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Court Ruling on DHS STEM OPT Extension Rule Expected Soon

A motion to dismiss a lawsuit challenging the U.S. Department of Homeland Security’s new rule governing the Science, Technology, Engineering, and Math (STEM) Optional Practical Training (OPT) program has been granted in part and denied in part. Washington Alliance of Technology Workers v. DHS, No. 1:16-cv-01170-RBW (D.D.C. Mar. 30, 2017). Judge Reggie B. Walton issued a brief order without any details, but explained the final order will be issued by April 30. We will report on the final order’s effect on the STEM OPT program when it is available.

The new rule extends to 24 months the time foreign students in F-1 status can work in the U.S. following completion of a STEM degree.

In August 2015, the court struck down the original rule allowing for extension of OPT work authorization for students on F-1 visas who have STEM degrees. The court found DHS unlawfully bypassed the notice-and-comment rulemaking process. However, the court paused the order to allow the agency to repair the administrative deficiency. On March 11, 2016, after a notice-and-comment period, the new STEM OPT rule went into effect. The new rule allows for a 24-month STEM OPT extension, seven months longer than the original rule.

The plaintiffs in the original suit, the Washington Alliance of Technology Workers, in June 2016 challenged the new rule and the DHS filed a motion to dismiss the suit.

Even if the new rule is upheld, the program could face other challenges. In a draft Executive Order that was leaked in January 2017, the Trump Administration stated it would like to “reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, restore the integrity of student visa programs, ensure compliance and improve monitoring of foreign students.”.  The STEM OPT rule was instituted by an Executive Order followed by rulemaking and could be “reformed” or eliminated by Executive Order followed by rulemaking – a process that could take as little as 30 days to complete. We will report on developments related to STEM OPT and other programs.

This post was written by Christopher Preston.

Jackson Lewis P.C. © 2017

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Working in tandem with our labor and employment attorneys, our Immigration team provides comprehensive services to address clients’ needs quickly and effectively in both the compliance and immigration benefits areas. We provide innovative and cost-effective immigration guidance to employers, including identifying creative visa options and strategies for the global migration of critical staff and hiring of foreign workers.

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