January 26, 2016

Breaking Immigration News: F-1 OPT STEM Decision Extended Until May 10, 2016; Gives DHS Additional Time to Implement Final Rule

On January 23, 2016, Judge Huvelle of the U.S. District Court for the District of Columbia granted a motion to extend the current stay of her prior order which will allow the Department of Homeland Security (DHS) to utilize this extension of time to finalize its rulemaking for the F-1 OPT STEM program. DHS requested the extension from February 12, 2016, until May 10, 2016, to finalize review of the more than 50,000 comments received during the notice and comment period pursuant to its recent proposed rule and to implement its final rule on the F-1 OPT STEM program.

DHS published this proposed rule in the Federal Register on October 19, 2015, titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.” The government is proposing an expansion of the F-1 OPT STEM program pursuant to President Obama’s Executive Action plan outlined in late 2014 and is also addressing concerns about the initial F-1 OPT STEM rule based on Judge Huvelle’s decision from August 2015.

WashTech Lawsuit and Court Decision

In March 2014, a group of IT workers filed a lawsuit challenging the entire F-1 OPT program. The lawsuit alleged that the DHS had no authority to create the F-1 OPT program. The lawsuit specifically claimed that the 2008 F-1 STEM OPT extension interim final rule should be invalidated due to the agency’s failure to follow required notice and comment procedures. In a decision and order dated August 12, 2015, the U.S. District Court for the District of Columbia concluded that DHS failed to follow the required notice and comment procedures under the Administrative Procedures Act (APA). The Court invalidated and revoked the 2008 rule. However, the Court stayed its ruling until February 12, 2016, to allow DHS time to promulgate a new rule through proper notice and comment procedures. This court ruling caused USCIS to expedite its OPT rulemaking process, resulting in the October 19 proposal. Additional information on the WashTech ruling is available in a court decision from August 2015.

After the court’s decision, WashTech filed an appeal, and DHS published the long-awaited proposed F-1 OPT STEM rule (see p. 7 of January 23, 2016, court decision). During the 30-day comment period, which ended on November 18, 2015, DHS received more than 50,000 comments. In its filings with the court, DHS indicated that it received more comments than with all the comments received on the “next four most-commented-on DHS rules combined.”

Prior to the holidays, DHS filed a motion to extend the stay of the vacatur of the current 2008 F-1 OPT STEM rule from February 12, 2016, until May 10, 2016. In its motion, DHS argued that it needed about 30 days to complete the rule-making and then a 60-day period for the rule to become effective so that the agency can train personnel and coordinate the new rule with students, schools, employers, etc. who would be governed by this regulation. WashTech filed a response to this motion, and the court heard arguments on the motion on January 21, 2016.

On January 23, 2016, Judge Huvelle issued her decision granting DHS’s motion to extend the stay until May 10, 2016. In the decision granting the motion to extend, the court determined that the initial six-month stay from August to February was overly optimistic. The court stated the following in the decision to extend the stay for an additional period of three months:

“By the same token, the equities that warranted a stay in the first place — undue hardship to STEM OPT participants and employers — remain the same. The significance of that hardship cannot be overstated. According to DHS, there are approximately 23,000 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 ... If the stay is not extended, many of these people would be adversely affected, either by losing existing work authorization, not being able to apply for the OPT extension, or not knowing whether they will be able to benefit from the extension in the future.”

See January 23, 2016, court decision at p. 9.

New F-1 OPT STEM Extension Proposed Rule — Issued October 19, 2015

On October 19, 2015, DHS issued a proposed rule titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.” The proposed rule asked for comments on the entirety of the rule in order to comply with the WashTech decision. The proposed rule also provides added benefits and restrictions on the F-1 OPT STEM extension and process. As outlined above, the government is in the process of reviewing the more than 50,000 comments and finalizing this proposed rule. As soon as this proposed rule is published as a final rule, we will provide a further legal update.

For additional specifics and highlights of the proposed rule, see:

Conclusion

Judge Huvelle has provided much needed relief for schools, students and employers with the extension of the stay until May 10, 2016. Affected F-1 students can continue to work under their current F-1 OPT STEM EAD cards, apply for extensions and additional work authorization, etc. Schools can continue to grant Form I-20s with this work authorization, and employers can continue to employ such F-1 OPT STEM students with valid work authorization. During this additional time, DHS will issue the final rule based on the October 19 proposed rule and the comments received. As soon as the final rule is released, we will provide additional information on the rule and its effective date.

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