We’ve been closely watching the “end” of the current STEM EAD extension rule implemented in 2008, as a Federal District Court Judge struck down the rule supporting the program last August. Realizing that an immediate ruling to strike the rule would wreak havoc on technology workers and their employers the Judge immediately stayed her ruling until February 12, 2016. The stay was intended to allow DHS time to fix the notice error that had caused the program’s cancellation. DHS expeditiously moved through its rulemaking and introduced a draft rule last fall and received over 50,000 responses. This unprecedented number of inquiries has now delayed the replacement rule implementation and left employees and employers wondering how this problem will work itself out.
Given the delay in finalizing a new rule, DHS attorneys requested a further 90 day stay of the Judge’s order, and in a decision written on January 23, 2016 the Judge provided the 90 day stay. DHS attorneys were also looking for a declaration from the Judge confirming that STEM EADs issued for dates past the date in which the rule ceases to exist are still entitled to use their EAD. The Judge chose not to rule on that question. As a result, the current situation is as follows:
1 – STEM EADs are available now and until May 10, 2016. If you have an EAD that expires between now and 5/10/16 that is otherwise eligible for a STEM EAD extension then you can and should apply now (this includes people who applied for a STEM EAD extension and were shortchanged, with an expiration that was set at 2/12/2016). If you apply now, know that they will likely only permit a STEM EAD extension document that is approved until 5/10/16 as this is the new date when the program is set to be cancelled;
2 – Those STEM EADs that have been granted for dates that run past 5/10/16 are still valid EADs until at least 5/10/16. We are still awaiting clarification from USCIS as to how they will handle any STEM extension EADs that expire after 5/10/16 – specifically are they still valid work documents as DHS contended in the recent court action.
To help clients understand how this all plays out, let’s run you through an example. E.g. – imagine a scenario where Jeff, a foreign student, has an OPT EAD that expires on February 2nd, 2016. Based on the ruling, Jeff can now file for a STEM EAD extension and ask for an additional 17 months. He can apply immediately and by filing the extension request before the current EAD expires, he is able to continue working past the February 2nd expiration. Despite filing and asking for a 17 month STEM EAD extension, Jeff is likely to receive an EAD that expires on 5/10/16 based on when the STEM EAD extension rule is voided. There is also a chance that given how soon May 10th is, that Jeff won’t actually have his EAD issued before that date. In any event, under either scenario, Jeff is work authorized through 5/10/16 because he timely requested a new EAD. During the next few months DHS is expected to give us a new STEM EAD extension option that is good for 24 months. That new rule is meant to be in place prior to 5/10/16. In this scenario Jeff will then file for another STEM EAD extension asking for the remainder of the full 24 months he should be entitled to under the new draft rule. In short, Jeff would apply twice for EADs, each within about 90 days of each other, to ensure that he has continuing authorization to work. This is not an ideal situation, but it ultimately avoids any period of status violation or loss of work eligibility.
We will continue to monitor and update on the status of this very important program and provide updates as they become available. If you have an employee who has an upcoming EAD expiration or early STEM EAD extension, please let us know as soon as possible.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **