Stem Opt Is At Risk Unless Dhs Passes New Rules

The U.S. District Court for the District of Colombia significantly curtailed immigration benefits for foreign students in the United States on F-1 visas. In her opinion in the case Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security, U.S. District Judge Ellen Segal Hovelled invalidated USCIS’s 2008 17-month Optional Practical Training (OPT) extension rule. DHS argued that it had good cause to publish the regulation in 2008 as an emergency rule because thousands of highly skilled individuals educated at U.S. colleges and universities would otherwise have been forced to leave the U.S. Judge Hovelled held that DHS failed to show it faced an emergency situation in 2008 that exempted it from carrying out the notice and comment requirement, thus making DHS’ rule invalid.

Judge Hovelled stayed her decision until February 12, 2016 because the “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.’”

Unless DHS passes a new rule this decision will adversely affect three key areas of business immigration:

1. F-1 STEM work authorizations will stop being valid on February 12, 2016. 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.
2. H-1B/F-1 cap gap will no longer be automatic. DHS will have to formally announce that the H-1B cap is met and then publish a notice in the federal register. This will result in uncertainty for both employers and F-1 students, as “cap Gap” protections will no longer be automatic but will instead depend on affirmative action by DHS.
3. F-1 students will only be permitted to apply for work authorization while still in school; post- graduation applications will be no longer available.