Judge Invalidates Component of Foreign Student Work Program

August 17, 2015

A federal judge's ruling last week invalidated the 17-month extension for postgraduation work training for international students in the science, technology, engineering and mathematics (STEM) fields, but stayed the decision until February to give the U.S. Department of Homeland Security (DHS) time to submit the rules for the program for public comment.

In her ruling for the U.S. District Court for the District of Columbia, Judge Ellen Segal Huvelle determined that the original 2008 rule to extend the duration of the optional practical training (OPT) program for STEM students from 12 to 29 months was issued without appropriate public notice and comment.

In opting to invalidate the rule while imposing a six-month stay to give the agency time to address the problem, Judge Huvelle noted that vacating the 2008 rule would cause “substantial hardship” for thousands of international students who would have to leave the United States in short order, in addition to causing “major labor disruption” for technology-related industries.

The suit against the OPT program was brought by the Washington Alliance of Technology Workers, which argues that the OPT program generates unfair competition by creating a cheaper category of workers.

A DHS spokeswoman declined to answer specific questions about the agency’s plans for submitting a rule for public comment and the potential impact on international students who are taking advantage of the OPT STEM extension. “[U.S. Immigration and Customs Enforcement] is currently reviewing the ruling and cannot comment on the details of the decision,” said Sarah Rodriguez, a DHS spokeswoman.

Last week’s decision invalidating the 17-month OPT extension for STEM students comes at a time when the Obama administration has signaled intentions to further “expand and extend” the use of the OPT program.

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