Court Rules 2008 OPT Extension as Invalid Temporarily
On August 12, 2015, the U.S District Court of Colombia ruled that USCIS’s 2008 OPT extension rule is invalid due to a lack of proper notice and comments. More specifically, Judge Huvelle believed that although the 2008 OPT extension rule had good cause to be published as a regulation, the DHS failed to carry out notice and comment required.
A collective bargaining organization for employees in the STEM (Science, Technology, Engineering, and Math) fields called the Washington Alliance of Technology Workers filed suit in 2014 challenging the Department of Homeland Security’s (DHS) 2008 OPT rule. Primarily, the 2008 rule allows F-1 students with degrees in the STEM (Science, Technology, Engineering or Math) fields who work for a verified employer to extend their work authorization. Washington Alliance of Technology Workers purport that this rule has cost their members to lose their jobs by allowing companies to hiring foreign nationals at a lower cost. Washington Alliance further argued the DHS did not have the authority to implement the 2008 OPT rule and that Congress was not aware of DHS’s view on F-1 visas. Judge Huvelledisagreed with many of Washington Alliance’s arguments but ruled that the 2008 OPT rule did not follow the proper and necessary procedures.
However, Judge Huvelle also recognized the consequences of vacating the 2008 rule immediately and has stayed the ruling until February 12, 2016. She stated, “The court sees no way of immediately restoring the re-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector.” Therefore, DHS has until February 12, 2016 to carry out the necessary and proper procedural steps to validate the 2008 rule.
The OPT 2008 rule has been widely used over the past 7 years by both companies and students alike to obtain employment and recruit some of the best talents. This ruling can adversely affect the STEM sectors and cause hardships for many students. However, the staying of the ruling to 2016 gives DHS time to address this situation.
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