Focus On STEM OPT

September 20, 2016

 

DHS has reformulated the F-1 STEM optional practical training (OPT) benefit in response to several factors. STEM OPT continues to be the focus of great interest.

Updates

The final 24-month STEM OPT rule was published in the Federal Register on Friday, March 11, 2016. 81 FR 13039.

  • The new 24-month STEM OPT rule is effective Tuesday, May 10, 2016. All STEM OPT applications filed on and after May 10, 2016 must be accompanied by a Form I-20 bearing a 24-month STEM OPT recommendation.
  • The 2008 17-month STEM OPT rule remained in effect through May 9, 2016, but continues to govern the conditions of 17-month STEM OPT approved under the now-vacated rule, for students with 17-month STEM OPT who did not apply for a 7-month extension of STEM OPT by August 8, 2016.

Go to www.nafsa.org/stemoptrule for a summary and a discussion of important transitional issues.

WashTech Lawsuit Updates

  • Between August 29, 2016 to September 16, 2016, the parties to WashTech's June 17, 2016 lawsuit filed the following: On August 29, 2016, DHS filed a motion to dismiss WashTech's suit for lack of subject matter jurisdiction and failure to state a claim (read DHS' memorandum in support of their motion); On September 9, 2016, WashTech filed a response to DHS' motion (read WashTech's reponse); on September 16, 2016, DHS filed a response to WashTech's response (read DHS' response).
  • On August 8, 2016, the U.S. District Court judge that heard WashTech's original complaint filed against the 2008 17-month STEM OPT rule (the rule that was vacated effective May 10, 2016), granted in part a WashTech motion for attorney fees from that litigation. WashTech had asked for $465,002.62 from DHS, the court awarded them $42,239.59. Read the court's opinion.
  • On June 17, 2016, WashTech filed a new lawsuit with the U.S. District Court for the District of Columbia, this time against the 2016 STEM OPT rule. The new filing, which was expected by DHS, raises many of the same substantive issues brought up in the original lawsuit, but now in the context of the 2016 STEM OPT rule rather than the 2008 rule. It also raises new procedural claims. Read WashTech's complaint. In a July 13, 2016 status conference, the judge set a due date of August 26, 2016 for motions from DHS, a due date of September 9, 2016 for WashTech responses to any motions filed by DHS, and a due date of September 16, 2016 for DHS to reply to WashTech's responses. The next status conference is set for December 12, 2016 at 09:15 AM in Courtroom 16 before Judge Reggie B. Walton.
  • On May 13, 2016, the D.C. Circuit Court of Appeals dismissed WashTech's appeal of the District Court's August, 2015 decision on the 2008 STEM OPT rule as moot. And so that suit, originally filed in 2014, came to a close except for a subsequent determination of attorney fees.
 

Background Contents

What is STEM OPT?

From 2008 until May 9, 2016, F-1 students approved for up to 12 months of standard post-completion optional practical training (OPT) could apply to USCIS for 17-month extension of OPT if their standard period of OPT was granted on the basis of a bachelor's, master's, or doctoral degree in a STEM (science, technology, engineering, mathematics) field that appeared on the DHS STEM-Designated Degree Program List that governed the 17-month STEM OPT extension. [73 FR 18944 (April 8, 2008)]. A new rule effective May 10, 2016, allows student to apply for a 24-month STEM OPT extension. [81 FR 13039 (March 11, 2016). Go to www.nafsa.org/stemoptrule for a summary of the rule, and a discussion of important transitional issues.

The school that recommended the student's 12-month period of standard post-completion OPT is responsible for recommending and maintaining the student's SEVIS record during the entire period of standard and STEM OPT.

Five Contributing Factors

Schools should be aware of five ongoing developments that impact STEM OPT:

  1. President Obama's executive action initiative and associated agency initiatives;
  2. Legal actions brought by the WashTech union of STEM workers;
  3. Analysis of data regarding the use of STEM OPT;
  4. Congressional concern on how DHS manages the OPT program; and
  5. USCIS Service Center denials of CIP-code/Academic Degree title “mismatches”

1 - President Obama's executive action initiative

Among the immigration executive actions announced by the President in November, 2014 is an initiative to strengthen and extend on-the-job training for STEM graduates of U.S universities.

"Strengthening and extending on-the-job training for STEM graduates of U.S universities . In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation."

