In 2014, the Washington Alliance of Technology Workers filed a lawsuit against the Department of Homeland Security (DHS) which claimed that DHS had overstepped their authority by implementing an interim rule in 2008 that expanded the OPT (optional practical training) program for students with STEM degrees who work for employers who are enrolled in E-Verify.

By Noelle McLaughlin

Background

In 2014, the Washington Alliance of Technology Workers filed a lawsuit against the Department of Homeland Security (DHS) which claimed that DHS had overstepped their authority by implementing an interim rule in 2008 that expanded the OPT (optional practical training) program for students with STEM degrees who work for employers who are enrolled in E-Verify . The suit raised concerns regarding lack of wage regulation, unfair job competition that negatively impacted qualified U.S. workers and allegations that the OPT rules were just a way to get around the H-1B quota requirements. Essentially the Alliance called for the court to do away with the OPT program and employment authorization for F-1 visa holders. The fate of the OPT program has been in question since this law suit was filed.

Recent Ruling

On August 12, 2015, the U.S. District Court held that there is ample support for employment for training purposes without requiring ongoing school enrollment. An earlier ruling in the case had also addressed the Washington Alliance of Technology Workers' challenges of the general OPT program and found them to be unsubstantiated as they did not identify any members of their association who were adversely effected in the ways described.

Despite these findings, the court did agree that DHS failed to satisfy procedural requirements by not subjecting the 2008 Interim Rule to a public notice and comment period. As such, the 2008 interim rule was vacated and DHS has been given until February 12, 2016 to correct this by proposing new rules and allowing the for proper notice-and-comment period.

What's Next?

If the DHS does not implement a new rule by this deadline, OPT/STEM authorizations will no longer be valid. If they implement a new rule by February 12, the program will continue though it may become more difficult to make expansions to the program in the future.

DHS is expected to publish a new rule in the federal register on Monday October 19th in which they are proposing to amend the F-1 nonimmigrant visa regulations on OPT for STEM students. This is expected to include a 24-month extension, specific “Cap-Gap” relief, and added safeguards to guard against adverse effects on U.S. workers.

Upon its publication, the public will be granted 30 days in which to submit comments on the proposal.