By Farhad Sethna, Attorney © 2015
On August 12, 2015, the United States District Court for the District of Columbia, in “Washington Alliance of Technology Workers v. U.S. Department of Homeland Security” (Case No. 14-529) issued a memorandum opinion.
As background, the Washington Alliance had challenged the validity of the 2008 DHS rule which extended the OPT period by an additional seventeen months for individuals who held STEM (Science Technology Engineering and Mathematics) degrees. In so doing, the DHS opined that because of the H-1B Cap, many thousands of STEM students would be denied the ability to continue working in the USA for US employers. This would place a great hardship on the employers, because thousands of professional workers in STEM fields would have to leave the United States on the completion of their twelve months of post completion optional practical training. The DHS therefore extended the optional practical training by an additional seventeen months, for a total of twenty nine months. However, the additional seventeen months would be available only to students who had graduated from a STEM program.
In filing the lawsuit, the plaintiffs alleged that the DHS improperly created additional competition in the US labor market. They contend that US workers would be denied employment due to the easy availability of OPT-STEM eligible graduates.
In a lengthy and very well reasoned discussion, the US District Court Judge held that it was within the boundaries of the department of Homeland Security (and in this case, the USCIS), to regulate immigration, including the grant of the initial twelve months period of OPT for all graduating students, as well as the additional seventeen months of OPT for STEM students.
However, the court agreed with te plaintiffs that the DHS had not properly created regulations that would grant such additional OPT status. The original extension was promulgated simply by issuance of a proposed rule making in the federal register and the interim final rule became effective in early 2009. There was no regulation issued concerning the additional STEM OPT time.
Additionally, the court also found that there was no emergency, as the DHS claimed, to promulgate such a rule so quickly. The court found that students on OPT who were not able to secure an H-1B visa under the Cap had been negatively affected since at least 2005, because the H-1B Cap was reduced to sixty five thousand since fiscal year 2004. The court reasoned that since such students and such employers had already suffered the effects of the reduced H-1B Cap for at least three years before the DHS promulgated its interim final rule, the situation could not be quite as emergent as the DHS claimed.
Therefore, the court ordered that the DHS promulgate appropriate regulations regarding the extra STEM OPT extension through the usual processes- Notice and comments in the federal register followed by appropriate issuance of final regulations. The court however did recognize that there were thousands of employees and employers who were already dependent on the OPT, and immediately vacating the STEM OPT extensions would cause significant hardship to not only these graduates, but also to their employers and therefore, the US economy.
The court therefore vacated the interim final rule, but stayed (held back) that denial until February 12, 2016. During that time, the court ordered that the DHS should submit the 2008 rule for proper notice and comment, and then promulgate final regulations.
The court retains jurisdiction over this case, and will issue an order on or after February 12, 2016.
This opinion does not mean that STEM OPT is unavailable at this time. The court clearly enjoined (stopped) the interim final rule granting the STEM OPT extension. But it has simultaneously stayed or delayed the implementation of its order until February 12, 2016. Therefore, it is my opinion that STEM OPT can continue to be issued upto that date. However, if DHS does not issue new regulations, then it is very likely that come February 12, 2016, the STEM OPT extension may be rejected altogether.
For further details on this very important issue, stay tuned to this blog!
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.