District Court Judge Grants DHS's Request for Extension in STEM OPT Litigation

On Saturday, January 23, 2016, the U.S. District Court for the District of Columbia granted DHS's request for an extension of time to implement new STEM OPT regulations.  Originally, the Court stayed the invalidation of the current STEM OPT regulations and gave DHS until February 12, 2016, to implement the new rule.  On October 19, 2016, DHS published the new rule as part of the required notice and comment period. On December 22, 2016, DHS requested an extension of this deadline in light of the large amount of comments (over 50,000) the agency received during the notice period. This weekend, the District Court granted DHS's request for an extension to May 10, 2016, giving the agency almost three additional months to review the comments received during the notice period and publish a final rule.  

This extension comes as a welcome relief to STEM students given the uncertainty surrounding their status and employment authorization if DHS did not meet the original February deadline. DHS will hopefully provide clarification as to whether individuals with STEM extension requests pending at the time the new regulation takes effect will be eligible for a 17-month extension under the old regulation or a 24-month extension under the new regulation .  Students who will become eligible to file a STEM extension between now and May 10 should contact immigration counsel to discuss the timing of the filing prior to submitting their extension request.

D&S will continue to monitor the situation and provide updates as they become available.

D&S Update: STEM OPT Regulation

What's Happening

Several months ago, in August of 2015, the United States District Court for the District of Columbia vacated the Department of Homeland Security's (DHS) 2008 Science, Technology, Engineering and Mathematics (STEM) optional practical training (OPT) interim final rule finding that DHS failed to comply with the Administrative Procedure Act (APA) because it lacked sufficient good cause to bypass the requirements of advance notice and an opportunity for public comment. The district court the Court suspended the ruling from taking effect until February 12, 2016, to permit DHS time to promulgate a new rule and avoid the disruptive effect of vacatur on STEM employers and STEM students.

In response to the district court's order, DHS proposed a revision on October 19, 2015, providing only a 30-day public comment period, which is close to the minimum amount of time permitted. Still, DHS received more than 50,700 comments during the public comment period and, as a result, on December 22, 2015, the Department of Justice (DOJ) asked the court to “extend the stay of vacatur for approximately ninety (90) days, through May 10, 2016, providing for approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community.” On December 24, 2015, the district court gave the plaintiffs until January 11, 2016, to respond to DHS' request for an extension. 

What this Means

While the expectation is that the request will be granted in an effort to avoid the serious adverse impact this would have on students and employers,  if the court does not grant DHS' extension request, the current rule would expire effective February 13, 2016. If that happens, DHS has suggested that the agency may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.   

D&S will continue to monitor this developing situation and provide updates as they become available.