On August 12, 2015, in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015), Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia vacated the 2008 Department of Homeland Security (DHS) rule extending Optional Practical Training (OPT) for science, technology, engineering, and mathematics (STEM) students. The court found the rule to be deficient because it was not subjected to public notice and comment procedures as required by law, and no emergency exception applied to relieve it of that obligation. However, Judge Huvelle concluded that an immediate vacatur would be disruptive, and so stayed the vacatur until February 12, 2016, to allow DHS to submit the rule for proper notice and comment.
Most students on F-1 visas are permitted to work in the United States in their fields for one year, either while studying or just after graduating, under OPT. The DHS rule in question extended OPT by 17 months for those with degrees in designated STEM fields (and working with employers enrolled in E-Verify), allowing those students to work in the United States for up to 29 months. The rule was implemented to improve the economy and support STEM industries employing highly skilled workers.
It is hoped that the court’s decision will spur the White House to move forward with the OPT STEM regulations announced in the president’s executive order of November 2014. Given the impact on affected employers and students, immediate action is needed by DHS. With the current status of the H-1B program, the lack of extended OPT for STEM students would leave many companies without much-needed highly skilled workers.