The Federal District Court judge on Friday granted the Department of Homeland Security (DHS) an additional 90 days in which to issue a final rule on Optional Practical Training (OPT) extensions for STEM graduates. The decision on the government’s motion gives DHS until May 10, 2016, to issue a final rule.
The court had previously held that the 2008 DHS interim final rule extending the period of post-graduation OPT by 17 months for STEM students on F-1 visas was invalid because DHS promulgated the rule without notice and comment. The court found, however, that vacating the rule immediately would cause substantial hardship for F-1 STEM students and would create a major labor disruption for the technology sector. Therefore, the court vacated the 2008 rule and its subsequent amendments, but stayed that order until February 12, 2016, so that DHS could submit the rule for proper notice and comment. Had the court not extended this stay, thousands of STEM OPT participants could potentially have been left without work authorization or legal status.
The judge found that “extraordinary circumstances” warranted the grant of DHS’s motion. Specifically, the court noted the government’s receipt of an “unexpected and unprecedented” response to its draft rule published in the Federal Register on October 19, 2015. Federal rulemaking generally requires that any new rule undergo a period of public comment and review prior to publication. According to DHS, it received over 50,000 comments on the proposed rule, at least some of which led DHS to believe that revisions were necessary to the proposed rule.
It is now up to DHS to timely complete comments review and issue a rule within the time allotted because the judge emphasized that no additional requests for extensions will be entertained.