The U.S. District Court for the DC District vacated the rule that allows STEM students in F-1 status to extend their post-graduation Optional Practical Training (OPT) employment authorization for 17 months if they are working for an employer registered with the E-Verify Program. To avoid hardship to thousands of foreign students currently present and working pursuant to this rule, the District Court postponed the invalidation of the rule for six months, until February 12, 2016. According to the District Court, when issuing the rule in 2008 the US Department of Homeland Security (DHS) did not comply with the normal rulemaking process requiring the agency to issue a notice and allow for a certain period for public comment. Further, after the issuance of the initial rule, the DHS has continued to add more qualifying fields of study without going through the normal rulemaking process.
The DHS issued the rule in 2008 pursuant to emergency rulemaking provisions that allow an agency to issue rules for good cause without public notice and comment. The justification was that unless the rule was issued, thousands of foreign students who were unable to secure an H-1B work visa would have to leave the United States. This is due to several factors. First, the majority of foreign students will only qualify for the H-1B work visa. Second, the H-1B visa is subject to an annual quota that is generally met the first week it opens. Due to this oversubscription, many foreign students were not able to secure an H-1B visa before their one-year period of OPT work authorization expired. The DHS argued that the rule was necessary to allow these foreign students multiple opportunities to secure an H-1B work visa for several years.
What happens now? The hope is that the DHS will be able to issue a new rule for public comment as soon as possible to ensure that another provision is in place by February 12, 2016. E-Verify employers who directly employ STEM students working on their 17-month extension or employers that employ these individuals through contractors should continue to monitor the situation.