DHS Requests Court to Delay End of STEM OPT

The U.S. Department of Homeland Security (DHS) has filed a motion requesting a delay in the termination of the existing STEM optional practical training (OPT) rule. The reason for this request is that the DHS needs more time to put a new STEM OPT regulation in place.

Background: Successful Challenge to STEM OPT

As previously discussed, the regulation that created STEM OPT was struck down by the U.S. District Court for the District of Columbia in August 2015. The court ruled that the DHS did not follow proper procedures in the creation of the STEM OPT regulation. However, in order to avoid disruption, the court delayed the effective date of the elimination of the regulation until February 12, 2016 to allow the DHS time to properly implement a replacement regulation.

Proposed Regulation Published

The DHS published a proposed replacement STEM OPT regulation on October 19, 2015. This proposed regulation contains many new provisions and changes, as outlined in the MurthyDotCom NewsBrief, New STEM OPT Proposed Regulation Published (20.Oct.2015).

Request for More Time

In filing this motion, the DHS notes that the agency received an unprecedented number of public comments – approximately 50,500 – during the required 30-day comment period. The DHS must review and consider the comments before the new regulation may be enacted. The DHS further argues that the delay is necessary in order to develop guidance and train officers in the new STEM OPT requirements. The DHS will also have to provide guidance and training aids to schools, foreign students, and employers.

This is a substantial task and, thus, the DHS is asking for a 90-day extension based upon extraordinary circumstances. The motion cites the substantial hardship that will be faced by foreign students and the major labor disruption for the technology sector recognized earlier by the court as reasons justifying this request.

Conclusion

The plaintiff in the case, Washington Alliance of Technology Workers, plans to oppose the DHS motion. MurthyDotCom will post an update when the court rules on this motion.

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