Judge Ellen Segal Huvelle ruled that an extension of the OPT in 2008, adding a 17-month extension for eligible STEM graduates to the existing 12 months’ post study work allowance, was issued without appropriate public notice or comment.
“The court will order that the 2008 Rule — and its subsequent amendments — be vacated, but it will order that the vacatur be stayed”
The 2008 regulations also meant that students studying on an F-1 (student) visa could stay in the country for 60 days post-graduation to apply for OPT, which has also been curtailed under the ruling.
However, the decision will not come into effect until February 2016. Segal Huvelle said that abolishing the rule immediately would cause “thousands of foreign students with work authorisations to scramble”.
“The court sees no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labour disruption for the technology sector,” she said.
“As such, the court will order that the 2008 Rule — and its subsequent amendments — be vacated, but it will order that the vacatur be stayed.”
The DHS now has until February to submit the rules of the programme for public comment.
Some educators are concerned that the ruling may make the US less competitive as a global study destination. Heather Stewart, counsel and director of immigration policy at NAFSA, called the court decision “just another consequence of the unpredictable and broken US immigration system, which is already a deterrent to prospective international students”.
“The experiential learning opportunity that is optional practical training is highly valued by international students and plays an important role in providing a full educational experience,” she told The PIE News.
The case was brought by the Washington Alliance of Technology Workers, which sued the DHS, claiming that the regulation poses a threat to American jobs.
“The experiential learning opportunity that is optional practical training is highly valued by international students and plays an important role in providing a full educational experience”
“American workers and the public at large were given no notice that the regulations were even being considered until DHS dropped them fait accompli without notice and comment,” said John Miano, the attorney representing the union.
The extension was originally brought in along with a raft of measures to make the US a more appealing study destination for STEM subjects in 2008, amid concerns that a shortage of STEM graduates might put the national economy at risk.
“The Bush administration hastily implemented this extension in an attempt to address the H-1B [skilled worker visa] shortage and lack of green cards, after failed congressional attempts to pass immigration reform,” explained Stewart at NAFSA, saying that this has put pressure on OPT to act as a temporary status until students can find another legal path to stay in the US.
NAFSA is “hopeful that DHS will be able to complete the rulemaking process” to enable foreign students on STEM OPT to stay in the country, she said, but added that the power to implement reform ultimately lies with Congress.
“It is long past time for the US Congress to pass immigration reform to fix our broken pipeline of talent and meet the educational, economic, and security needs of our nation,” she said.
“Having the opportunity to stay for a substantial period of optional practical training certainly adds to America’s competitive advantage in attracting such students, and also benefits the companies and labs which host them,” added Peggy Blumenthal, senior counselor to the president at the Institute of International Education, told The PIE News.