This past week, a Federal District Court decided Washington Alliance of Technology Workers v. DHS. The lawsuit sought to prevent foreign students from having an opportunity to gain practical experience in the U.S. following their full-time course of study.
The Court invalidated a 2008 U.S. Department of Homeland Security (DHS) rule which permits an F-1 student to receive up to a seventeen (17) month extension of their Optional Practical Training (OPT) on top of the twelve (12) months previously authorized (for a maximum of twenty-nine months), if their field of study is in a designated as a Science, Technology, Engineering or Math (STEM) field and the employer is registered in the E-Verify Program.
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The Court’s decision is based on the allegation that DHS did not lawfully issue the 2008 rule because DHS failed to provide the public with notice and an opportunity to comment in advance of issuing it – what is often commonly referred to as the normal “rule-making procedure”. DHS explained, at the time, that the STEM OPT extension was necessary because it would benefit the economy by reducing the disruption to U.S. high-tech employers that occurred when these F-1 STEM-degree graduates reached the end of their twelve-month OPT and their employers could not receive an H-1B classification for them to remain in the U.S. as highly-skilled workers because of the numerical limitations placed on H-1B visa numbers.
Interestingly, the Court found that the substance of the rule itself was not unreasonable. The Court spoke specifically to the procedure DHS followed to issue the 2008 rule. In addition, the Court invalidated DHS’ later modifications of the rule that expanded the list of designated fields of study. The Court stayed its order until early-2016 to allow DHS to correct its procedural mistake. As many are aware, in November 2014, President Obama announced new policies and regulations to support U.S. high-skilled businesses and workers. Part of that initiative is directed at the development of regulations for notice and comment to expand the degree programs eligible for OPT and to extend the length and use of OPT while “ensuring that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.”
The “ripple effect” of the Court’s Order in Washtech is likely to be the impetus of the Administration to issue proposed regulations for notice and comment. The “soon to be issued” proposed regulations will likely be more expansive and will benefit foreign students as well as U.S. employers and all workers.