As the Department of Homeland Security drafts new Optional Practical Training regulation, litigation continues in appeals court

Intense activity relating to the Optional Practical Training (OPT) program continues in both the courts and at the Department of Homeland Security (DHS). The OPT program allows foreign students to work after graduating from a U.S. university.

DHS is busy drafting a new regulation in response to the August order by U.S. District Court Judge Ellen Segal Huvelle finding procedural errors in the way DHS promulgated the regulation creating the 17-month OPT extension for science, technology, math, and engineering (STEM) students. Judge Huvelle gave the agency until Feb. 12, 2016 to enact a new regulation through proper rulemaking procedures that include a public notice and comment period. The order was the result of litigation challenging the 17-month STEM extension brought by Washington Alliance of Technology Workers (WashTech), a union that opposes most high-skilled immigration programs. The judge’s determination that DHS has legal authority to allow foreign graduates of U.S. universities to work in the U.S. was seen as a significant victory for the federal government, as it paves the way for the administration to extend and expand OPT.

Meanwhile, WashTech has filed an appeal in the U.S. Court of Appeals for the District of Columbia challenging almost every aspect of the judge’s ruling. The issues on appeal include the court’s holding that DHS did not exceed its statutory authority by allowing OPT, the standard of review the court applied, and the decision to give DHS until Feb. 12, 2016 to issue a new rule. Notably, WashTech is also appealing the District Court’s earlier ruling that the union did not have standing to challenge the 12-month OPT (non-STEM) program. If the appeals court decides to hear the case on the merits, the litigation could last through next spring.

BAL Analysis: To meet the Feb. 12, 2016 deadline, DHS will have to pursue an accelerated timeframe for finalizing the STEM OPT regulation. Immigration and Customs Enforcement (ICE), the agency that administers the F-1 visa and OPT program, is working with DHS to rewrite the regulation and it is expected that the proposed regulation could be issued as early as next month. Typically, the public will be allowed a 30-day comment period, during which time companies and associations will be able to weigh in on any proposed changes to the OPT program. Companies interested in monitoring or influencing the issue should contact a BAL professional. BAL is continuing to monitor both the regulatory process and the progression of the appeal in this case.

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