With a looming February 12, 2016 deadline for the 2008 OPT STEM rule to be vacated pursuant to court order, many international students on F-1 visas are wondering what will happen to their immigration status come February 13th.

As background, on August 12, 2015, a D.C. federal judge ruled that the 2008 Department of Homeland Security (“DHS”) rule allowing foreign graduates in STEM (Science, Technology, Engineering, and Mathematics) fields to request an additional 17 months of Optional Practical Training (“OPT”) time was invalid because DHS promulgated the rule without notice and comment. The judge vacated the 2008 rule allowing the 17-month extension, however a stay was put in place until February 12, 2016 to allow DHS to submit the rule for proper notice and comment.

DHS finally proposed a new rule on October 19, 2015.  The 30-day comment period closed on November 18, 2015, during which time DHS received over 50,000 comments.  DHS must now review the comments, decide whether any changes to the rule are needed, and then publish a final rule.  Because of the significance of the rule, there is also a required delayed-effective-date of 60 days to allow DHS to train agency personnel and coordinate with the regulated community.  Consequently, there is no way for DHS to implement the new rule in time to meet the February 12th deadline.

DHS has therefore asked the court to extend the stay from February 12th to May 10th.  The request is based on extraordinary circumstances, as the agency requires additional time to review and respond to the approximately 50,500 comments received, as well as develop guidance and train officers in the new STEM OPT program requirements and provide training aids and material for foreign students, U.S. schools, and U.S. employers.

U.S. Citizenship and Immigration Services (“USCIS”) has yet to explain to students currently on a STEM extension whether their OPT will remain valid after February 12, 2016.  However, it is likely that the court will grant the request to extend the stay due to the serious consequences facing students who are currently authorized to work in the U.S. pursuant to the STEM OPT extension and due to the sheer number of comments submitted in the rulemaking process.