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DHS to Pay $42,000 for Enacting Rule Extending OPT STEM in a Way that Violated the Administrative Procedures Act (APA)

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Wash. Alliance of Tech. Workers v. United States Dep’t of Homeland Sec., 2016 U.S. Dist. LEXIS 103900

On August 8, a U.S. district court judge awarded the Washington Alliance of Technology Workers (WashTech) $42,000 in attorneys’ fees and litigation costs in their suit against the Department of Homeland Security (DHS). WashTech had sued DHS over the unlawfulness of the Optional Practical Training (OPT) program and the 2008 DHS rule that extended the maximum OPT period from twelve to twenty-nine months for participants with degrees in Science Math Engineering Technology (STEM). It also attacked DHS’s decision to bypass the notice and comment period required by law in 2008 when it extended the OPT program by 17 months for foreign nationals with STEM degrees. The federal judge rejected WashTech’s claim that DHS had exceeded its authority in issuing the 2008 rule but agreed that DHS had bypassed the notice and comment period and therefore vacated the 2008 STEM OPT expansion. However, the judge gave DHS time to implement a new rule, which was implemented before WashTech was able to appeal. Because the cancellation of the 2008 STEM OPT rule meant the court found DHS had violated the Administrative Procedures Act (APA), on August 8, the U.S. district judge also required DHS to pay $42,000 for what she called a “marginal victory.”

Implications:

  • The Administrative implication is that the courts tend to uphold the seemingly overreaching apparatus of executive agencies as long as these agencies follow the rules outlined in the APA.
  • With regard to immigration, the desire of DHS to grant an extended time period for prior F-1 students to stay and work in the country while they apply for the H-1B lottery reflects (1) the needs the tech industry has for immigrants with Science Technology Engineering Math degrees and (2) that it is becoming more difficult in recent years for an candidate to be selected in the H-1B Cap lottery. It is clear that immigration options for specialized workers will be a subject of debate in the near future as many are calling for more restrictions to the H-1B visa or to the STEM extensions as a part of OPT programs.

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