On August 12th, 2015, U.S. District Judge Ellen Segal Huvelle invalidated the rule announced by USCIS in 2008 which allowed automatic 17-month extensions for students seeking Optional Practical Training in certain STEM (Science, Technology, Engineering and Mathematics) related positions. The Department of State announced the automatic extension in defense of thousands of students who would have to leave the U.S. upon completion of their educational programs leaving thousands of unfilled jobs in the STEM field.
The benefits of the 2008 announcement by DHS allowed three things: 1) Students with certain degrees were allowed automatic extensions in their OPT extending the validity period from 12 to 29 months. The second benefit was that the H-1B “cap gap” was automatically granted. The third benefit was that students on F-1 nonimmigrant status were allowed to apply for OPT up to 60 days after graduation rather than apply before their graduation date. These have all now been eliminated with Judge Huvelle’s invalidation of the 2008 rule.
Judge Huvelle’s decision is stayed until February 12th, 2016 due to serious consequences this invalidation would cause for foreign students employed in the U.S.; they would need to immediately depart the U.S. With the current ruling, the Department of Homeland Security will need to pass a new rule by February 12th, 2016 in order to avoid students on STEM OPT to lose their employment authorization, will only be allowed to work while on F-1 status and cannot legally work after graduation, and H-1B cap-gap protection will no longer be automatic.
The invalidation of this 2008 rule by USCIS significantly limits the options of employers and students in seeking fulfillment of certain STEM-related positions. The limitation and revocation of the 2008 rule will result in thousands of positions unfulfilled and will force thousands of students to depart the United States.
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