The Court Stays the Vacatur of the 17-Month STEM Rule!


On Friday, January 23, 2016, the Court in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security granted DHS’s motion for limited relief to stay the vacatur of the 17-month STEM OPT extension until May 10, 2016. The majority of the Court’s opinion deals with the legal procedures the Court had to satisfy before rendering its decision. Without delving into the specifics of legal jurisprudence, the Court ultimately decided that it had jurisdiction to render a decision on the motion, that the motion was timely filed, and that it qualified under the “catch-all” provision of Rule 60(b), which is a request for relief when extraordinary circumstances require such relief.

The Court then reasoned that events subsequent to the Court’s initial stay have “proven the Court’s timetable for re-promulgation to be overly optimistic, thus warranting an extension.” In plain English, the Court realized the time allotted to implement a new rule, complying with the notice and comment requirements, was not sufficient. At the same time, the reason for the stay remains – undue hardship to STEM OPT participants and employers should the rule lapse. In fact, the Court stated “The significance of that hardship cannot be overstated. According to DHS, there are approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations.”

In determining to grant DHS’s motion to extend the stay until May 10, 2016, the Court reasoned that “If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorization, not being able to apply for the OPT extension, or not knowing whether they will be able to benefit from the extension in the future. And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students.” Therefore, F-1 Students can breath a little easier now that the 17-Month Rule will remain in effect until the 24-Month Rule has adequate time to take effect.

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