The Department of Homeland Security has asked the U.S. District Court for the District of Columbia to extend the termination of the current STEM OPT program from February 12, 2016 to May 10, 2016 in an effort to review the 50,500 comments it received on the replacement regulation. DHS estimates that over 85 percent of the comments are unique and must receive responses before a final rule can be published.
“The agency received an unprecedented number of public comments in response to the 2015 [notice of proposed rulemaking] and needs additional time to review and consider the comments before completing the STEM OPT rulemaking,” the agency said.
In August the federal court sided with an alliance of American tech workers and struck down the 17-month extension of the Optional Practical Training (OPT) program for foreign students on an F-1 visa who graduated with a degree in a STEM field.
The program allows foreign students to work in the United States for a short period of time after graduation to gain experience before returning to their home country. Non-STEM graduates may only stay for 12 months but the 17- month STEM extension was added in 2008.
The court ruled that DHS violated the Administrative Procedure Act (APA) when it bypassed the public notice and comment process required before issuing the STEM extension.
The court gave the agency six months (until February 12) to submit a new rule and go through the correct process. Due to the large number of comments the regulation could not be published in the Federal Registrar by December 12 in order to meet the 60-day requirement and take effect before the February deadline. If the court does not grant the three-month extension the current STEM OPT regulation will expire before the new regulation can replace it.
The new rule would extend the OPT program for students in STEM fields to 35 months. This expansion would allow many companies to circumvent guest worker visa caps and replace American workers with cheaper foreign student workers. The OPT graduates are exempt from payroll taxes and there is no wage requirements or visa caps on the program.
Read more on this story at Law360.com.
