Update on STEM OPT Litigation
Update: DHS Asks Court to Extend Stay on STEM OPT Until May 10, 2016
What is the Update?
On December 22, 2015, the U.S. Department of Homeland Security (DHS) filed a motion requesting that the U.S. District Court for the District of Columbia extend the stay of vacatur of the 2008 STEM OPT Interim Final Rule for 90 days, in order to give the Government additional time to analyze the more than 43,000 comments that were received in response to the Notice of Proposed Rulemaking issued by the Agency on October 19, 2015.
Can we get that in non-legalese?
Sure. Basically, DHS has asked for more time to complete the proper rule-making procedure to continue the STEM OPT program it initially implemented in 2008. The DHS states it needs more time to go through the more than 43,000 comments it received and respond to them as required. It also needs time to develop guidance, train officers and educate the public in the new aspects of the STEM OPT program as announced in October 2015.
The Court must decide if it will allow DHS until May 10, 2016 to get this together, or whether it will hold DHS to the original deadline of February 12, 2016.
What happens if the Court grants the extension?
If the Court grants DHS the extension, the current STEM OPT program will continue uninterrupted until 5/10/16, by which time DHS must have gone through the procedural steps required to continue the program. DHS can then also implement the changes to the STEM OPT program that it proposed when it issued its formal “Notice of Proposed Rulemaking” in October 2015. For details on the proposed STEM OPT program, please click here.
What happens if the Court refuses to grant the extension?
If the Court denies the extension, DHS must fully comply with the Administrative Procedures Act (APA) by the current Court-imposed deadline of February 12, 2016. Under the APA, an agency must publish a proposed rule with a request for public comment, collect those comments, and then publish a final rule that takes those comments into account. The agency need not incorporate any of the suggestions received during the comment period into the final rule. However, it must provide a reasonable explanation for the decisions it made to include or exclude those suggestions.
How did we get here?
In 2008, the DHS implemented 17-month extensions of Optional Practical Training work authorization for F-1 students who graduated in a STEM field, and whose employer was enrolled in E-Verify. In 2014, an organization called the Washington Alliance of Technical Workers, a collective bargaining association which represents technology workers, sued DHS, saying the OPT program was unlawful because the DHS did not follow the proper rulemaking procedures before implementing the program.
In August 2015, the Court ultimately agreed that the STEM OPT extension program was invalid, because DHS promulgated the rule without the proper notice and without allowing for public comment. However, instead of cancelling STEM OPT immediately, which would have had a very detrimental effect on students and their employers, the Court allowed DHS until 2/12/16 to go through the proper rulemaking procedures.