May 26, 2020

May 26, 2020

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Challenge to DHS Authority to Issue STEM OPT Extension Rule May Proceed, Court Rules

The plaintiffs may continue their challenge to the DHS’ authority to establish both STEM Optional Practical Training (OPT) and standard post-completion OPT, the District Court in Washington Alliance of Technology Workers v. DHS held on July 1, 2019.

The Washington Alliance of Technology Workers (WashTech) has been fighting for practical training for students on various grounds for a decade.  At first, the challenge came down to a procedural issue over the fact that STEM OPT had been enacted without “proper” notice and comment.  The government conducted a notice and comment period and then reissued the rule, making that case moot.  In 2016, the case was refiled.  By 2018, the case was in U.S. Court of Appeals for the District of Columbia Circuit.  The Circuit Court remanded the case.

In the latest iteration of the case, the judge, over the objection of WashTech and the government, also allowed several groups to intervene, including the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council.  These are groups that support OPT and STEM OPT and believe that they “cannot count on DHS to defend a regulatory program that plans to reconsider.”

The WashTech plaintiffs argue that DHS went beyond the legislative mandate when it extended student status and created training programs — thereby harming U.S. workers.  The Trump Administration has hinted repeatedly that it is interested in reforming these training programs.  That has not yet come to pass.  Instead, the Administration is simply making it more difficult for students to remain in the United States by instituting new requirements for off-site training programs, making it more likely that foreign students will fall out of status and become subject to bars to admission to the United States.

Perhaps the U.S. Supreme Court’s Kisor decision will affect how this case (and others) is ultimately adjudicated. Kisor directed that the courts may no longer give so much deference to agencies.

We will continue to follow this litigation and any regulatory or legislative actions that may affect OPT or STEM OPT. 

Jackson Lewis P.C. © 2020


About this Author

Otieno B. Ombok, Jackson Lewis, I9 Compliance Lawyer, immigrant visa petitions Attorney

Otieno B. Ombok is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Mr. Ombok specializes in all aspects of employment-based non-immigration and immigrant visa petitions. He also advises on I-9 compliance issues as well as outbound immigration matters. He has a natural facility in addressing client issues such advises both U.S. and foreign employers with regard to immigration matters. He has a natural facility in addressing client issues pertaining to healthcare visas for medical professionals,...