On January 23, Judge Huvelle stayed the decision on whether to curtail STEM graduates’ right to stay and work in the US, after ruling the extension invalid last year.
The delay means that some 25,000 international STEM graduates and their dependents will not be forced to depart the US following the original deadline of February 12.
“If the stay is not extended, many people would be adversely affected… The significance of that hardship cannot be overstated”
The Optional Practical Training programme enables international graduates to stay and work in jobs or paid internships for up to 12 months post-study without having to apply for a work visa.
In 2008, the allowed period of stay was extended to 29 months for STEM graduates. However, in August 2015 Huvelle said the extension was issued without appropriate public notice or comment.
She gave the government six months to gather comment on the programme, during which the Department of Homeland Security put forward a set of proposed amendments, including extending the length of time STEM graduates can stay and work to three years.
However, following an unprecedented public response that included more than 50,000 comments, DHS “determined with a reasonable degree of certainty that it would not be able to meet the February 12, 2016 deadline” and in December requested an additional 90 days to complete and promulgate its final rules.
Huvelle agreed to stay the decision based on DHS figures showing there are 23,000 STEM OPT participants and 2,300 dependents of participants currently in the US, along with 8,000 pending applications for STEM OPT extensions and 434,000 foreign students who might be eligible to apply.
“If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorisation, not being able to apply for the OPT extension or not knowing whether they will be able to benefit from the extension in the future,” she said.
Huvelle added: “The US tech sector will lose employees, and US educational institutions could conceivably become less attractive to foreign students.”
“The significance of that hardship cannot be overstated.”
Terrence Graham, associate dean and executive director of international programmes at California State University, Long Beach, welcomed the 90-day delay.
The school currently has 459 students on OPT and an additional 92 with pending applications, including 43 already in their STEM extension period and an additional 19 who have applied for the extension.
“These are students who, when they decided to come to the United States to study, and more specifically to Cal. State Long Beach, were counting on being able to work following graduation for the full OPT plus STEM extension period,” he told The PIE News.
“An accommodating OPT program is a competitive advantage for US colleges and universities and for the country writ large”
“To have to change their plans unexpectedly would be devastating to our students.”
Graham added that he is concerned about the impact curtailing the extension might have on future enrolments.
“It is too early to make any conclusions, but our master’s application numbers seem to be down this year after several years straight of growth,” he said.
“I know that students overseas who choose their study destination in part because of post-completion work opportunities are watching this closely, too.”
Eddie West, director of international initiatives at NACAC, echoed: “Many prospective students weigh post-graduation work opportunities available to them in different destination countries they’re considering.”
“So an accommodating OPT program is a competitive advantage for US colleges and universities and for the country writ large.”
NACAC is optimistic that the 17-month extension will not be curtailed, West said, and he forecasted that there is a “good chance” that the proposed 24-month extension will be brought into effect.
However, he noted that “it’s a safe assumption” that not all the comments DHS received were supportive of the programme. “So it’s impossible to know for certain what the final outcome will be.”
NAFSA has backed DHS’s call for the extension of the year-long stay to be increased from 17 to 24 months, bringing the total duration to three years.
In a letter of response, the association’s executive director, Marlene Johnson, also welcomed a DHS proposal for a mandatory Mentoring and Training Plan, requiring students to lay out the goals of their placement and outline its relevance to their chosen STEM field.
The MTP would also detail employers’ obligations to participants and so “protect foreign students and American workers from exploitation”, she said.
A NAFSA spokesperson added that while the grant of extension “alleviates immediate concerns… uncertainty surrounding the OPT program further imperils international students’ willingness to seek a US higher education.”
DHS will use the next three months to continue its public review and promote the proposals. Judge Huvelle will decide whether to accept the proposals or scrap the extension on May 10, in which event students currently in the extension period of the OPT programme would lose their work authorisation and have their leave to stay curtailed.