Progress in Reimplementation of STEM OPT Rule

As previously reported (02.Oct.2015), the U.S. Department of Homeland Security (DHS) submitted a new proposed rule on STEM optional practical training (OPT) for review by the Office of Management and Budget (OMB). Notice of the submission is available online, but, at present, no specifics regarding the proposal are available.

Prior STEM OPT Regulation Vacated

This proposed new rule is in response to a U.S. district court decision that will vacate (i.e. nullify) the existing STEM OPT regulation, effective February 12, 2016. As explained in the MurthyDotCom NewsBrief, STEM OPT Could End in February 2016 (24.Aug.2015), the existing program was struck down because the court found that the U.S. Department of Homeland Security (DHS) failed to abide by the procedures required by law for a federal agency to enact a new rule. The court allowed the program to remain in place through February 2016 in order to give the DHS sufficient time to properly reauthorize the STEM OPT rule.

Additional Steps in Rulemaking Process Still Required

The submission to the OMB is an initial step in the rulemaking process. The next step generally would be to have the proposed rule published in the federal register, at which point the public would be permitted to submit comments on the proposal to the DHS. Then, the DHS is required to review and consider these comments prior to making any final decision on the proposed regulation.

Murthy Law Firm Working to Have New Rule Implemented ASAP

It is hoped that the proposed STEM OPT regulation will be implemented prior to the February 12th termination date of the existing program. To that end, the Murthy Law Firm is working with the Telugu Association of North America (TANA) to petition Congress for help in ensuring the rule is implemented quickly. More details on these efforts, as well as the firm’s endeavors to pressure Congress to intervene in having the original version of the October 2015 Visa Bulletin reinstituted, are discussed in the MurthyBlog entry, Murthy Law Firm & TANA Pushing for Congressional Help on Vital Immigration Issue (07.Oct.2015).

No Details of Proposed Rule Yet Available

As mentioned above, details of the proposal are not yet available. The title of the proposed rule submitted to the OMB is Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H1B Petitions. The existing STEM OPT rule includes various cap-gap provisions, so it is logical that cap-gap provisions would be included within any new proposed rule. MurthyDotCom will post any update on the details of the proposals once it is published in the federal register.

Conclusion

Last year, when President Obama proposed a number of ways to improve the U.S. immigration system, he asked the DHS to investigate the possibility of increasing the duration and eligibility for STEM OPT benefits. The subsequent court decision to cancel the program altogether is certainly not what the President had in mind. Still, it is encouraging to see that the DHS is working to reimplement the program. And, it certainly is possible that this new version will include some overall improvements to the STEM OPT program. Subscribe to the free MurthyBulletin to have updates on this proposed regulation, and all immigration news, delivered directly to your inbox.

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