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.
- 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).
- For moves that occurred between April 10 and August 18, 2015, the petitioner must file an amended petition and LCA by January 15, 2016.
- 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.
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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