Update – Federal Court Stay Extended for Optional Practical Training

Good news for businesses employing foreign national students pursuant to Optional Practical Training! The federal court stay granted last month has been extended from February 12, 2016 until May 10, 2016, allowing certain benefits described below to continue.

As background, on August 12, 2015, the federal court in the case of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security [U.S. District Court for the District of Columbia, Case No. 1:14-cv-00529, filed on March 28, 2014] decided that the Department of Homeland Security (DHS) failed to comply with administrative law when it issued a rule in 2008 permitting extensions of Optional Practical Training for students holding U.S. degrees in one of the STEM (Science, Technology, Engineering, Mathematics) disciplines and working for employers registered with the voluntary federal employment verification program known as e-Verify. In the decision, the court granted DHS until February 12, 2016 to act as it should have done in 2008 by providing notice and inviting public comment through the federal rulemaking process. The court's decision was based only on this procedural deficiency and not on DHS's authority to issue such a rule. On August 18, 2015, however, the plaintiff appealed the court's decision to challenge DHS's authority to issue such a rule.

By granting the stay, students remained able to continue to apply for and use any of the benefits allowed under the 2008 rule until February 12, 2016. These benefits include the following:

1. 17-month STEM OPT extensions;
2. Automatic cap-gap extensions; and
3. Another period of standard OPT after moving to a higher educational level.

DHS quickly published a replacement rule (requesting comments) to cure the procedural deficiencies of the 2008 rule and to implement President Obama's executive action to expand STEM OPT. In response to the rule publication, DHS received an unprecedented number of over 50,500 comments.

On December 22, 2016, DHS asked the federal court to extend the stay on STEM OPT from February 12, 2016 until May 10, 2016. DHS based its request on extraordinary circumstances, claiming the need for additional time to review and respond to the comments received and develop guidance and train officers in the new STEM OPT program requirements, as well as provide training aids and material for foreign students, U.S. schools and U.S. employers. Plaintiffs filed a response earlier this month arguing against the request; however, the court sided with DHS granting its motion to continue the stay until May 10, 2016.

Stay tuned for further updates on the progress of the replacement rule and feel free to contact me with questions as to how this may impact your employees.