If you’re reading this, you may already know about the WashTech decision issued in August 2015 (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0529-43) and what it is about – an effort to prevent foreign students from being able to take advantage of the additional 17 month extension on their Optional Practical Training (“OPT”) if their field of study falls into the STEM category (science, technology, engineering, or math). This extension was based on a rule issued by the Department of Homeland Security (“DHS”) in 2008 whereby it gave STEM students a maximum of 29 months of OPT after graduation.
In summary, the Court invalidated DHS’ 2008 OPT rule based on a procedural flaw in their rulemaking – they failed to provide the public with notice and an opportunity to comment in advance of issuing the rule, to which DHS responded that it was necessary for the economy and to allow prospective H-1B workers to transition into new employment without having to depart the U.S. Here are the important things you need to know about the Court’s decision and the future of OPT for STEM graduates:
1. The Court upheld DHS’s interpretation of the law as permitting post-graduate OPT in opposition of WashTech’s argument that OPT only serves to circumvent the rules regarding H-1Bs and valid employment. This means the Court agrees that a person in valid OPT status is authorized to work and that is not exclusive to an individual maintaining valid H-1B status only.
2. The Court also found that DHS has broad authority to interpret valid employment through which F-1 students are legally authorized to work and that DHS’ interpretation cannot be limited simply by an effort to promote the security of our country.
3. Most importantly, the Court stayed its order until February 12, 2016, to allow DHS to correct the procedural mistake made in 2008 and submit the rule for proper notice and comment. Further, the announcements made in November 2014, will likely supersede the 2008 rule by expanding and improving the terms of OPT.
In the end, WashTech’s efforts to eliminate the OPT 17 month extension for STEM students proved to be futile and only serve to allow DHS to correct their procedural errors back from 2008, while at the same time allowing time for the 2014 proposals to improve the OPT program for the benefit of foreign workers, our country’s economy and the quality of our workforce going into the future.
Please contact Danielle M. Claffey at 404.949.8151, or by email at [email protected] with any questions.
