WashTech opposes DHS’s request for additional time to finalize STEM OPT rule

11 Jan 16

UNITED STATES

The Washington Alliance of Technology Workers (“WashTech”) has filed its response in opposition to the Department of Homeland Security’s request for an additional 90 days to finalize its regulation that allows students in science, technology, engineering, and mathematics (STEM) fields to extend their Optional Practical Training (OPT).

The existing STEM OPT rule continues to remain in place at this time.

DHS is in the process of rewriting the regulation governing the STEM OPT extension because of ongoing litigation brought by WashTech. In August, a federal judge found procedural deficiencies with the 2008 STEM OPT rule, but postponed invalidating it and gave DHS until Feb. 12, 2016 to issue a new regulation.

DHS proposed a new rule in October, but recently asked the court to extend the deadline until May 10, 2016 because of the avalanche of public comments the agency received during the comment period. DHS argued it needs an additional 90 days to finalize the rule, develop guidance, and train its officers on the policy changes.

Meanwhile, WashTech has appealed the case. One of its arguments on appeal is that the lower court should have invalidated the rule immediately, rather than postpone it until February. Now that this issue is before the appeals court, WashTech argues that the lower court does not have jurisdiction to grant even more time to DHS to finalize the rule. WashTech also asserts that DHS’ “own strategic choices” have caused the agency’s inability to finalize a rule by the deadline. The group is asking the court to deny the extension and allow the pending appeal to proceed “without further meandering or delay.”

BAL Analysis: Now that WashTech has filed its response to DHS’s motion, the judge will issue a ruling either granting or denying the government’s request for an extension of the Feb. 12 deadline. The judge would also have discretion to grant an extension for a shorter period of time than DHS requested. At this time, the existing STEM OPT regulation remains in place. BAL will provide an update regarding the ruling, and continues to monitor the ongoing appeal in this case.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.