Published on    14 August 2015     Hits: 1196

On August 12, 2015, the U.S. District Court for the District of Colombia invalidated USCIS’s 2008 17-month Optional Practical Training (OPT) extension rule with 6 months stay. (Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security).

In invalidating the rule based on a procedural deficiency, the Court agreed with the tech workers union that the STEM OPT extension regulation should have been preceded by a notice and comment period, rather than being given immediate effect. The 2008 rule had three main benefits: 1/ OPT STEM extension; 2/ automatic H-1B “cap gap” protection; 3/ Ability to apply for OPT during the 60-day period after graduation. All of those benefits will be eliminated on February 12, 2016 unless the USDHS passes a new rule properly. This means F-1 STEM work authorizations will stop being valid on February 12, 2016. This will affect F-1 students who currently hold STEM OPT, individuals who would be eligible for STEM OPT, and employer who hire employees with STEM OPT. Judy Chang Law firm believes that not only an immediate response is required by the USDHS but also a comprehensive immigration reform must pass. Congressional failure to act has resulted in the USDHS taking action via interim rules and policy memos. Such patchwork approach to immigration is causing substantial hardship for foreign students and a major labor disruption for the technology sector. We will closely monitor and provide further information as to new legal development so that both employers and F-1 students may be able to find solutions.