology Workers v. U.S. Department of Homeland Security).

The court acknowledged that to revoke STEM OPT or to immediately stop its issuance would cause extreme hardship to tens of thousands of students. To address this concern, the court issued an order vacating the 17-month STEM OPT extension, and gives DHS six months to issue STEM OPT regulations that comply with the APA. As such, the court’s order does not take effect until February 12, 2016. Of course, the case has not been finally concluded, and an appeals court could reach a different opinion.

Q: How will this affect overseas students in the U.S.?

Whitehill: One way the court’s order affects foreign students is that it creates anxiety about the future of STEM OPT. Of course, there is another side to the potential change of STEM OPT. In his executive action from November 2014, President Barack Obama directed DHS to develop new STEM OPT regulations “strengthening and extending the on-the-job training for STEM graduates of U.S. universities.” Since that announcement, if not before, DHS has been working on new regulations to expand and strengthen STEM OPT. 

Judge Huvelle’s order is prospective and should not have any effect on STEM OPT processing. Schools throughout the U.S. are still endorsing I-20s for STEM OPT, and United States Citizenship and Immigration Services (USCIS) is still granting the additional 17 months of STEM OPT.

Q: What does this mean for employers of international students who are working under the 17-month extension?

Whitehill: The case remains in the courts, so the answers to certain questions – maybe many questions – do not yet have a definite answer. As the court’s decision will not become operative until February 12, 2016, if at all, employers of international students on STEM OPT should be able to rely on the grant of STEM OPT as the basis of the students’ employment authorization. It is not likely that it would be lawful to withdraw STEM OPT retroactively, once granted. 

Q: What does this mean for the future of the OPT STEM extension program?

Whitehill: One thing for sure is that the STEM OPT extension program is a focus of groups seeking to restrict immigration as well as the administration, which is trying to strengthen and expand STEM OPT. The procedural requirements of the APA are time-consuming, and DHS has been working on new STEM OPT regulations for nearly a year. The decision by the District Court judge could be successfully appealed. Politics could either slow or speed up the process. 

My bet: Despite current anxiety, DHS will timely issue STEM OPT regulations that comply with the APA, and the program will continue uninterrupted, perhaps somewhat changed, past Feb. 12, 2016.

Q: What is the likelihood that the vacating of the ruling will become permanent? And on that note: What happens next in the process?

Whitehill: First, because the future of STEM OPT is not 100 percent certain, those students who are currently eligible for this benefit should secure the 17 months of additional OPT time for work at their E-Verify participating employer NOW. There will likely be additional litigation and political action, but what if STEM OPT actually ends in February for current and future beneficiaries?

International students and their employers need to start looking for ways to perpetuate the students’ lawful, work-authorized stay in the U.S. There are still possibilities if STEM OPT is vacated, but employment-based immigration becomes that much more challenging without STEM OPT. If worse comes to worst, a headline printed in Computerworld may become reality: “Working STEM students may be forced to leave U.S. next year, says court.

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