News Release from Jewell Stewart & Pratt PC Summary
On January 23, 2016, the federal district court in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 1:14-CV-00529 (ESH), Document 51 (D. D.C. January 23, 2016), granted a motion by the U.S. Department of Homeland Security to postpone the effective date of the court’s vacatur of DHS’s 2008 STEM OPT regulation from February 12, 2016 until May 10, 2016. In effect, this leaves existing grants of STEM OPT in place until May 10, 2016, and allows DHS temporarily (until May 10, 2016) to continue accepting STEM OPT applications under its 2008 rules. In the meantime, DHS is expected to review the ~50,500 comments it received in response to the proposed replacement regulation it published in October 2015 and to adopt a final rule governing STEM OPT.
F-1 foreign student visas have long included an opportunity for college and university students to receive up to 12 months of work authorization called “optional practical training” (OPT), which could be used after graduation, in which case it is called post-completion OPT. Graduates working for U.S. employers pursuant to F-1 OPT often are sponsored by their employers for H-1B visas, which permit long-term, regular employment within qualifying occupations. The number of new H-1Bs that can be approved each year is limited by statute, and Congress has not changed the limit since 2004.
Due to overwhelming demand in 2008, the annual statutory cap on new H-1B visas (the “H-1B cap”) was reached on the first day that petitions for such visas could be submitted, prompting the U.S. Department of Homeland Security (DHS) to publish a regulation that, among other things, created a “STEM extension” to OPT – an extra 17 months of OPT work authorization for qualifying F-1s whose initial 12-month period of OPT was based on a degree in a STEM field (Science, Technology, Engineering, Math). DHS published its 2008 regulation as an “Interim Final Rule,” effective upon publication. Since then, qualifying F-1 students with STEM degrees have applied to DHS and been granted 17-month STEM OPT extensions, bringing their total OPT work authorization to 29 months.
In 2014, the Washington Alliance of Technology Workers (WashTech), a technology workers union, filed suit against DHS, challenging OPT in general, as well as STEM extensions. Most of WashTech’s claims were dismissed by the court, but the claim that DHS’s 2008 regulation failed to comply with the Administrative Procedures Act (APA) was successful. On August 12, 2015, the court ruled that DHS lacked justification in 2008 to dispense with the APA’s usual notice-and-comment requirement, i.e., the requirement that the public be given advance notice and an opportunity to comment on new regulations. Accordingly, the court issued a vacatur of (i.e. vacated) the 2008 regulatory provisions creating STEM OPT. To avoid disruption and hardship, however, the court stayed (postponed) the effective date of the vacatur until February 12, 2016, expecting that the six-month delay would give DHS time to introduce new regulations compliant with the APA.
DHS introduced a proposed regulation on STEM OPT on October 19, 2015, with a 30-day public comment period. The proposed regulation differs from the 2008 regulation, and DHS received ~50,500 comments. The proposal would make STEM OPT extensions available to more F-1 students and lengthen the STEM OPT extension from 17 months to 24 months. It would also impose requirements on employers to provide detailed training plans for STEM OPT employees, to make attestations regarding employee compensation and layoffs, and to submit to compliance reporting and auditing. (The proposed rule also reaffirms “cap-gap” work authorization for certain individuals with a gap between their F-1 status and an awaited change-of-status to H-1B. The “cap-gap” provisions of DHS’s 2008 regulation were not included in the federal court’s vacatur in the WashTech case.)
Based on the unexpectedly large number of comments DHS received in response to its proposed rule, it asked the WashTech court to postpone the effective date of its vacatur until May 10, 2016. On January 23, 2016, the court granted DHS’s motion.
We will be providing further information on the WashTech litigation and DHS regulatory actions as it becomes available.
© Jewell Stewart & Pratt PC 2016