DHS Issues New Rule Extending OPT Program To 36 Months

DHS issued the final OPT STEM extension rule on Wednesday, the rule is set to be published in the Federal Register on Friday, and extends the Optional Practical Training (OPT) program for foreign STEM students to 36 months.

The old OPT STEM extension was struck down in August 2015 because DHS did not go through the proper public and comment process when they issued the extension in 2008, which violates the Administrative Procedure Act (APA).

The judge originally gave the administration until February 12, 2016 to establish a new rule under the correct APA procedures, and ordered that they respond to every comment they received. DHS proposed a rule on October 19, 2015 that received over 50,000 public comments. Despite the thousands of comments opposing the extension DHS decided to move forward and increase the work period from the original 12 months to the new 36 months.

Due to the large number of comments that required responses the regulation could not be published in the Federal Registrar by December 12th in order to meet the 60-day requirement and take effect before the February deadline, but the court granted the current OPT program a 3-month extension so that DHS could respond to all of the comments. The new rule will take affect on May 10. Any student who currently has been issued a work permit before May 10 will remain valid until it expires and when the rule takes affect on May 10 the student may apply for additional 7 months of OPT.

The expansion allows many companies to circumvent the caps on guest worker visas such as the H-1B visa and replace American workers with cheaper foreign student workers. The OPT graduates are exempt from payroll taxes and there is no wage requirements or visa caps on the program.

Read more on this story at Law360.com.