On January 23, 2016, the U.S. Distrcit Court for the Distrcit of Columbia granted Department of Homeland Security’s (DHS) motion for limited relief from the Court’s August 12, 2015 order. The Court has ordered that the vacatur of the 17-month STEM OPT extension be further extended to May 10, 2016. 

The OPT 17 month STEM extension rule enacted in 2008 was ruled deficient because DHS did not go through the proper notice and comment period before the rule went into effect. The Court vacated the rule, but ordered that the decision would not take effect until February 12, 2016. The court reasoned that this would give DHS enough time to try and rectify the situation by submitting the rule for the proper notice and comment. Now DHS has sought to extend the stay by 90 days to avoid a regulatory gap. The Court has granted DHS’s request. This means that DHS now has until May 10, 2016 to issue a final rule.

In its motion, DHS explained that it initially believed it could meet the Court’s deadline thereby avoiding a regulatory gap. However, DHS argued, that it received an ‘unexpected and unprecedented” public response – 50,500 comments, which is more than it received in response to its “next four most-commented- on DHS rules combined.’  DHS argued that the public comments received in response to DHS’s Notice of Proposed Rulemaking created “extraordinary circumstances” that would warrant modification of the Court’s previous order.

The Court agreed, stating that at the time of its initial ruling, it believed that DHS could get the job done in the 6 month period of stay. The Court said, “changed circumstanced have proven the assumptions underlying the stay’s length to be unrealistic, and thus ending the stay after only 6 months is no longer equitable.” The Court further reasoned that the same concerns and equities that warranted the stay in the first place still exist. Many STEM OPT participants would either lose their current work authorization, not be able to apply for the OPT extension, or not know whether they could benefit from the extension at a later time. Also, the Court did not underestimate the effect it would have on the tech sector if the stay was not extended. Not only would employees be lost, but foreign students may be turned off by U.S. educational institutions. Based on the foregoing, the Court concluded that the extension of stay is warranted. However, the Court did note that it will not be considering any additional requests for relief.

The Court made the right decision here. Many F-1 students who are currently on OPT have been left wondering how they are going to deal with this situation if they are no longer able to continue working. Hopefully we get some answers soon once the final rule is published. For now, we have a victory that will allow F-1 students to relax a bit.