Court dismisses tech union’s challenge to STEM OPT rule

A federal court on Friday dismissed the Washington Alliance of Technology Workers’ challenge to a 2008 Department of Homeland Security Optional Practical Training (OPT) rule, saying the matter is “moot” after a new rule took effect this week.

In August 2015, a judge on the U.S. District Court for the District of Columbia ruled that a 2008 regulation authorizing the extension of OPT for science, technology, engineering and mathematics (STEM) students was invalid due to procedural deficiencies, namely that the rule had not been subject to the standard rulemaking process allowing for a proposal and comment period. The court did, however, give DHS until Feb. 12 to issue a replacement rule following this process. DHS requested an extension of the deadline until May 10 after receiving an unprecedented number of comments on the proposed new rule published in October.

DHS released the text of the new rule in March and it took effect May 10. Because the new rule rendered the 2008 rule moot, the court on Friday dismissed WashTech’s lawsuit in a one-page per curiam order.

The new rule allows F-1 students with degrees in approved STEM fields to extend their OPT for an additional 24 months beyond the initial one-year OPT period. Students may be eligible for one additional STEM extension if they obtain a second U.S. STEM degree at a higher level. The rule imposes new reporting requirements and other obligations on students, designated school officials (DSOs), and employers, including a formal training plan signed by the employer and student.

BAL Analysis: Employers who need assistance and guidance with STEM OPT extensions should contact their BAL professional for specific advice.

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

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