STEM OPT EAD Approvals Remain Valid After February 2016

Important Update:

Earlier today, December 15, 2015, a USCIS representative contacted AILA to clarify that no decision has yet been made that STEM optional practical training (OPT) employment authorization documents (EADs) will remain valid after February 12, 2016. The USCIS has now clarified that this question is still under review. As soon as the USCIS provides a definitive answer, an update will be posted on MurthyDotCom.

[Updated 15.Dec.2015; 7:53pm.]

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Original Article

There continues to be uncertainty surrounding the STEM optional practical training (OPT) regulation. The existing STEM OPT rule will terminate on February 12, 2016. A revised STEM OPT regulation is under review. One question that the U.S. Citizenship and Immigration Services (USCIS) has clarified is the validity of existing STEM OPT employment authorization documents (EADs) that have expiration dates beyond the February 12 end-date of the current program.

Background: STEM OPT Challenge

The STEM OPT regulation was challenged in court, and it was found to have been improperly implemented. As a result, the court vacated the regulation, effective February 12, 2016. The U.S. Department of Homeland Security (DHS) is working to enact a new regulation that will replace the soon-to-be defunct rule. The proposed replacement regulation was published in the Federal Register on October 19, 2015 and the goal is to have the new STEM OPT rule finalized and put into effect before the existing rule is terminated in February. But, there is no guarantee that this will occur. More details on the proposed rule are available in the MurthyDotCom NewsBrief, New STEM OPT Proposed Regulation Published (20.Oct.2015).

EAD Approvals Remain Valid After February 2016

In light of all of the STEM OPT developments, the USCIS Nebraska Service Center (NSC) was asked about the validity of previously approved STEM OPT EADs with expiration dates beyond February 12, 2016. Specifically, the USCIS was asked whether STEM OPT cards with validity dates beyond February 12th will remain valid. The NSC confirmed to the American Immigration Lawyers Association (AILA) that such EAD cards will remain valid, even after the STEM OPT regulation is revoked and/or changed.

This guidance to AILA only addresses the limited group of people who have STEM OPT EAD approvals in hand. However, it also confirms that those who are eligible for STEM OPT should continue to pursue this benefit, even with the looming termination date.

Conclusion

The six-month delay in the termination of the STEM OPT regulation was intended to provide the DHS with sufficient time to implement a corrected replacement regulation. While it is hoped that this matter proceeds seamlessly, the proposed STEM OPT regulation includes substantial changes to the program. These changes, plus the fact that the DHS must review the tens of thousands of public comments that were submitted in response to the proposal, add to the review process. MurthyDotCom will continue to update readers on developments in this key area.

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