17 Month OPT STEM Extension Rule Struck Down – What Next?

The U.S. District Court for the District of Columbia has struck down provisions of the April 2008 Department of Homeland Security (DHS) Interim Final Rule that extended the period of Optional Practical Training (OPT) by 17 months for F-1 students with a qualifying STEM degree (degree in Science, Technology, Engineering, or Mathematics).

The Court has, while vacating the 17-month OPT STEM extension described in the 2008 Rule, also ruled that the order vacating the Rule will remain stayed until February 12, 2016.

Background

Under the OPT STEM Extension program, F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, who are employed by employers enrolled in E-Verify, and are in an approved post-completion OPT period based on a designated STEM degree, are eligible to apply for a 17-month OPT STEM extension.

The April 2008 DHS Rule extending the duration of optional practical training for eligible STEM students was challenged by Washington Alliance of Technology Workers, a collective-bargaining organization that represents STEM workers. The plaintiff alleged, among other contentions, that the 2008 Rule and the subsequent modifications in 2011 and 2012 exceeded DHS’s statutory authority.

August 12, 2015 Ruling in the case of Washington Alliance of Technology Workers v. USDHS

April 2008 Rule Vacated

After considering the submissions made and materials presented, the U.S. District Court for the District of Columbia held that DHS promulgated the 2008 Rule without notice and comment, but failed to demonstrate that it faced an “emergency situation” that exempted it from subjecting the 2008 Rule to notice and comment. Observing that failure to provide notice and invite public comment is a serious procedural deficiency, the court ruled that the 2008 Rule and its subsequent amendments be vacated.

The February 12, 2016 Deadline

The court also observed that immediate vacatur of the 2008 Rule would be seriously disruptive, leading to thousands of foreign students with work authorizations to scramble to depart the United States, and could also impose a costly burden on the U.S. technology sector if thousands of young workers had to leave their jobs in short order.

Accordingly, the Court has also ruled that the vacatur be stayed until February 12, 2016, to allow DHS to submit the 2008 Rule for proper notice and comment. The matter has now been remanded to DHS for further proceedings consistent with the Opinion of the Court.

With the Court remanding the matter to DHS, we await to hear further from the agency in this regard. We at VisaPro are closely monitoring the developments and will keep our readers informed as more information becomes available in this matter.

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