Breaking News 08.20.2015

Federal court ruling deems STEM OPT and “cap-gap” rule deficient

This past week, a federal judge ruled that the Department of Homeland Security (“DHS”) used improper procedures when it implemented its 2008 regulations that created STEM OPT extensions and made cap-gap relief automatic. Importantly, however, the judge delayed the effective date of her ruling until February 12, 2016, so that DHS may take proper procedures to implement the regulation correctly. If DHS properly implements the regulation during this time, the judge’s ruling may have little or no impact on STEM or cap-gap F-1 students.

The 2008 regulation in question created the STEM program, which extended OPT eligibility for employment authorization for an additional 17 months for graduates from US educational institutions with degrees in science, technology, engineering or mathematics (“STEM”) fields, provided their employer is enrolled in E-Verify. The regulation also made the H-1B “cap-gap” extension automatic for certain F-1 students with pending or approved H-1B petitions. The cap gap rule was designed to permit these students with continued work authorization until their H-1B petition was decided.

DHS has not yet stated how it will respond to the decision stating only that it is reviewing the ruling. For now, know that your STEM OPT extension and cap-gap relief will remain valid until February 12, 2016. Stay tuned for additional updates.

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