Shockingly in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security, U.S. District Judge Ellen Segal Huvelle invalidated USCIS’s 2008 17-month Optional Practical Training (“OPT”) extension rule. The case, decided on August 12, comes as a huge blow for U.S. businesses, especially in the tech fields, who depend upon the talent pool afforded by the F-1 visa program. What follows is an overview of the F-1 program, optional practical training, and the damaging effects the Washington Alliance case will have on U.S. businesses.
Pursuant to the Immigration and Nationality Act (“INA”), foreign nationals are permitted to enter the U.S. temporarily for the purposes of pursing a full course of study at an established academic institution in nonimmigrant status known as F-1. For nearly 70 years, the Department of Homeland Security (“DHS”) and its predecessor, Immigration and Naturalization Services, have permitted these F-1 students to engage in employment for practical training purposes. Prior to 2008, F-1 students were authorized for up to 12 months of OPT as long as it was completed within 14 months of completing the course of study. In April 2008, DHS issued an interim final rule that extended OPT for F-1 students with a qualifying degree in science, technology, engineering, or mathematics (“STEM”). The purpose for extending OPT was to allow U.S. employers to recruit and retain these highly skilled foreign students who would otherwise be forced to leave the country to work for competitors.
In striking down the 17-month Optional Practical Training (“OPT”) extension rule, Judge Huvelle held that DHS failed to show it faced an emergency situation in 2008 that would allow it to bypass the notice and comment period required by the Administrative Procedure Act. While Judge Huvelle’s affords little consideration for how this decision will affect U.S. employers and the economy, she does note that “immediate vacatur of the 2008 Rule would be seriously disruptive” and “would force ‘thousands of foreign students with work authorizations . . . to scramble to depart the United States.’” For this reason, Judge Huvelle stayed her decision until February 12, 2016.
To overcome this decision, the Department of Homeland Security must pass a new rule consistent with the APA’s notice and comment requirements.