In an opinion dated August 12, 2015, the U.S. District Court for the District of Columbia vacated the Department of Homeland Security’s 2008 rule which extended the post-graduation optional practical training (OPT) by 17 months for eligible STEM students on F-1 visas. The rationale was that DHS did not follow the normal rulemaking process which includes public comment period. The court, however, ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process.
Reasons for Striking Down the 2008 17-Month STEM OPT Extension Rule
The main reason behind vacating the 2008 rule, according to the court, is that DHS did not follow the normal rulemaking process which includes notice of the proposed rule and a comment period for the public to comment on the proposed regulation. There are exceptions to the rulemaking process which allow agencies to implement rules without having to follow this process; however, the court took the position that none of the emergency rulemaking exceptions applies to the 17-month STEM OPT rule from 2008. As a result, the court took the position that the rule was improperly implemented and should be vacated.
Vacatur Stayed Until February 12, 2016
Having vacated the rule, the court then agreed to put a temporary stay on the vacatur in order to avoid chaos (our words, not the court’s) which would inevitably ensue if all of the thousands of F-1 STEM OPT holders find themselves with invalid work permit. To avoid a situation where thousands of recent F-1 STEM graduates will be left without work authorization (and possibly without status) and to avoid putting an undue burden on the employers who employ such workers, the court agreed to stay the vacatur until February 12, 2016, or six months from the date of the court order.
By leaving the rule in place until February 12, 2016, the court also intended to give DHS sufficient (but not too much) time to follow the normal public notice and comment rulemaking process.
The Rulemaking Process
At this time it may be helpful to remind our readers about the normal rulemaking process DHS will have to follow in order to reinstate the 17-month STEM OPT rule.
First, DHS will have to publish the proposed rule for the public to review for a specific period of time and during which period the public will have an opportunity to provide comments to DHS regarding the proposed rule. After the comment period ends, DHS will review and consider comments made by the public and consider whether to change the proposed rules in any way. Only once the final rule has been released and published by DHS would the rule become final and effective.
As a result of this rulemaking process, it may be months before the proposed rule would go into effect. We do not know yet if DHS will submit the 17-month STEM OPT extension rule for public comment with any changes from their current form; it is likely that due to the limited time before February 12, 2016, DHS is not likely to amend the current rule substantially before they publish for public comment.
Are Current STEM OPT Holders Affected?
Certainly, they are affected in the sense that the government is about to engage in a process which may affect the STEM OPT program. At this time, immediately after the court order, and at least until February 12, 2016, the STEM OPT work permits should remain valid and unaffected by this court order.
Similarly, we expect that USCIS will continue to process and approve 17-month F-1 STEM OPT extensions over the next six months as the rule continues to technically continue to be valid.
The main question is what happens over the next several months and whether DHS will be able to implement the new rule without any gap on and after February 12, 2016. Ideally, DHS will be able to implement replacement rules (with same or similar substance) by February 12, 2016 and avoid any gaps in employment authorization or status to the thousands of F-1 STEM OPT workers.
However, it is not clear what would happen to the current F-1 STEM OPT workers if the rule is vacated on February 12, 2016 but the replacement rules are not effective at that time. We will certainly monitor developments and clarifications on this topic (which are sure to be coming) over the next weeks and months and share with our clients and readers.
Is the H-4 EAD Rule in Jeopardy as a Result of This Court Order?
We do not believe that this court order vacating the 2008 17-month STEM OPT rule suggests that the H-4 EAD rule challenge will be successful on the same reason. The H-4 EAD rule, unlike the STEM OPT rule, did follow the normal rulemaking process. The H-4 EAD challenge is still in its early procedural stages so we do not know what may happen in the future, but for now, the H-4 EAD rule remains unaffected by this court order vacating the STEM OPT rule due to rulemaking irregularities.
We understand that many F-1 STEM OPT holders may be alarmed by this court order. At this time, we hope and believe that DHS will be able to follow the normal rulemaking process and “fix” the rule in time by February 12, 2016. We expect that there will be a number of updates, clarifications and guidance on this topic over the next weeks and months and we will certainly monitor, share and analyze and such updated and developments.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with F-1 STEM OPT or related matters.