STEM OPT Could End in February 2016

On August 12, 2015, the decision was issued by a U.S. district court that will serve to terminate the 17-month optional practical training (OPT) extension program for F-1 STEM students unless the U.S. Department of Homeland Security (DHS) addresses the matter within the next 6 months. The court found that the U.S. Citizenship and Immigration Services (USCIS) improperly bypassed the public comment process when creating the STEM OPT extension program in 2008. Therefore, the court ordered that the program be cancelled. Fortunately, however, the court stayed this order until February 12, 2016, “…during which time [the Department of Homeland Security (DHS)] can submit the 2008 Rule for proper notice and comment.”

Important Decision for Students

OPT has been a part of the foreign student experience since as early as 1947. Judge Ellen Huvelle noted in her decision in Washington Alliance of Technology Workers v. USDHS, that the DHS and the legacy Immigration and Naturalization Service (Legacy INS) have, over nearly 70 years, interpreted U.S. immigration law to allow foreign students to engage in periods of practical training. Had the court ended STEM OPT immediately, it would have been extremely disruptive to thousands of foreign students and their employers. Fortunately, Judge Huvelle weighed the impact of the decision against the error committed by the DHS and decided to stay the decision for six months to allow the government to take corrective measures.

U.S. Tech Workers Have Standing to Sue

The plaintiff in this case, Washington Alliance of Technology Workers, is an organization that represents a group of U.S. STEM workers. One important finding in this court case was that this group was sufficiently affected by competition from F-1 students to have legal standing to challenge the 2008 interim regulation. Although the DHS argued that the U.S. workers were not in direct and current competition with F-1 STEM program graduates, the court found that the competition was real and the injury sufficient to allow the U.S. workers to bring the lawsuit in federal court.

Court Holds That 17-Month STEM Extension Violates APA

The main concern before the court was whether the DHS violated the Administrative Procedure Act (APA) in creating the STEM OPT rule. Ordinarily, in order to implement such a rule, the federal agency must follow a regimented process, which includes a notice and comment period. The DHS skipped this step in issuing the STEM OPT rule based on a section of the APA that provides an exception to the requirement for notice and comment. Specifically, federal agencies can bypass this part of the process if there is good cause to find notice and comment to be impracticable, unnecessary, or contrary to the public interest.

The DHS argued that, when the rule was created in 2008, it had to be done so urgently in order to avoid an economic crisis. As the DHS explained at the time the rule was implemented, “[t]he ability of U.S. high-tech employers to retain skilled technical workers…would be seriously damaged if the extension of the maximum OPT period…is not implemented early this spring, before F-1 students complete their studies and, without this rule in place and effective, would be required to leave the United States.” Judge Huvelle, however, rejected this argument, noting that the DHS “…does not explain why it waited to initiate proceedings on this issue, and it has not pointed to any changed circumstances that made the OPT extension suddenly urgent.”

OPT Reaffirmed

While Judge Huvelle permitted the U.S. STEM workers to bring this lawsuit and vacated the STEM OPT rule, she nevertheless gave broad overall support to the OPT program. Judge Huvelle ruled that the interpretation by the DHS of immigration law to allow OPT was proper. This implies that if the DHS takes the necessary actions to properly reimplement the STEM OPT rule, that it may well survive any future challenges in court.

STEM OPT In Limbo

As noted above, Judge Huvelle stayed her decision to vacate or void the 2008 STEM OPT rule until February 12, 2016, in part to give the DHS time to reissue the rule properly. Until this date, it appears the USCIS will continue to accept STEM OPT applications. Further, if the DHS works to reissue the rule quickly, the STEM OPT program may be able to continue without interruption. If not, it would likely mean that, come February 12th, new applications would no longer be accepted; and, if that occurs, it may even impact those with existing STEM OPT extensions, but how and to what extent is not yet clear. The hope, of course, is that the DHS will work swiftly to reimplement the rule and avoid any need to address this concern.

Conclusion

The current uncertainty surrounding STEM OPT is disappointing and potentially highly disruptive. Fortunately, the DHS has an opportunity to correct this problem. The Murthy Law Firm is strongly urging the DHS to work expeditiously to ensure that the STEP OPT program remains in place. Subscribe to the free MurthyBulletin to stay informed of any related developments.

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