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STEM OPT Work Permits at Risk

The U.S. District Court for the District of Columbia recently struck down a rule, enacted by the Department of Homeland Security (DHS) in April 2008 extending, for eligible science, technology, engineering, and mathematics (STEM) students, the duration of optional practical training (OPT) by 17 months. However, the court stayed that action until February 12, 2016, to avoid disruption and allow DHS to submit the rule for notice and comment.

The plaintiff, Washington Alliance of Technology Workers, a collective-bargaining organization that represents STEM workers, had challenged the interim rule. The complaint alleged, among other things, that the plaintiff’s members who had technology-related degrees in the computer programming field and had applied for STEM employment were in direct and current competition with OPT students on a STEM extension.

OPT allows a nonimmigrant foreign national on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. When DHS published the interim rule, the agency explained that OPT employees often are unable to obtain H-1B status within their authorized period of stay in F-1 status, including the 12-month OPT period, and thus are forced to leave the United States. “The inability of U.S. employers, in particular in the fields of science, technology, engineering and mathematics, to obtain H-1B status for highly skilled foreign students and foreign nonimmigrant workers has adversely affected the ability of U.S. employers to recruit and retain skilled workers and creates a competitive disadvantage for U.S. companies,” DHS said.

The court vacated the 17-month STEM extension described in the interim rule at 73 Fed. Reg. 18944 (Apr. 8, 2008), but stayed the vacatur until February 12, 2016, and remanded to DHS for further proceedings. The court concluded that immediate vacatur of the 2008 rule would be “seriously disruptive,” noting that in 2008, DHS estimated that there were approximately 70,000 F-1 students on OPT and that one-third had earned degrees in a STEM field. While DHS has not disclosed the number of people currently taking advantage of the OPT STEM extension, the court said it had no doubt that vacating the 2008 rule would force thousands of foreign students with work authorizations to scramble to depart the United States Vacating the 2008 rule could also impose a costly burden on the U.S. tech sector, the court noted, if thousands of young workers have to leave their jobs quickly. The court said it saw no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector. As such, the court ordered that the vacatur be stayed until February 12, 2016, “during which time DHS can submit the 2008 Rule for proper notice and comment.”

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