Ruling threatens USA post-study STEM work scheme

20 August, 2015

A recent federal court ruling could potentially curtail the USA’s extended post-study Optional Practical Training (OPT) scheme for international student graduates in the STEM fields, with the government needing to draft new legislation by February 2016.


The US District Court for the District of Columbia last week ruled that the Department of Homeland Security (DHS) did not follow required procedures when it introduced an extension to OPT for international students that have graduated in the STEM (science, technology, engineering and maths) fields in 2008.

The STEM extension allows for the regular 12-month period of OPT post-study work in a field related to the subject of study to be stretched to a maximum of 29 months.

Following a challenge by a trade union called the Washington Alliance of Technology Workers, Judge Ellen Segal Huville ruled that the extension was issued without appropriate public notice and comment and was therefore void.

However, the judge stayed the ruling for six months until February 2016 to allow the DHS to submit the rule again with appropriate public notice. There will be no immediate impact on students currently engaged in STEM OPT extensions.

Other elements of the 2008 amendments that could be threatened by the ruling include: the provision that F-1 OPT trainees can automatically change to H-1B (temporary work visa for foreign workers) status even if their OPT ended prior to the October 1 start date of their H-1B; and a 60-day grace period after graduation to file OPT requests.

The court ruling stands in contrast to previously announced plans to extend the OPT scheme beyond its current offer. A set of Executive Actions on Immigration announced earlier this year by President Obama stated that US Citizenship and Immigration Services would “work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law”.

In the most recent quarterly data issued by the Student and Exchange Visitor Program (SEVP) for February 2015, there were 414,613 international students enrolled on STEM programmes, 37 per cent of the overall total of overseas students on either F-1 or M-1 visas.

Steve Tobocman, Director of Global Detroit, a regional economic development group that promotes the recruitment of international graduates, said he was not discouraged by the ruling based on procedural grounds, and said President Obama had demonstrated a strong commitment to enabling US employers to utilise global talent.

“The judge went out of his way in the ruling to note that the STEM Extension for OPT is within the authority granted to the Executive Branch under US immigration law. I fully expect that the ruling paves the way for a broader 17-month OPT extension for international students with US degrees in high demand. I don't expect the ruling will create any disruption to existing OPT holders and that a new, broader policy will be in place before any negative impacts come to bear from the procedural errors made in creating the current policy.”

An online petition to the White House urging regulation to extend the OPT scheme was launched on August 14 and had received 59,898 signatories at the time of writing. A total of 100,000 signatures is required by September 13 to meet the threshold for an official response.

The foreword to the petition states, “Companies in various industries will lose a large number of contributing foreign employees, who will also have to face severe hardship. The ruling will potentially send false signals of tightening immigration policy to future foreign students in STEM fields and discourage them from coming to the US for scientific research. To avoid the massive impact on the US economy and education sector, we urge the White House to put in place a new, properly processed set of rules for the extension of the STEM OPT before February 2016.”

Matthew Knott
News Editor



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