A district court judge in D.C. recently vacated USCIS' authority to grant extensions of employment permission to certain foreign students.  Seventeen month "STEM" extensions of employment authorization are currently available to foreign students following a twelve month period of Optional Practical Training (OPT), providing a total of twenty nine months of employment permission.  The USCIS rule awards the 17 month STEM extension to graduates of science, technology, engineering, and math programs if the employer for whom the student works is enrolled in the federal E-Verify program.  STEM extension of a student's OPT has become a routine piece in the overall immigration strategy of retaining key foreign talent in the technology sector, particularly.  Many foreign students seek to change status from F-1 to H-1B upon conclusion of OPT; however, for fiscal year 2016, USCIS received approximately 233,000 H-1B visa petitions against the 85,000 available quota leaving STEM OPT the only immediate option to remain employment authorized and providing time to pursue H-1B status in next year's annual lottery.  
The court held that the STEM OPT extension is not permissible because it is a result of the agency's 2008 interim rule that has not yet been subject to public notice and comment as required by the Administrative Procedures Act.  Recognizing the abrupt disruption an immediate termination of the STEM program would create, the judge's ruling does not go into effect until February 12, 2016.  USCIS has until that date to comply with the APA notice and comment requirements.   If it cannot, employers must terminate all foreign students on OPT STEM at that time and the foreign student will have 60 days in which to depart the U.S.  Please note, this rule does not affect foreign students working pursuant to an initial award of OPT or Curricular Practical Training (CPT).  Moreover, it appears the agency will be unable to fulfill further expansions of the OPT program as called for within the President's Executive Action announcement last November.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.