The federal judge who ruled DHS’s original F-1 STEM OPT regulations invalid has now granted DHS’s motion to extend the program until May 10, while the agency follows the required procedures to publish new regulations extending the program. As we previously reported, the F-1 STEM OPT program extends the period of post-graduation optional practical training (“OPT”) by 17 months for STEM students on F-1 visas. The Court held that DHS created the rule without the notice and comment period by the Administrative Procedures Act (APA), and ordered the rule invalidated unless DHS republished the rule following APA-mandated “notice-and-comment” procedures. After seeing that DHS had initiated the proper regulatory procedures in October, federal district court Judge Ellen Huvelle agreed to a further 90-day stay of her earlier order terminating the STEM OPT program, declaring:
[T]he equities that warranted a stay in the first place—undue hardship to STEM OPT participants and employers—remain the same. The significance of that hardship cannot be overstated. According to DHS, there are approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations. …. If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorization, not being able to apply for the OPT extension, or not knowing whether they will be able to benefit from the extension in the future. And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students. The Court does not doubt that U.S. tech workers might feel some adverse effect from a ninety-day extension, but it has not been provided with any reliable data to support this proposition, and thus, it finds that the balance of equities clearly weighs in favor of an extension. Therefore, the limited relief sought by DHS is warranted under Rule 60(b)(6).
Based on DHS’s current progress with the new STEM OPT regulation, and their extension motion having now been granted, we predict that the F-1 STEM OPT program will continue to survive and thrive. Once final regulations are published later this year, the F-1 STEM OPT program will continue unhindered, perhaps in expanded form. Jackson & Hertogs will provide updates as news develops.
