STEM List – 24 Month Extension

SEVP Releases STEM 24 Months List

DHS recently published a rule allowing OPT students in the STEM fields (Science, Technology, Engineering, Mathematics) to extend their Optional Practical Training for 24 months. This is especially beneficial to OPT students who intend to stay in the USA and find post-graduate employment because it allows them more opportunity for the H-1B lottery. The H-1B visa is often the appropriate option for a recent graduate in a “specialty” occupation. All of the fields listed qualify as STEM and for the 24 months.

Behold the Indian Visa God!

Behold the Indian Visa God!

Hinduism is known for having many gods. Add the Visa God to the list.

USCIS approves visa petitions and US consulates overseas grant visas. However, it seems that the residents of Hyderbad, India have found a source that positively influences USCIS and consulates to grant visas: Lord Balaji at the Chilkur Balaji temple.

India, partially by virtue of its enormous population, receives many of the available immigrant and nonimmigrant visas. Competition can be intense in the country with a limited number of visas available for a large population. Looking for an advantage, visa applicants have taken to making the pilgrimage to the temple and pray to Lord Balaji for luck with their visas.

There is a set ceremony for hopeful applicants. Worshippers make 11 laps around the inside of the temple. There are reports of applicants offering their passports and coconuts, which are prevalent in Indian cuisine.

Students decades ago reported that their visas were granted if they made the pilgrimage to the temple. Their reported success has led to the ritual of thousands of applicants running to the temple for good luck with their immigrant or nonimmigrant visa. In fact,  even the Wikipedia page for the temple recognizes it as the Visa Temple.

In addition to immigrant visas, many Indians enter the United States on an F-1 Student visa or H-1B specialty occupation visa. The H-1B visa is subject to a lottery and would be appropriate for any source of inspiration or good luck.

STEM OPT Rule Extension

STEM OPT Extension:

Court Grants 90 Day Extension of STEM OPT Rule

 

The US District Court for the District of Columbia ordered that the vacatur of the 17-month STEM (Science Technology Engineering Mathematics) OPT extension be stayed until May 10, 2016. The Department of Homeland Security motioned for that relief from the court’s order in August 2015. The court had held in August 2015 that the DHS rule granting 17-month extensions on OPT for F-1 visa STEM students was invalid. The rationale was that DHS had promulgated the rule without going through the mandated rule, notice, and comment procedure. At that time, the court decided that vacating the rule granting 17-month extensions would cause substantial hardship for qualifying students and problems for their employers. Therefore, it decided to keep the rule in place until February 12, 2016.

 

The reason that the court has extended the rule for 3 additional months is that 50,500 public comments were received when DHS gave Notice of Proposed Rulemaking. The court called this “unexpected and unprecedented.”

 

Many STEM students rely on their OPT time to play the H-1B lottery and increase their chances or to gain invaluable experience related to their field of study before returning to their home countries. The focus on STEM is not exclusive to immigration. Rather it is a trickle-down from a nationwide emphasis on promoting students to enter and succeed in those courses of study.

STEM OPT Rule Underway

STEM OPT Rule In Process

As per proper procedures, the Department of Homeland has sent its proposed regulations on STEM OPT to the Office of Management and Budget.

Optional Practical Training (OPT) is an important aspect of the immigration apparatus in the United States. There are over 4 million students in the United States who are present on student visas (F, M). For many of these foreign students, OPT enables them to receive job training and experience. The standard version allows for 12 months of post degree training in the field of the student’s degree. The STEM (science, technology, engineer, mathematics) OPT grants an additional 17 months to a foreign student worker if the employer uses E-Verify. E-Verify is a controversial program that helps determine whether an employer has hired unauthorized workers. Also, its existence is in doubt, as it has only been extended until December 11.

The reason that a new STEM Opt rule is needed is that the federal court in the Washtech case ruled that Department of Homeland Security did not properly follow the time frames and procedures for regulatory action that the Administrative Procedures Act requires. That ruling meant DHS had to undergo the proper procedure for publishing a proposed rule with a comment period, collecting comments, and publishing a final rule with those comments considered.

DHS is required to have this by February 12, 2015. There is a 60 day minimum period between final publication and effective date of the final rule. A final rule requires a proposed rule 60 days previous to its publication (30 days for comments, 30 days for analyzing comments). That means the draft rule should be published by Thursday (October 15) of this week. President Obama’s executive actions on immigration last year promised some reform on OPT and STEM OPT. One possibility is the extension of the 17 months to 24 months (for a total of 36 months instead of 29).

STEM Extension Temporarily Invalidated

This month, a federal district court in the District of Columbia invalidated a Department of Homeland Security rule that allowed F-1 visa STEM students to extend their 12 month OPT (optional practical training) periods to 29 months. In 2008, DHS announced that students with degrees and employment in the science, technology, engineering, and mathematics fields would have the opportunity to work for their employers for up to 29 months instead of 12 months. The employer had to be registered with a system called E-Verify. Many foreign student who study at United States colleges and universities are in the F-1 visa designation, which allows for 12 months of job training in addition to degree completion.

 

The district court struck down the rule on the ground that DHS did not allow for the mandatory notice and comment period. When a federal agency promulgates a regulation, it must have a period of notice and comment, where it allows the general public and interested parties to post comments on positive or negative aspects of the proposed rule. The agency is then supposed to take those comments into account in improving the rule before it is made official. The court ruled that because DHS did not take this step, the rule permitting the 17 months extension for STEM OPT students is temporarily invalid. The court has given DHS until February 12, 2016 to rectify its mistake by actually having the rule subject to proper notice and comment. The administrative record did not demonstrate a good cause for skipping the notice and comment period.

 

Washtech brought the suit against the Department of Homeland Security, and it argued various points to prevent foreign students from acquiring job experience on their F-1 visa. The court concluded that a “student” can still be someone who has completed an academic degree program., that post-graduate OPT experience is permissible, and that DHS has broadly delegated authority from Congress to establish the necessary rules for F-1 student employment.