In a largely anticipated move, the US District Court for the District of Columbia granted DHS’ motion to extend the Stay Order of the STEM OPT program, permitting the program to continue to exist under its current regime for an additional 90 days.
In August 2015, the STEM OPT program, which allows foreign national graduates of U.S. universities to extend their post-graduate work authorization an additional 17 months if (i) the graduate’s degree falls within the list of approved STEM disciplines and (ii) the STEM employer is enrolled in E-Verify; was dissolved by the District Court on procedural grounds. Such dissolution, however, was initially stayed for six (6) months to allow DHS time to fix the program’s procedural deficiencies. With the recently granted extension of the stay, the District Court has now ensured that the current STEM OPT regulations will remain in effect until May 10, 2016, and has further given DHS some additional time to vet the overwhelming volume of public comments it received about the existing program and to make any necessary changes.
While this decision was not a surprising one, it does come as welcome news to the more than 23,000 STEM OPT participants currently working in the United States. In particular, if the stay was not granted beyond April 1, many of the STEM OPT graduates would no longer have been eligible to apply for H-1B visas under this year’s H-1B cap as many would no longer be work authorized leading up to the April 1 filing date and, thus, would no longer be eligible for the automatic OPT extension provided by the “Cap Gap” measure initiated by USCIS.
This process, however, is far from over, as DHS will still need to review the public comments on its newly proposed STEM OPT amendments and implement a final rule by May 10, 2016. Our firm will continue to monitor the progress of the STEM OPT program and will keep you updated on any new developments. Stay tuned!