Judge grants DHS additional time to finalize STEM OPT regulation

A federal judge has granted the Department of Homeland Security’s request for additional time to issue a final rule on Optional Practical Training (OPT).

DHS now has until May 10 to finalize its proposed STEM OPT regulation.

On Aug. 13, 2015, the U.S. District Court for the District of Columbia ruled that the current regulation authorizing the extension of OPT for science, technology, engineering and mathematics (STEM) students must be invalidated due to procedural deficiencies. However, the court gave DHS until Feb. 12 to issue a replacement rule. DHS requested an extension of this deadline until May 10, after receiving an unprecedented number of comments on the new rule the agency published in October.

The court granted this request over the weekend, after hearing oral arguments last week from DHS and plaintiff Washington Alliance of Technology Workers (“WashTech”), the union challenging the OPT program. By granting the extension, the court has effectively postponed its previous deadline of Feb. 12 to May 10, leaving the current rule governing the STEM OPT extension in place in the meantime.

In her opinion granting DHS’s motion, District Judge Ellen S. Huvelle stated that the concerns of “undue hardship to STEM OPT participants and employers” that initially led her to postpone invalidation of the rule “remain the same,” and that “[t]he significance of that hardship cannot be overstated.”

DHS published a proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” Oct. 19 and received more than 50,000 comments during the 30-day comment period that followed. The proposed rule would expand the STEM extension and create new obligations for employers.

WashTech’s legal challenges to the OPT program are still on appeal in the U.S. Court of Appeals for the D.C. Circuit.

BAL Analysis: This extension of time means that students and employers will not experience a disruption on Feb. 12 if a replacement rule is not yet finalized. Current rules governing STEM OPT will continue to remain in place as DHS works to finalize its new regulation. DHS has indicated that it plans to publish a final rule within 30 days, which will become effective 60 days after its publication. BAL is monitoring the progress of the regulation and the ongoing appeal in this case.

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