On August 12, 2015, the U.S. District Court of the District of Columbia ruled that a 2008 Department of Homeland Security rule extending the period of optional practical training (OPT) by 17-months for STEM (Science, Technology, Engineering and Mathematics) students on F-1 visas was invalid, because DHS promulgated the rule without proper notice and comment.
The court found, however, that vacating the rule immediately would cause substantial hardship for F-1 students and would create a major labor disruption for the tech sector. As such, the court ordered that the 2008 rule and its subsequent amendments be vacated, but not until February 12, 2016, during which time the Department of Homeland Security may submit the rule for proper notice and comment.
The 29-months of work authorization for STEM graduates served as a critical bridge between graduation and qualifying for H-1B status. This 29-month period has been particularly important due to a critical shortage of H-1Bs in the past two years, resulting in H-1B “lotteries” and many H-1B applicants needing more than 2 years/tries before being selected to receive H-1B status.
Clearly, this issue is critical for the U.S. tech sector and we expect STEM EAD will be reinstated. Immigration Law Group will continue to post updates on this issue.