To the relief of thousands of foreign nationals and many U.S. businesses and higher education institutions, on January 23, 2016, the federal district court in Washington D.C. presiding over Washington Alliance of Technology Workers v. U.S. Department of Homeland Security (CV. No. 14-1529) extended the validity of the existing Optional Practical Training (“OPT”) regulation for F-1 students in Science, Technology, Engineering, or Mathematics (“STEM”) fields until May 10, 2016. The court granted the Department of Homeland Security (DHS)’s Motion to Stay the existing vacatur of the 17-month STEM OPT extension after DHS sought more time to respond to over 50,000 comments submitted in response to its proposed enactment of a new STEM OPT regulation that would extend this work authorization period to 24 months.

Background

We previously described the circumstances surrounding the vacatur of the existing 17-month STEM extension, and the October 20, 2015, DHS proposal of a new 24-month STEM OPT extension.

Court filings indicate that after DHS’s publication of a Notice of Proposed Rulemaking on October 19, 2015, it received an unprecedented 50,500 comments, which is more than it received in response to its next four most commented on DHS rules, combined. Under the Administrative Procedures Act (“APA”), the federal government must respond to these comments and demonstrate that the public had a meaningful opportunity to participate in the formulation of the rule. The final rule must then be published at least 30 days before its effective date with a statement explaining the purpose of the proposed rule.

The court analyzed DHS’s request under the “exceptional circumstances” requirement of the Federal Rules of Civil Procedure and concluded that DHS had made such a showing. It also concluded that the balance of the equities continue to warrant a temporary extension of this stay. The court took notice of DHS-cited statistics, namely that there are approximately 23,000 STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who may be eligible for STEM OPT authorization. The Court concluded that hardship to them and the technology sector, as well as the adverse impact on the public interest in the United States if the extension were not granted, collectively justified granting DHS’s Motion.

Practical Pointers

The court’s decision eliminates the disruption that employers, educational institutions, and thousands of foreign nationals would have experienced if the existing rule had been vacated effective Feb. 12, 2016. The extension of the existing rule through May 10, 2016, also means that foreign workers sponsored for H-1B visas this year who are currently in their STEM OPT extension period should remain eligible for a change of status and “cap-gap” coverage through October 1, 2016, if, as expected, DHS preserves such benefits in the final rule. If DHS permits individuals who have previously availed themselves of the 17 month extension to seek an additional 7 months (for a total of 24 months) under the new rule, this could have important implications for foreign nationals who are not selected in the H-1B lottery this year.

Nevertheless, while the court’s decision is welcome news, educational institutions and U.S. employers must begin preparing for what are expected to be far-reaching changes to the OPT program in the final rule. The new regulation is expected to create a greater administrative burden for U.S. employers, who will be required to participate in creating a training plan with a foreign national seeking the STEM extension. Designated School Officials (DSOs) at educational institutions with foreign nationals enrolled in STEM programs will also be expected to take on a more significant role in verifying that a foreign national’s employment during this OPT period is closely related to the field of study.  We expect the proposed final rule to be published by early April to ensure its implementation by the expiration date of the existing rule.