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Special Notice For Employers of Foreign Students In F-1/Opt Status

August 2015

By: Melissa Calhoon Jones

Employers with employees who are authorized to work in the United States as foreign students engaged in post-completion employment (“F1/OPT”), take note:

On August 12, 2015, the U.S. District Court for the District of Columbia vacated the 2008 Department of Homeland Security rule authorizing 17-month extensions of F1/OPT for foreign students with degrees in science, technology, engineering and mathematics (“STEM”) fields (“2008 Rule”).  The basis for this ruling is that the 2008 Rule was not issued following the notice and comment period typically required for new regulations.  The 2008 Rule allowed for students in STEM fields to receive a maximum of 29 months of F-1/OPT work authorization, a significant increase from the standard 12-month F-1/OPT period.

The court’s ruling does not take effect until February 12, 2016, allowing the Department of Homeland Security (“DHS”) sufficient time to promulgate a replacement rule through proper notice and comment procedures.  If DHS does not promulgate a replacement rule by or before February 12, 2016, work authorization for all foreign students who are working under the 17-month STEM extension will terminate as of that date and those students will either have to leave the country or go back to school/change to another lawful status to remain in the United States.

Because the ruling has not yet taken effect, until February 12, 2016, foreign students with STEM degrees who are employed in their initial 12-month F-1/OPT period may still apply for STEM extensions and the current F-1/OPT work authorization of foreign students with STEM extensions will remain valid.

If you have any questions about F-1/Opt status or Tydings' business immigration practice, please contact Melissa Calhoon Jones, chair of the Employment and Labor Group, via email or 410.752.9765.  For your information, Tydings offers a full spectrum of business immigration services, including H-1B, L-1, and P-1 visa petitions, TN and B-1 support letters, and all processes related to employment-based permanent residency.  We also offer H-1B/LCA compliance audits, I-9 audits, and advice on work authorization issues for foreign and U.S. workers.

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