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The Washington Alliance of Technology Workers (WashTech) filed a response on Jan. 11, 2016, in opposition to the Department of Homeland Security’s (DHS’s) request to extend the deadline to implement the STEM OPT rule from Feb. 12, 2016, to May 10, 2016. DHS requested additional time to finalize the STEM OPT interim rule  after receiving more than 50,000 public comments on the proposed rule. This request would allow for  “30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community.”

As previously reported here, DHS’s proposed rule is in response to a decision of the U.S. District Court for the District of Columbia in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security invalidating USCIS’s 2008 17-month OPT extension rule. The court delayed the effectiveness of its decision to invalidate the rule by six months to give DHS time to issue notice and comment rulemaking. As we also discussed here, the new rule could have a significant impact on both employers and students in the business immigration community.

WashTech’s most recent response asserts that the District Court does not have the authority to grant more time to DHS to finalize the rule without consent from the Court of Appeals.  WashTech also asserts that DHS’s failure to put in place a final rule before vacatur of the 2008 OPT Rule goes into effect is not an extraordinary circumstance because the failure is due to DHS’s  own “horribly bad strategic choices.” Finally, WashTech urges the court to allow the appeal to proceed “without further meandering and delay.”

In the meantime, the current STEM OPT regulation remains in place and we will provide further details of the case as it progresses.

You can read the full DHS proposed STEM OPT rule in the Federal Register.