Ep. 57 Update on the OPT STEM Extension Decision: Federal Court Says Immigration Rule Allowing 17-month STEM Extension is Deficient

  • OPT STEM has been extended.
  • This ruling will basically stop OPT Program.
  • District Court Judge Ellen Hovel found that the government made an error by not seeking public when it extended the 12-month OPT Program for STEM students.
  • The ruling could have invalidated the OPT extension immediately but instead the government gave 6 months to submit the OPT extension rule.
  • If the problem isn’t solved within 6 months, the OPT extension will be canceled on all these visa holders. They will then have only 2 months to leave the country.
  • OPT was created in 2008 due to the shortage of H1B visa.

Raw Transcript:

Introduction: You ask, we answer your immigration questions. Simple. Now your host immigration lawyer, Jacob Sapochnick.

Jacob: Hello everybody, this is Jacob here your host of Ask an Immigration Lawyer. You ask, we answer. There’s been a lot of changes, propose changes, a lot of interesting things happening in immigration law in the past week or so. Many of you heard about the breaking news from last week on the OPT STEM Extension news that had happened and I wanted to kind of talk about that.

The ruling on the OPT Program really created a lot of problems for people that are working right now in the US and the extension and students. Basically what happened that a federal judge made a ruling last week that could potentially force thousands of foreign workers, people that are employed in tech companies, in science companies, that are here on student visas and that they continue to work under the option of practical training work authorization which is available for students as they graduate from universities. Basically this ruling will kind of stop this OPT Program.

The ruling released last Wednesday by US District Court Judge Ellen Hovel in Washington basically found that the government made an error by not seeking public comment when it extended the 12-month Optional Practical Training (OPT) to the 29th month for STEM (Science, Technology, Engineering, and Math) students.

As you remember, there was an extension of the traditional OPT for 29 months which was a huge thing and helped a lot of people that were stuck in the H1B a mess. This judge ruling could have invalidated this OPT extension effective immediately. But instead the government kind of gave 6 months until, I think, February 12, 2016 to submit the OPT extension rule for actual proper notice and comments and hopefully that will make it actually permanent.

I think that it’s basically the home and security that kind of overseas this rule. If they don’t fix the problem before the February 12 deadline, this OPT extension will be canceled with immediate effects on all these visa holders and they’ll have basically about 2 months to leave the country which is crazy.

The United States extended – to give the background. OPT was created in 2008 to give the STEM students, the students that are in the Science, Technology, Engineer, Math, more time to obtain H1B visas. As you know because we have a shortage of H1B visas because we have a lottery. It’s very difficult for people to work. The government said, “We know that these professions are in high demand so we’re going to give you this extension.”

The government argument was a demand for H1B visas was so high that it had to distribute the visas during this lottery and whatever they have done. If somebody didn’t get the H1B visa in lottery, they would have to leave the country or continue going to school which created a burden on employers and on the students. Of course, a lot of critics to the OPT extension claimed there was a backdoor H1B and things like that which, of course, we know it’s not.

According to the court ruling, the real problem is that they said that the government mistake is that when they adopted this extension as an emergency, it kind of bypassed it’s on public comment policy and requirements. And the judge said that this basically made this OPT extension invalid.

Right now we know that this OPT Program has been very, very popular in 2008 when the extension was adopted. I think there was more than almost 30,000 OPT applications were approved. In 2013 almost 120,000.

Right now it’s going to be very, very interesting because the government had 60-day notice period so everybody’s going to get it ready for the Department of Homeland Security to push this rule within this 6 months. It’s going to be pretty tight because February is coming up so we’ll see what happens.

We are hoping that the government is going to be able to … I’m recording this in August so I hope there’s going to be enough time for the DHS to propose that same rule again and provide the proper period for comments which is 2 months. And then the rule will be implemented again before February.

I’m hoping that it’s not going to affect the current STEM extension, and people that are currently using it, and also for future ones because we do have time until February.

This was the update on the OPT STEM extension and what the decision in the court ruling from last week means. I’m hoping that this makes sense. If you have any questions feel free to email us jacob@askanimmigrationlawyer. Of course, we’re going to keep you posted. But this is pretty big news. Hopefully this makes sense and I provide some light on this decision from last week.

Once again this is Jacob, you ask, we answer. We’ll see you at our next episode.

Closing: Thank you for listening to the Ask My Immigration Lawyer Podcast. The show that’s dedicated to answering your immigration questions. Simple as that. See you next week for another round of questions and much needed answers.