Pursuant to the Secretary of Homeland Security’s announcement in February 2016 naming Libya, Somalia, and Yemen as countries of concern, the U.S. CBP has added additional security questions to the ESTA application.

Nationals of Visa Waiver Program countries who have been present in these three countries at any time on or after March 1, 2011 (with limited government/military exceptions) are no longer eligible to travel or be admitted to the United States under the VWP, absent a waiver issued in the law enforcement or national security interest of the United States.

Individuals who are no longer eligible for travel under VWP may still apply for a visa at U.S. embassies or consulates.

In the Spring of 2008, the Department of Homeland Security (DHS) implemented a new regulation allowing F-1 students who receive degrees in science, technology, engineering, or mathematics (STEM), are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion optional practical training (OPT) related to such a degree, to apply for a 17-month extension of their OPT status.

On August 12, 2015, the U.S. District Court for the District of Columbia ruled that the 17-month STEM extension for F-1 students was invalid, as the Department of Homeland Security implemented the rule without going through the regulatory notice and comment period. In light of the substantial hardship that this ruling would cause, the U.S. District Court gave the DHS until February 12, 2016 to go through the proper channels and implement a new rule regarding STEM OPT extensions.

In December 2015, DHS submitted a motion requesting an extension of time to complete the new rule. This motion was granted on January 23, 2016.

On March 9, 2016, DHS announced that the new final rule will go into effect on May 10, 2016. The final rule now allows foreign students with STEM degrees to obtain an additional 24-month extension (instead of the current 17-month extension). This will now provide foreign students with a full three years of OPT. As with the prior STEM OPT rule, extensions are permitted only for students employed by employers who participate in E-Verify.

In addition to the 24 month extension, the new rule includes some additional safeguard such as: requiring individualized training plans developed by the employer and the student; requiring the student to regularly report to the university’s designated school official; requiring the employer to attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker; requiring an employer to offer the same terms, conditions, hours, and compensation to the STEM OPT student as similarly situated U.S. workers; and allowing extensions only to students with degrees from accredited schools.

The new rule also authorizes ICE to perform site visits to verify training plans, compensation, and non-displacement attestations are in place.

U.S. District Court Grants 90-Day Extension to Department of Homeland Security for STEM OPT Rule

Upon completion of a U.S. undergraduate or graduate program, students with F-1 status receive 12 months of employment authorization, commonly called OPT (Optional Practical Training) to obtain practical training in their field of studies.

In the Spring of 2008, the Department of Homeland Security implemented a new regulation allowing F-1 students who receive degrees in science, technology, engineering, or mathematics (STEM), are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree to apply for a 17-month extension of their OPT status.

STEM extensions have been a great backup plan for employers and eligible foreign nationals who are unable to obtain H-1B status due to H-1B cap issues.

On August 12, 2015, the U.S. District Court for the District of Columbia ruled that the 17 month STEM extension for F-1 students was invalid, as the Department of Homeland Security implemented the rule without going through the regulatory notice and comment period. In light of the substantial hardship that this ruling would cause, the U.S. District Court gave the DHS until February 12, 2016 to go through the proper channels and implement a new rule regarding STEM OPT extensions.

In December 2015, DHS submitted a motion requesting an extension of time to complete the new rule, citing the unexpected and unprecedented number (50,500) of public responses received on the proposed rule. The request asked for a 90 day extension, which would provide an additional 30 days to complete the rulemaking and 60 days for a “delayed-effective-date” period, during which time the DHS would complete the required training of agency personnel. During this 60 day period, the agency would also develop guidance and train officers on the new program requirements, as well as develop and distribute training aids and materials to foreign students, U.S. schools and U.S. employers.

On January 23, the Court granted the DHS’s motion for an extension of time to finalize the STEM OPT extension rule. The DHS has been granted a 90 day extension, giving them until May 10 2016, to finalize and implement the new rule, as well as provide training to agency personnel, and develop training aids and materials.

Employers and foreign nationals who miss the H-1B cap filing deadline of April 1, 2016 will be watching for the new regulations to be announced on or before May 10, 2016. If the DHS does not implement a new STEM program before that time, it will be disastrous for employers and foreign nationals alike. Employers will lose their skilled and talented foreign nationals; greatly affecting productivity and profits. Foreign nationals will be forced to decide to remain in the U.S. and return to school to pursue a higher degree program, or if they will have to give up their dream and return to their home country.

Since its implementation in 2008, the STEM program has provided thousands of employers the opportunity to retain talented foreign nationals who were not selected for the H-1B lottery. The loss of the STEM program would be devastating for employers and foreign nationals.