Court grants USCIS time to reissue OPT STEM regulations

A federal court has provided U.S. Citizenship and Immigration Services six months to correct its rulemaking procedures related to regulations allowing F-1 students in science, technology, engineering, and mathematics (STEM) fields to extend their optional practical training (OPT). Although the court found that the regulations were improperly passed as emergency rulemaking in 2008 and should have been subject to public notice and comment, the court noted that immediate action would cause a substantial disruption to U.S. businesses and its OPT employees and, therefore, the agency should be given time to re-issue the OPT-STEM regulations.

Despite invalidation of the current rule, the court did find that DHS’ interpretation of F-1 visa provisions that allow for OPT extension were reasonable in light of the agency’s broad authority to regulate the stay of nonimmigrants and Congress’ long-standing acknowledgement that foreign students may engage in practical training. The court’s finding gives deference to DHS’ authority to continue issuing regulations for OPT extension, provided it uses the proper rulemaking process.

According to DHS, approximately 70,000 F-1 students were in the OPT program in 2008 and one-third had earned degrees in STEM fields.

BAL Analysis: The court delayed the effective date of its ruling to allow the government time to issue new regulations and to avoid any disruption in the work authorization of F-1 STEM students. This is welcome news as it signals a desire by the court to avoid any adverse impact on current F-1 students who relied upon the existing regulation. Because the administration has already been working on a new regulation, it is expected that OPT options for STEM graduates will continue without interruption and may even be expanded. The contours of that new regulation will be finalized in the next few months and companies interested in monitoring or influencing the issue should get in touch with a BAL professional.

For more BAL coverage on the OPT-STEM regulations, please see:

Federal lawsuit challenges Optional Practical Training Program for foreign students

DHS releases additional details on proposed OPT program changes

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