DC District Court vacates Rule allowing 17-month STEM OPT Extension, provides time for DHS to rectify
The US District Court for the District of Columbia has held that the 2008 DHS final interim rule extending OPT period by 17 months for graduates in STEM programs is invalid because DHS promulgated the rule without proper notice and comment. Starting 2008, DHS has allowed F-1 students graduating from bachelor’s, master’s, or doctoral degree in science, technology, engineering or mathematics (STEM) to apply for a one-time, 17-month extension of his or her OPT while in a period of post-completion OPT. Washington Alliance of Technology Workers, a collective-bargaining organization that represents science, technology, engineering, and mathematics (“STEM”) workers sued DHS over this rule. While ruling on motions for summary judgement by the Alliance and DHS, the District Court held that the rule is invalid because DHS did not follow proper rulemaking process with regards to notice and comment. The Court did not accept the argument of DHS that there was good cause to show that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. Therefore, the Court decided to vacate the rule providing for OPT extension to STEM graduates. However, the Court concluded that immediate vacatur of the 2008 Rule would be seriously disruptive for both the students and the tech sector. Hence, the court has stayed the vacatur until February 12, 2016 during which time DHS can submit the 2008 Rule for proper notice and comment. Based on the order, the current rule will be in effect till February 12, 2016 and then will stand vacated. Before February 12, 2016, DHS is expected to go through the proper rule making process and publish a final rule providing for the OPT extension. If DHS acts within reasonable timelines in the rule making process, we expect the OPT STEM extension program to continue without any disruption. Please contact Sikal & Associates for more details.