The U.S. District Court for the District of Columbia held that a 2008 DHS interim final rule extending the period of post-graduation optional practical training (OPT) by 17 months for STEM students on F-1 visas was invalid because DHS promulgated the rule without notice and comment. Post-graduation OPT allows nonimmigrant foreign nationals on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. The court found, however, that vacating the rule immediately would cause substantial hardship for F-1 STEM students and would create a major labor disruption for the technology sector. As such, the court ordered that the 2008 rule and its subsequent amendments be vacated, but that the vacatur be stayed until February 12, 2016, during which time DHS may submit the rule for proper notice and comment.
The plaintiffs are a collective-bargaining organization that represents science, technology, engineering, and mathematics (STEM) workers. The rule in question was issued by DHS on April 8, 2008 – H-1B filing season – without notice and public comment. In describing the purpose of the interim rule, DHS explained that “the H-1B category is greatly oversubscribed and as a consequence, 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 country.” DHS also noted that the inability of U.S. employers, in particular in the STEM fields, to obtain H-1B status for much needed highly skilled foreign workers had adversely affected the ability of U.S. employers to recruit and retain skilled workers. Such a loss of skilled workers, DHS said, created a competitive disadvantage for U.S. companies. The agency concluded that the rule would “quickly ameliorate some of the adverse impacts on the U.S. economy” by potentially adding “tens of thousands of OPT workers . . . in STEM occupations in the U.S. economy.” On several occasions, the agency modified, without notice and comment, the list of disciplines that qualify for the STEM extension via memos and updates to its website.
While it is unlikely that DHS will eliminate 17-month STEM OPT for eligible students when it conducts formal rulemaking, it is likely to review the program and make changes consistent with President Obama’s November executive action on immigration. In fact, the agency already announced plans to expand the degree programs eligible for OPT STEM and to review more generally the length of time foreign graduates can work in the U.S. in OPT status.