Court dismisses claims against STEM OPT regulation

A federal judge has dismissed a lawsuit brought by the Washington Alliance of Technology Workers (WashTech) that challenged the STEM OPT regulations.

The lawsuit challenged the 2016 regulation that allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to extend their one-year Optional Practical Training (OPT) period for an additional 24 months. The lawsuit also challenged the 1992 regulation that introduced the one-year OPT for certain F-1 students.

Among their legal claims, WashTech alleged that the regulations violated the Administrative Procedures Act, discriminated against American tech workers and increased the number of foreign employees in direct competition with U.S. workers for tech jobs.

Key points:

• The court found that WashTech lacked standing on its challenge to the 1992 OPT rule permitting the initial 12-month period of OPT.
• Although the court found that WashTech did have standing to challenge the 2016 STEM OPT regulation based on its members’ claims that the regulation harmed them by increasing competition in the STEM job market, the group did not allege sufficient facts to assert the claim. The court therefore dismissed the claims against the 2016 regulation.

Background: The litigation dates to 2014, when WashTech sued the Department of Homeland Security (DHS) over the previous regulation in force at the time that permitted the 17-month STEM OPT extension. A federal judge agreed that the STEM OPT rule, promulgated in 2008, was deficient in the way it was issued, but allowed DHS time to issue a new regulation through proper rulemaking procedures. DHS proposed a new rule for notice and comment, and issued a final rule in March 2016. In June 2016, WashTech filed the lawsuit challenging the new rule.

BAL Analysis: The dismissal ends this lawsuit, and the current rules governing OPT and the 24-month STEM extension remain in place. WashTech has not yet indicated whether it will appeal the ruling. The Trump administration has signaled an intention to limit work authorization for foreign students but has not yet taken action. If the administration seeks to modify the OPT regulation, it is expected that the government will do so through notice-and-comment rulemaking. As a practical matter, this would mean that the current version of the OPT regulation would remain in place for the next six to 12 months. BAL will continue to monitor for any developments regarding the STEM OPT program.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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