Litigation challenging STEM OPT regulation moves forward

30 Mar 17

UNITED STATES

The legal challenge to the 2016 regulation that expanded the Optional Practical Training (OPT) extension for science, technology, engineering and mathematics (STEM) degrees continues to progress. On Thursday, the court issued an order granting in part and denying in part the Department of Homeland Security’s (DHS) motion to dismiss the lawsuit, and is expected to issue a final order and opinion in the next 30 days. A status conference is scheduled for April 10.

What is the STEM OPT 2016 regulation?

On May 10, 2016, the final rule titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” went into effect. The regulation allows foreign students on F-1 visas with qualifying STEM degrees to extend their OPT for an additional 24 months beyond the initial one-year OPT period. Students may also be eligible for one additional STEM extension if they obtain a second U.S. STEM degree at a higher level.

The 24-month extension effectively replaced a 2008 rule allowing the 17-month STEM OPT extension previously available to certain students. The core purpose of the extension is to allow participating students to supplement their academic knowledge with valuable practical STEM experience with a U.S. employer qualified to develop and enhance their skills. The student’s STEM degree must be awarded by an accredited U.S. college or university and be in a subject that DHS recognizes as a STEM field.

The regulation also aims to increase the government’s oversight of the STEM OPT program by requiring formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, allowing extensions only to students with degrees from accredited schools, and requiring employers to enroll and remain in good standing with E-Verify. The rule also keeps in place Cap-Gap relief for any F-1 student with a timely filed H-1B petition and request for change of status.

In the process of implementing the final STEM OPT rule, DHS engaged in required notice-and-comment rulemaking procedures and received 50,500 comments from a range of entities and individuals, including U.S. and international students, U.S. workers, schools, universities, professional associations, labor organizations, advocacy groups, businesses and other interested parties.

What is the current status of the litigation?

When the new STEM OPT regulation took effect in 2016, The Washington Alliance of Technology Workers (WashTech) filed a second lawsuit against DHS challenging the regulation in the U.S. District Court for the District of Columbia. DHS filed a motion to dismiss WashTech’s claims, and the court issued a two-page order Thursday granting that motion in part and denying it in part. The order states that the reasons for the ruling will “be set forth in the Memorandum Opinion to be issued by the Court within the next thirty days, absent extraordinary circumstances.”

A status conference has been postponed twice and is scheduled for April 10, 2017 at 11:30 a.m. before Judge Reggie B. Walton.

What is the history of the litigation?

While the 2008 rule was in effect, a collective-bargaining organization representing STEM workers, WashTech, brought a legal challenge against the 2008 rule extension. WashTech argued that its members had been injured by the OPT program because the program “increases the number of economic competitors” and “exposes WashTech members to unfair competition by allowing aliens to work.” DHS stated that it had issued the 2008 rule without the notice and public comment “to avoid a loss of skilled students through the next round of H-1B filings in April 2008.”

In August 2015, the U.S. District Court for the District of Columbia ruled that the 2008 regulation was invalid due to procedural deficiencies; namely, that the rule had not been subject to the standard rulemaking process allowing for a notice-and-comment period. However, the court gave DHS until Feb. 12, 2016 to issue a replacement rule which would follow the standard rulemaking process. DHS requested an extension of the deadline until May 10, 2016 after receiving an unprecedented number of comments on the proposed new rule published in October.

As the new rule came in effect, the District Court for the District of Columbia threw out the WashTech lawsuit, stating that the case was moot.

BAL Analysis: The court’s order Thursday granting in part and denying in part the government’s motion to dismiss indicates that one or more of WashTech’s legal claims will still proceed, and the lawsuit will continue to progress. Employers should keep in mind that the existing STEM OPT rule remains in place at this time. Employers who require assistance and guidance with STEM OPT extensions should contact their BAL professional for specific advice. BAL continues to monitor this case and will provide updates on new developments.

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

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