DHS seeks additional time to finalize OPT regulation

The Department of Homeland Security (DHS) asked a federal court this week for an additional 90 days to finalize the regulation allowing for an extension of Optional Practical Training (OPT) for foreign students in science, technology, engineering, and mathematics (STEM) fields.

On Aug. 12, the court issued a ruling invalidating the regulation that authorized the STEM OPT extension, but gave the government until Feb. 12, 2016 to properly issue a new rule. This week, DHS requested that the court extend this deadline to May 10, 2016 to give the agency sufficient time to finalize the regulation, develop guidance, and train officers on the new requirements.

The current STEM OPT regulations remain in place at the present time.

DHS told the court that it put “all hands on deck” to develop and publish a new regulation. The proposed regulation, released in October, aims to reinstate and expand the STEM OPT extension and provided a 30-day public comment period. During that time, DHS received more than 50,000 comments on the proposal. According to the motion DHS filed this week seeking additional time, this volume of comments is “unprecedented” and will require additional time to review.

Meanwhile, the plaintiffs who brought the case to challenge the OPT program are seeking review of the legal issues in this case in the U.S. Court of Appeals for the District of Columbia.

BAL Analysis: The plaintiffs will likely oppose the government’s request for additional time. However, the judge has previously acknowledged the significant disruption that would occur if the regulation were to be invalidated without a replacement rule in place. BAL continues to monitor the progress of this litigation.

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