STEM OPT (as of August 12, 2015)


Recently,, a federal judge ruled that the Bush administration’s implementation of the 17-month extension of optional practical training (OPT) for international student STEM graduates was issued without appropriate public notice or comment. The Department of Homeland Security now has six months to act before the ruling goes into effect and eliminates the extension. The original 12-month standard OPT program is not affected by this ruling.


The United States District Court for the District of Columbia found that DHS' failure to provide notice and invite public comment at the time of the 2008 STEM OPT extension rule was "a serious procedural deficiency" that merits "vacatur" (i.e., rescinding, setting aside, annulling) the 2008 rule. It is important to note that the court found that establishing the STEM OPT benefit itself in 2008 was within the scope of DHS's regulatory authority, and that the court's decision to vacate was based on the procedural deficiency only. The court ordered "that the 17-month STEM extension described at 73 Fed. Reg 18,944 (Apr. 8, 2008) is VACATED, but that the vacatur is STAYED until February 12, 2016." The court also remanded the case to DHS "for further proceedings consistent with the Court's Memorandum Opinion." It is not clear from the wording of the order whether the vacatur will rescind the whole 2008 rule or just the part that established the 17-month STEM extension. In any case, DHS has been working on publishing a new STEM OPT regulation to cure the procedural defects of the 2008 rule and to address other issues raised with STEM OPT.


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