By Bruce Buchanan, Siskind Susser PC

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A U.S. District Court Judge for the District of Colombia invalidated USCIS’s 17-month Optional Practical Training (OPT) extension rule for STEM recipients in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security. The Judge found the Department of Homeland Security (DHS) did not have good cause to publish the OPT extension regulation in 2008 as an emergency rule; thus, it was not exempted the notice and comment requirement. Luckily for employers and STEM (Science, Technology, Engineering or Math) recipients under OPT, the Judge stayed her decision, meaning it will not go into effect until February 12, 2016.

In 2008, DHS implemented this rule to allow F-1 students with degrees in certain STEM fields to extend their OPT work authorization period by 17 months after an initial 12-month period as long as the employers were enrolled in E-Verify. The rule also provided for significant H-1B cap gap protections.

The Judge stayed her decision because the immediate impact “would force ‘thousands of foreign students with work authorizations . . . to scramble to depart the United States” and there is “no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor distribution for the technology sector.”

Unless USCIS issues a new OPT STEM extension rule via notice-and-comment rulemaking by February 12, 2016, the Judge’s decision will go into effect, eliminating the benefits of the 2008 rule. However, DHS has the opportunity to publish the substance of the 2008 rule through the rulemaking process, which allows for a 90-day comment period before the rule can be re-authorized. This must be done as soon as possible in order to beat the February 12, 2016 deadline.