Regarding this initiative, U.S. Citizenship and Immigration Services (USCIS), said that it will "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." A November 20, 2014 memo from DHS Secretary Jeh Johnson to the directors of USCIS and ICE provided more detail about the direction DHS would like to take:

"The OPT program should be evaluated, strengthened, and improved to further enhance American innovation and competitiveness, consistent with current legal authority. More specifically, I direct that Immigration and Customs Enforcement (ICE) and USCIS develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates, consistent with law. I am also directing ICE and USCIS to improve the OPT program by requiring stronger ties to degree-granting institutions, which would better ensure that a student's practical training furthers the student's full course of study in the United States. Finally, ICE and USCIS should take steps to ensure that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields."

2 - The WashTech Lawsuit

Around the same time the administration's immigration executive actions were announced, a lawsuit involving OPT (Washington Alliance of Technology Workers v. U.S. Department of Homeland Security [U.S. District Court for the District of Columbia, Case No. 1:14-cv-00529, filed on March 28, 2014) started gaining traction in court.

The plaintiff, the Washington Alliance of Technology Workers (WashTech), had sued DHS in the United States District Court for the District of Columbia, challenging the agency's authority to establish any kind of post-completion optional practical training (both standard post-completion OPT and STEM OPT). WashTech argued, among other things, that the Immigration and Nationality Act provision that created the F-1 category [INA 101(a)(15)(F)] does not permit the creation of regulations for any kind of post-completion practical training, since the statutory language mentions only "students" seeking "to enter the United States temporarily and solely" to pursue "a full course of study." Here's INA 101(a)(15)(F):

"(F) (i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 214(l) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, particularly designated by him and approved by the Attorney General after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn"

WashTech also argued that DHS did not act in accordance with the Administrative Procedure Act (APA) when it promulgated the STEM OPT extension rule in 2008, since it published it in the form of an interim final rule that became effective on the day of publication, without the usual public notice and comment period required by the APA.

DHS responded to the complaint with a motion to dismiss WashTech's claims, and on November 21, 2014, the court issued an opinion on DHS' motion, granting it in part and denying it in part. Although WashTech challenged DHS' authority to create any kind of post-completion OPT, the court found that WashTech did not have standing to sue on the 12-month standard OPT issue, since the only damages it alleged related to STEM OPT. The court also found that since the current standard post-completion OPT was formulated in 1992 (and had in addition been in existence in one form or another since 1947) without challenge, the six-year statute of limitations on civil suits brought against the United States would bar a suit based on the standard 12-month OPT benefit.

The court did decide, however, that WashTech had standing to sue on the basis of STEM OPT, finding that WashTech adequately alleged injuries to its members on the basis of STEM OPT, having identified members who asserted that they faced increased competition in the job market as a result of the 2008 STEM OPT rule, which WashTech argued was specifically meant to increase the number of available STEM workers. Since the STEM OPT benefit was created in April, 2008, the court also found that a suit based on STEM OPT was not barred by the general six-year statute of limitations.

On March 6, 2015, both parties filed motions for summary judgment.

The 2015 Order in the 2014 WashTech Case

In an August 12, 2015 opinion and order, the District Court found that although the STEM OPT rule was within DHS's scope of authority, DHS' failure to provide notice and invite public comment at the time of the 2008 rule was "a serious procedural deficiency" that merited "vacatur" (i.e., rescinding, setting aside, annulling) of the 2008 rule. The court ordered "that the 17-month STEM extension described at 73 Fed. Reg 18,944 (Apr. 8, 2008) is VACATED, but that the vacatur is STAYED until February 12, 2016." The court also remanded the case to DHS "for further proceedings consistent with the Court's Memorandum Opinion." It is important to note that the court found that establishing the STEM OPT benefit in 2008 was within the scope of DHS's regulatory authority, and that the court's decision to vacate was based on the procedural deficiency only. On January 23, 2016, the court extended the vacatur date until May 10, 2016.

The 2008 rule contained changes other than the STEM OPT extension, including:

  • Provisions for another period of standard OPT after moving to a higher educational level,
  • Automatic cap-gap extensions, and
  • The 90-day limit on unemployment

The judge's vacatur order specifically referenced only "the 17-month STEM extension described at 73 Fed. Reg 18,944 (Apr. 8, 2008)," and so it was unclear what impact, if any, the order would have had on parts of the 2008 rule other than the 17-month STEM extension. In any case, on October 19, 2015, the Department of Homeland Security published a new proposed STEM OPT rule to cure the procedural defects of the 2008 rule, to implement President Obama's executive action regarding STEM OPT, and to address other issues raised with STEM OPT. On November 18, 2015, NAFSA commented on the proposed STEM OPT rule.

