STEM OPT WashTech v. DHS Court Ruling FAQ
What is WashTech v. DHS?
The Washington Alliance of Technology Workers sued the Department of Homeland Security over the OPT program for F-1 students. The resulting ruling invalidated the existing STEM OPT extension program on the ground that DHS had not followed the proper administrative process when implementing the rule. In response, DHS proposed and published a new final rule on STEM OPT extensions, which will take effect on May 10, 2016. An overview of the rule can be found on Study in the States.
Below are guidelines for students currently on STEM OPT, have pending STEM OPT applications
with USCIS, or are seeking to apply for the STEM OPT extension. Any questions should
be directed to your International Student Advisor.
17-month STEM OPT application still pending on May 10, 2016
Beginning May 10, 2016, USCIS will adjudicate all STEM OPT applications under the standards of the new final rule. USCIS will send an RFE (request for evidence) to any applicant who filed for a 17-month STEM OPT extension under the current rule and whose application is still pending as of May 10, 2016. The RFE will “request documentation that will establish that the student is eligible for a 24-month OPT extension” under the new final rule, including a new Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension, a completed and signed Form I-983 Mentoring and Training Plan, and any other documentation to establish that the requirements for a STEM OPT extension under the standards of the new final rule have been met.
Note: this is different from the proposed rule, which would have adjudicated applications
received before May 10 under the 17-month rules.
It is important for you to contact your International Student Advisor immediately upon receiving an RFE. You will be able to upload the additional documentation in accessVIS.
17-month STEM OPT already approved before May 10, 2016
A student whose 17-month STEM OPT was approved before May 10, 2016 has two choices:
Option 1: Continue in the 17-month period until it ends, without applying for an extension. If the student chooses this option, the standards of the 17-month rule will govern that STEM OPT period throughout its term.
Option 2: Request the balance of the modified extension (i.e., the extra 7 months). Not all students with approved 17-month STEM OPT will qualify. To be eligible for the 7-month extension, the student must meet all of the following conditions:
- Properly file a Form I-765, with USCIS on or after May 10, 2016 and on or before August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24- month OPT extension into the student’s SEVIS record, with applicable fees and supporting documentation, including a new Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension, a completed and signed Form I-983 Mentoring and Training Plan, and any other documentation to establish that the requirements for a STEM OPT extension under the standards of the new final rule have been met;
- Have at least 150 calendar days remaining prior to the end of his or her 17-month OPT extension at the time the Form I-765, is properly filed; and
- Meet all the requirements for the 24-month OPT extension under the new final rule, except the requirement that the student must be in a valid period of standard 12-month post-completion OPT at the time of filing.
In either case, the 17-month STEM OPT, whether or not it is extended for 7 months,
will count as "one" period of STEM OPT, after which the student will have only one
more lifetime period of STEM OPT eligibility under the new rule, after completing
a higher degree.
If you wish and are eligible to apply for the additional 7 months of STEM OPT, you will need to make this request in accessVIS and allow 2 weeks for processing.
Students whose standard 12-month OPT will expire before May 10
One key practice note that was identified in the preamble to the final rule that would impact the decision on whether a student currently in a period of standard 12-month OPT decides to apply for STEM OPT now under the current 17-month STEM OPT rule (and likely have to wait for an RFE) or wait to file until after May 10, is whether the student's current 12-month OPT will expire prior to May 10, since an application for STEM OPT under either rule requires the student to be in a valid period of standard 12-month OPT at the time the application for STEM OPT is filed with USCIS:
"This rule, like the 2008 IFR, does not allow students to apply for STEM OPT extensions during the 60-day grace period following an initial 12-month period of post- completion OPT. The current requirement to properly file the request for a STEM OPT extension prior to the end of the initial OPT period allows sufficient time for the F-1 student to apply for the extension and is administratively convenient as it ensures continuing employment authorization during the transition from the initial OPT period to the STEM OPT period. Accordingly, if a student anticipates that he or she will enter the 60-day grace period before May the student should not wait to apply. Such a student should apply for the 17-month STEM OPT extension before his or her initial OPT period expires."