Updated : October 5th, 2015
It has been crazy and shocking news for many of the F1 students working on OPT with the federal judge issuing judgment saying that the 17 month OPT STEM extension rule will be vacated ( cancelled) from February 12th 2016 as US Dept. of Homeland Security (DHS) did not follow the correct process of notice and comment period for issuing the OPT extension rule for 17 months for US STEM degree holders back in 2008, when the rule was issued. There was so much of speculation by many on options for DHS…finally on October 2nd, 2015, official rule to address this was posted on RegInfo.gov indicating the details. DHS Plans to re-issue the rule formally as per process, within the deadline and working hard on this. There is so much of speculation and confusing among many of the current students on OPT and future OPT applications, including aspiring students planning to study in US. Below are some of the commonly asked FAQs around this on our blog. We will keep adding FAQs to this list as we get more questions.
I have a STEM degree from US school and working on 12 month OPT now, which is expiring by December 2015. Can I apply for OPT Extension like normal? Will USCIS approve my OPT extension?
As of now, nothing changes. You can apply for 17 month OPT extension as usual with normal procedure up to 120 days before the expiry date and USCIS would approve your OPT extension. DHS/USCIS updated its stakeholders on October 2nd that the rule would be re-issued and they are working on it. No new guidance has been given by DHS/ USCIS, so everything goes normal and USCIS should process everything normally. As per USCIS, they plan to re-issue the 17 month extension rule by Feb 12th, 2016 and everything would stand as normal.
I have my 17 OPT STEM Extension until July 2016. What happens to me after Feb 12, 2016 ? Can I continue to work after that as I got the OPT approved already beyond Feb 2016 ?
Well, technically, if the court ruling holds, the OPT extension rule will be vacated (cancelled or revoked) by Feb 12, 216. What it means is that even though your OPT extension is approved beyond that date, it will not be valid. So, you cannot work after that period on OPT. You will have 60 days grace period after that date to look for alternatives or leave USA.
I have a STEM degree from US and my 12 month OPT expires on May 1st, 2016. Can I apply for OPT extension in Jan 2016 and get OPT Extension ? Will I get OPT extension for 17 months and work in US after Feb 12, 2016 ?
Well, technically you can apply for OPT extension 120 days before the expiration date, so you can apply for that. But, having said that it is not sure how USCIS will handle the extension at this point and how many months they will issue. Even, if USCIS issues 17 months OPT extension beyond Feb 12, 2016, if the rule is not re-issued by standard process by USCIS and court ruling holds, you may not able to work after Feb 12 as the OPT stem rule would be vacated or cancelled by that time. Updated : on October 2nd, the details of the new proposed rule for STEM OPT Extension are published on RegInfo.Gov website. As the rule making is in process, we may assumed that USCIS would give it as normal, but nothing officially said though.
Worst case situation, if USCIS/ DHS does not re-issue the current OPT STEM extension rule by official rule making process of notice and comment period before Feb 2016, what will happen to students working on 17 OPT STEM Extension?
Well, if that happens, after Feb 12, 2016 as per standard grace period, F1 students on OPT extension will get 60 days grace period to leave the country or look for alternatives like change of status or enroll in another degree, etc. It is very likely that USCIS will take care of this situation and re-issue the OPT extension rule by the Feb 2016 deadline. Updated : on October 2nd, the details of the new proposed rule for STEM OPT Extension are published on RegInfo.Gov website.
I am a prospective student with admission from US School for Spring/ Fall 2016, with this OPT cancellation rule, I am confused, should I come to US ? Will I able to work after MS ?
Firstly, to clarify, the general 12 month OPT is not impacted by this ruling. What it means is that you can work for 12 months on OPT after your degree graduation. The current court ruling only holds to 17 month OPT extension for STEM degree. I can tell you, it is too soon for you to think about this and get worried. On October 2nd, the official rule details were published on RegInfo.gov website. So, the re-issue of the rule is in process and nothing to worry…In fact, DHS said that they are working hard to complete this before the deadline. Besides, OPT extension has been a priority and even was part of Obama’s Executive action of Nov 2014. I would NOT worry too much about the OPT extension and cancel your plans for higher education. If you are passionate with a Goal for MS in US, you should pursue your higher education.
The court has given only 6 months for the entire rule making process, will that be sufficient for following the official process of notice and comment period and have the OPT STEM Extension rule ready by February 2016 ? The H4 EAD took years to process, what are the odds?
Though 6 months seems like a tough timeline for passing the rule by official process, it is quite possible for DHS to make it happen. The reason I think it is possible is that Obama Executive Action of Nov 2014 had OPT extension program as an action item indicating the options to expand the degree programs for OPT extension and duration. So, technically in the background USCIS would have someone working on this and they would have very likely have made some progress on this. Now, this is an opportunity for them to make all of that happen officially as per process. Of the various steps, longest step of that is 60 or 30 days comment period, which should be fine with timeline given by court. Coming to the H4 Visa EAD rule, though on paper it took years due to various dependencies, it was passed within short timeline after USCIS / DHS got the official notice from the President. The Obama executive action was passed on Nov 20, 2014 and the H4 EAD rule was finalized by Feb 24, 2015 with the effective date of May 26, 2015. Technically, the timeline is about 6 months. Also, OPT extension is a current rule with the school officials are fully trained and process wise familiar too, so there would be less disruption and the ground work to be done for USCIS would be less, and it should be quite possible to re-issue the rule by Feb 2016.
There is a 60 days public comment period for official rule making process, will this 17 month OPT extension rule go through as there is opposition from many organizations like the Washington Alliance of Technology Workers ?
If we take a step back and look, “why would Obama executive action include OPT program extension and rules topic, if there was no backing from the tech world and many other supporting business organizations ?” . On the surface, even if there is so much of negativity and opposition from some organizations, there is still enough backing from many of the businesses that are utilizing the STEM graduates. The reason for this rule to become even stronger is with the H1B Visa lottery situation of FY 2015, 2016 indicating the need for STEM talent to work for some time, if they do not get selected in lottery.
What are the various Options that DHS / USCIS has to address this situation?
Well, below are about 4 of the options that can be used. The last one is controversial.
- Option 1: DHS can follow the proper rule making process and re-issue the rule by proper notice and the comment period of either 60 days or 90 days. Updated : on October 2nd, the details of the new proposed rule for STEM OPT Extension are published on RegInfo.Gov website.
- Option 2 :
DHS/ USCIS can appeal the court ruling by federal court at a higher court, which is Supreme court regarding the judgement.
- Option 3 :
They can chose to follow both above option 1 and 2 together like work on the process of re-issue of the rule and in parallel appeal the court ruling at higher court.
- Option 4 :
This is controversial and said by an attorney’s as per his opinion. DHS can just ignore the rule and move on as the judgement applies to only the persons who have raised it and it does not apply to the overall STEM OPT Program…
Overall folks, nothing to worry. On October 2nd, the official details of the rule were published on the Reginfo.gov website. It is a work in progress and DHS is committed to have this done before the deadline of Feb 12th, 2016. Do NOT worry and panic regarding any of this.
Check latest updates : STEM OPT Extension Rule News Updates
Any other questions ? What is your gut feel on this rule making on time ? Share your thoughts.