WashTech filed a notice of appeal with the United States Court of Appeals for the District of Columbia Circuit on August 18, 2015. The 17-month rule continued in effect through May 9, 2016, the 24-month rule became effective on May 10, 2016. On May 13, 2016, the D.C. Circuit Court of Appeals dismissed WashTech's appeal, finding that the suit based on the now non-existent 2008 17-month rule was moot.

WashTech's New 2016 Lawsuit

Although litigation over the 2008 STEM OPT was rendered moot by its May 10, 2016 vacatur, the new 2016 rule can still be litigated. And so on June 17, 2016, WashTech filed a new lawsuit with the U.S. District Court for the District of Columbia. The new filing, which was expected by DHS, raises many of the same substantive issues brought up in the original lawsuit, but now in the context of the 2016 STEM OPT rule rather than the 2008 rule. It also raises new procedural claims. Read WashTech's complaint.

WashTech Litigation Timeline

Here is a reverse timeline of the WashTech litigation:

  • Between August 29, 2016 to September 16, 2016, the parties to WashTech's June 17, 2016 lawsuit filed the following: On August 29, 2016, DHS filed a motion to dismiss WashTech's suit for lack of subject matter jurisdiction and failure to state a claim (read DHS' memorandum in support of their motion); On September 9, 2016, WashTech filed a response to DHS' motion (read WashTech's reponse); on September 16, 2016, DHS filed a response to WashTech's response (read DHS' response).
  • On August 8, 2016, the U.S. District Court judge that heard WashTech's original complaint filed against the 2008 17-month STEM OPT rule (the rule that was vacated effective May 10, 2016), granted in part a WashTech motion for attorney fees from that litigation. WashTech had asked for $465,002.62 from DHS, the court awarded them $42,239.59. Read the court's order.
  • On June 17, 2016, WashTech filed suit in the U.S. District Court for the District of Columbia, regarding the 2016 STEM OPT regulation. The new filing, which was expected by DHS, raises many of the same substantive issues brought up in the original lawsuit, but now in the context of the 2016 STEM OPT rule rather than the 2008 rule. It also raises new procedural claims. Read WashTech's complaint. In a July 13, 2016 status conference, the judge set a due date of August 26, 2016 for motions from DHS, a due date of September 9, 2016 for WashTech responses to any motions filed by DHS, and a due date of September 16, 2016 for DHS to reply to WashTech's responses. The next status conference is set for December 12, 2016 at 09:15 AM in Courtroom 16 before Judge Reggie B. Walton.
  • On May 13, 2016, the D.C. Circuit Court of Appeals dismissed WashTech's appeal as moot, and the suit originally filed in 2014 came to a close, except for a subsequent determination of attorney fees.
  • On February 22, 2016, DHS filed a response in opposition to a February 11, 2016 WashTech motion to the D.C. Circuit Court of Appeals that had challenged the District Court's authority to extend the vacatur date until May 10, 2016.
  • On January 23, 2016, the District Court granted DHS's motion to extend the stay of the vacatur of the STEM OPT rule from February 12, 2016 until May 10, 2016. Read the court's order and memorandum opinion explaining why the court granted the extension.
  • On January 14, 2016, DHS filed a response brief to WashTech's January 11, 2016 response, arguing that the district court does have jurisdiction to extend its stay of vacatur through May 10, 2016, and asking the court to reject WashTech's opposition brief. In addition, DHS made the following important request in its brief: ""In the event the Court denies DHS's Rule 60(b)(6) motion, the agency respectfully requests that the Court clarify that its vacatur will not affect the legal status of F-1 students holding unexpired employment authorization documents ("EADs") granted under the 2008STEM OPT Extension rule, and their dependents. Such an order of clarification is appropriate in light of the interests of many F-1 students, their schools, and their employers, and would help DHS ensure that it is in full compliance with the Court's order. Moreover, it will assist interested parties greatly as this case continues to move forward." DHS also asked the district court to issue a decision on its motion to extend the vacatur date "as expeditiously as possible."
  • On January 11, 2016, the Washington Alliance of Technology Workers (WashTech) filed a response to DHS's December 22, 2015 motion, arguing that the District Court should not grant the extension until May 10, 2016 that DHS requested in its motion.
  • On December 24, 2015, the court granted a WashTech motion for an extension of time to respond to DHS's December 22, 2015 motion. The court granted WashTech until January 11, 2016 to respond to the DHS motion.
  • On December 22, 2015, after receiving over 50,000 comments on its proposed 24-month STEM OPT rule, DHS moved the WashTech court to extend the stay on the vacatur of the 2008 17-month STEM OPT rule from February 12, 2016 until May 10, 2016, to provide for "approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community." Read the December 22, 2015 DHS motion to extend the stay on the court's original vacatur order.
  • On August 18, 2015, WashTech appealed the District Court's decision, and filed a notice of appeal with the United States Court of Appeals for the District of Columbia Circuit.
  • On August 12, 2015 the District Court issued a final opinion and order, finding that although the 2008 STEM OPT rule was within DHS's scope of authority, DHS' failure to provide notice and invite public comment at the time it was promulgated was "a serious procedural deficiency" that merited "vacatur" (i.e., rescinding, setting aside, annulling) of the 2008 rule. The court ordered "that the 17-month STEM extension described at 73 Fed. Reg 18,944 (Apr. 8, 2008) is VACATED, but that the vacatur is STAYED until February 12, 2016."
  • On March 6, 2015, both parties filed motions for summary judgment, but the motions were denied:  
  • On March 28, 2014, the Washington Alliance of Technology Workers (WashTech) filed a lawsuit involving OPT against DHS. [U.S. District Court for the District of Columbia, Case No. 1:14-cv-00529.

