Federal Court Extends STEM OPT Protection Through May 10, 2016

February 3, 2016

A federal court has recently extended through May 10 the date upon which the USCIS may provide a new rule governing F-1 students who hold a STEM OPT employment authorization document (EAD). In a lawsuit challenging the validity of the STEM OPT program, the court ruled in August of 2015 that the USCIS indeed possessed the authority to create the STEM OPT program, but that it had failed to follow proper procedure when publishing the original STEM OPT regulation in 2008. The court therefore invalidated the 2008 regulation, but stayed its ruling until February 12, 2016 in order to provide time to the USCIS to create a replacement rule satisfying procedural requirements and to avoid unnecessary hardship to F-1 students.
The USCIS has since requested more time to finalize the new rule. As a result of the recent court order, F-1 students with an unexpired STEM OPT can continue to work beyond February 12, 2016. The USCIS can likewise continue accepting new applications for STEM extensions of OPT and can approve those applications for the full 17 months allowed by existing regulations. The USCIS expects to publish the new rule before the May 10 deadline, with the new rule becoming effective 30 days after publication. The new rule is expected to lengthen the STEM OPT extension period to 24 months, from 17 months. Those who already have a STEM OPT EAD when the new rule takes effect would to be eligible for an additional seven months of work authorization.