Court Delays STEM OPT Ruling, Preserving Current STEM OPT Program

February 15, 2016

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

The U.S. District Court for the District of Columbia has accepted the Department of Homeland Security’s (DHS) request to modify the court’s stay of its ruling that the agency invalidly issued its 2008 rule on STEM OPT (optional practical training for students in science, technology, engineering and mathematics). The court modified the stay to give DHS an additional 90 days, until May 10, 2016, to re-issue the STEM OPT rule using valid notice-and-comment procedures.

DHS issued a proposed rule on October 19, 2015, and received more than 50,000 comments. The agency persuaded the court that it was working diligently to evaluate those comments and promulgate a final rule, but was unable to do so in time for a new rule to be effective by the February 12, 2016, deadline. The court modified its order to leave the current STEM OPT rule in effect until the new May 10, 2016, deadline.

DHS argued that it needed only the 90 day extension and that it would be able to publish the final rule in time to meet that deadline. The court said it would grant no further extensions.

The plaintiff, Washington Alliance of Technology Workers, said it planned to appeal the extension. The D.C. court’s opinion from January 23, 2016, is here. Its opinion from August 12, 2015, is here