Since it is very much related, here also is a timeline of the 24-month STEM OPT rule making:

  • On May 10, 2016, the final 24-month STEM OPT rule became effective, and the 17-month STEM OPT rule was vacated. The 17-month STEM OPT rule remained in effect through May 9, 2016, but continues to govern 17-month STEM OPT approved under the now-vacated rule, for student with 17-month STEM OPT who did not apply for a 7-month extension of STEM OPT by August 8, 2016.
  • On March 11, 2016, the final 24-month STEM OPT rule was published in the Federal Register. 81 FR 13039.
  • On February 5, 2016, DHS sent the final STEM OPT rule to OMB for review, the last phase of review before the final rule was published in the Federal Register. 
  • On November 18, 2015, NAFSA commented on the proposed STEM OPT rule. Read NAFSA's comment letter.
  • On October 19, 2015, the Department of Homeland Security published the much-anticipated proposed STEM OPT rule. The public had 30 days to comment on the proposed rule.

3 - Data on the use of STEM OPT

The third factor impacting the STEM OPT benefit is DHS' concern that the benefit not be abused. There have been a number of inquiries regarding fraudulent use of the program, or of parties that are taking advantage of the program in ways that, even if not fraudulent, may be using the program in ways inconsistent with the government's intention. It is possible that some news outlets might also report on this use of STEM OPT. This factor may then further drive the "strengthening" aspect of the administration's executive order. If new reporting requirements are proposed to address these concerns, NAFSA would argue that the burden of compliance should be distributed equitably among employers, students, schools, and the government, recognizing that overly burdensome reporting obligations will discourage use of the benefit.

4 - Congressional concern on how OPT is managed by DHS

Also factoring in to the equation of the future of STEM OPT is some congressional opposition to how the OPT program is managed by DHS. After a May 28, 2015 ICE briefing of Senate Judiciary Committee staff, Senator Charles Grassley (R-Iowa) expressed concern "about the Department’s plans to expand the Optional Practical Training (OPT) program, and urge you to reconsider expanding the program without adding adequate controls and safeguards." In a June 8, 2015 letter to DHS Secretary Jeh Johnson, Senator Grassley opined that DHS's "proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office (GAO) report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the Department was not adequately overseeing it." According to Grassely, he had requested the 2014 GAO report "after hearing concerns that employers were targeting for recruitment foreign students with Optional Practical Training and learning that there was an atypical upward trend in participation." A news release on Senator Grassley's website reflects the senator's remarks on the ICE briefing, and includes a link to the letter he sent to Secretary Johnson.

5 - USCIS Service Center denials of CIP-code/Academic Degree title “mismatches”

A fifth factor impacting the STEM OPT benefit involves reports that NAFSA has received of some USCIS Service Centers denying applications for STEM OPT where there is a substantial variance between the school’s name for the degree and the CIP code descriptor. A common situation, for example, has arisen with schools that have changed the CIP code of its MIS (Management Information Systems) program from a business-focused CIP code to a computer or technical CIP code to better reflect the focus of the curriculum, but have not changed the name of the degree program itself.