According to the Administrative Procedure Act (APA), the regulatory action must go through a specific procedure in order to become final. This is precisely what did not occur with the existing, or prior, STEM OPT Extension rule(depending upon how you look at it), which the court in Washington Alliance of Technology Workers struck down on August 12, 2015. Under the APA, a federal agency that intends to create a new rule under its authority must propose the rule, request public comment, collect the comments, and then publish a final rules that accounts for all comments made. The agency, however, is not required to incorporate any of the comments into the final rule. By operation of law, it does have to provide a reasoned explanation for the choices made when finalizing the rule.)
For the rule that will become the new STEM OPT Extension Rule, the timeline and procedures are getting tight. To illustrate, we will start with the effective date of the Court’s ruling in Washington Alliance, February 12, 2016. First, there is a mandatory 60-day abeyance, or hold, between publication of the final rule and date upon which the rule can take effect because the rule is considered a “significant rule” under Executive Order 12866. Thus, for the STEM OPT Rule to take effect on February 12, 2016, the final rule must be published no later than December 14, 2015, or exactly 60 days prior.
Prior to publishing a final rule, however, a proposed rule must be published for public comment and the rulemaking agency must have adequate time to review and incorporate or reject the comments. The APA recommends 60 days for comment and revision, but only mandates that 30 days be provided for the public comment portion. Calculating backward using the APA’s recommended timeframe, the Department of Homeland Security should publish its proposed STEM OPT Extension replacement rule to the Federal Register by October 15, 2015. Failing to do so would place tremendous pressure on the agency to complete the revision process in less than 30 days or to allow the current STEM OPT Extension program lapse.
However, it is unlikely for a lapse to occur. Several variables are in play to prevent such a detrimental event from occurring. First, the Washington Alliance decision is on appeal and cannot take effect until the appeal has been resolved. Secondly, DHS would likely expedite this rule, given the great harm it would have on U.S. business and the economy, not to mention foreign-national students. Third, DHS would definitely want to avoid the nightmare it would face in re-processing ever I-20 and employment authorization document due to expiration of the rule. Finally, the President could by executive action toll the period between the two rules, thereby preventing expiration.