By: Bruce Buchanan, Sebelist Buchanan Law

OPT STEM Regulation Again Survives in Lawsuit

The Washington D.C. District Court has again ruled for the Department of Homeland Security (DHS) in a lawsuit concerning the promulgation of a 2016 regulation extending Optional Practical Training (OPT) by an additional 24 months for eligible STEM (science, technology, engineering and mathematics) degree holders. (Washington All. of Tech. Workers v. Dept. of Homeland Sec. (D.D.C. Nov. 30, 2020)). The judge decided Washington Alliance of Technology Workers (WashTech), which represents U.S. workers who are STEM degree holders, did not show that the DHS had violated the Immigration and Nationality Act (INA) in the promulgation of the regulation or the substance of the regulation.

WashTech argued the 2016 regulation exceeded the authority of DHS under several provisions of the INA because the regulation allows employers to skirt the H-1B temporary visa program for high-skilled workers without providing labor protections for U.S. workers.

In the way of background, on June 17, 2016, WashTech filed suit in the U.S. District Court for the District of Columbia against the 2016 24-month STEM OPT, raising many of the same substantive issues WashTech had brought up in the suit they filed against the 2008 17-month STEM OPT rule. On April 19, 2017, the U.S. District Court for the District of Columbia dismissed the lawsuit. WashTech appealed the District Court's dismissal of its claims and on June 8, 2018, the U.S. Court of Appeals for the District of Columbia Circuit reversed and remanded concerning WashTech's assertion that DHS did not have the statutory authority to promulgate the 2016 STEM OPT rule. The appeals court did not render an opinion on the issue itself, but rather found that the basis for the district court's dismissal of that claim was insufficient.

If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.