24 Aug
Member News

Federal Court Strikes Down STEM OPT Extension Rule but Stays Action Until 2016; USCIS Issues Final Guidance on When to File Amended H-1B Petitions

Federal Court Strikes Down STEM OPT Extension Rule but Stays Action Until 2016

As you are likely aware, F-1 students granted 12 months of Optional Practical Training (OPT) following graduation whose underlying degrees are in the field of science, technology, engineering, or mathematics (STEM) may be eligible for an additional period of 17 months of OPT, thanks to a 2008 Department of Homeland Security (DHS) regulation. That regulation was issued by DHS without first asking the public to comment on it. A federal court recently voided the STEM regulation on this ground, holding that the federal government failed to comply with the notice and comment requirements.

The court did not, however, implement its ruling in order to give DHS time to comply with those requirements. Therefore, F-1 students with an approved 17-month STEM extension of OPT remain fully authorized to work. DHS has been granted until February 12, 2016, to complete its notice and comment obligations.

This means that F-1 students who have been granted a STEM OPT extension continue to be authorized to work, provided that their employment is related to their STEM degree and their employer is enrolled in and using E-Verify.

Furthermore, USCIS should continue to accept and adjudicate STEM OPT applications.

We fully anticipate that DHS will be able to complete this process and issue a proper regulation by February 12, thereby ensuring there is no disruption in the availability of this critical employment authorization program. We will stay on top of this very important issue and provide updates as additional information becomes available.
USCIS Issues Final Guidance on When to File an Amended H-1B Petition for a Change in Work Location 
In the wake of a precedent decision issued on April 9 by the Administrative Appeals Office of U.S. Citizenship and Immigration Services (USCIS), the agency has issued new guidance that clarifies when amended H-1B petitions must be filed for H-1B employees who have moved to a new location outside of the geographic area covered by the Labor Condition Application (LCA).
According to the new guidance:
  1. For moves that occurred on or before April 9, 2015 (the date of the decision), the employer may–but is not required to – file an amended petition with USCIS (although an LCA covering the new location is still required).
  2. For moves that occurred between April 10 and August 18, 2015, the petitioner must file an amended petition and LCA by January 15, 2016.
  3. For all moves occurring on or after August 19, 2015, an H-1B employer must obtain a new LCA from the Department of Labor and must also file an amended H-1B petition before relocating an H-1B employee outside of the Metropolitan Statistical Area (MSA) listed on the LCA.
As a reminder, an amended filing is not required when the H-1B employee moves to a work site within the same MSA listed on the LCA already on file with USCIS (for example, a move from Manhattan to Brooklyn would not require an amended filing). Please also note that amended filings are not required for short-term placements (not exceeding 30 days or, in some circumstances, 60 days).
Finally, keep in mind that in those instances where an amended filing is required, the H-1B employee can immediately begin work at the new location upon filing of an amended H-1B petition.

 If you have any questions or need additional information about this alert, please feel free to contact the authors below or any one of your Kramer Levin attorney contacts:

 Ted Ruthizer  Mark D. Koestler  Matthew S. Dunn  Jennifer R. Danzo  Allison D. Gray
 William Johnson  Jeffrey A. Barlekamp  Veena Mohandoss  Scott Gorski  Fabienne Arrighi

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