25 January 2016
Employers and F-1 student visa holders currently working under Science, Technology Engineering and Mathematics (STEM) Optional Practical Training (OPT) extensions received encouraging news on Saturday from the US District Court for the District of Columbia. The Court extended by 90 days the stay of its August 12, 2015, decision to vacate the STEM OPT rule promulgated by the US Department of Homeland Security (DHS) in April 2008.
In Washington Alliance of Technology Workers (Wash Tech) v. DHS, the court ruled that the STEM OPT rule promulgated by DHS in 2008 did not follow proper procedural rulemaking requirements. To avoid substantial negative impact on foreign students and their employers, however, the court stayed the effect of its ruling until February 12, 2016, to allow DHS time to cure the procedural defects in the 2008 regulation. In response to the ruling, DHS published a proposed rule for public comment on October 19, 2015.
On December 22, 2015, DHS moved the court to extend the stay for 90 days from February 12 to May 10, 2016, based upon “exceptional circumstances,” including the receipt of more than 50,000 comments on the new proposed rule. On January 23rd, the court agreed with DHS, extending the stay until May 10, 2016. In its decision granting the motion, the court held that “the balance of equities clearly weighs in favor of an extension,” citing the hardship that denying the extension could have upon the “approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations.”
The 90-day extension provides DHS additional time to review the comments on the new proposed rule and to issue a final rule for STEM OPT extensions. In ruling on the motion the court made clear that it would not entertain any requests for further extension of the stay.
On the Horizon
Among other changes, DHS proposed expanding the STEM extension of OPT from 17 months to 24 months. Whether that and other proposed changes survive will depend on a careful review by DHS of the more than 50,000 comments it received during the comment period. Wash Tech had opposed the DHS motion arguing lack of jurisdiction and a failure of DHS to demonstrate “extraordinary circumstances.” In its opposition, the organization made clear that it will be back to challenge the “replacement” rule in court.