BU ISSO and students await court decision on the STEM OPT program

in STEM OPT rule
January 22nd, 2016

Boston University continues to closely follow the court case brought against U.S. Department of Homeland Security (DHS) by the Washington Alliance of Technology Workers (WashTech), which could eliminate or expand the STEM OPT program.

At the current time, no decision has been made on whether to grant a temporary extension of the STEM OPT program beyond the vacatur date of February 12, 2016. If the court does not grant DHS’ motion to extend the stay of vacatur, the current 17-month STEM OPT rule would expire effective February 13, 2016.

For F-1 students currently approved for STEM OPT, please be aware that STEM OPT employment authorization might be terminated effective February 13, 2016, unless the court grants further relief to students already approved for STEM OPT.

For F-1 students with pending applications for STEM OPT extensions, DHS suggested that if the vacatur is not extended, it may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.

BU students with questions about their case, may contact the ISSO for further guidance. We will be updating student clients as soon as further decisions are made by the court on this important matter.

A summary of recent developments is as follows:

  • October 19, 2015 – DHS published the much-anticipated proposed STEM OPT rule, allowing a 30 day period for public comment.

  • November 18, 2015 – As the end of the 30-day public comment period, DHS had received over 50,000 comments to the proposed rule.

  • December 22, 2015 – DHS filed a motion to extend the stay on the court’s original vacatur order for the current STEM OPT rule, asking that the court allow the current 17-month STEM OPT rule to continue for an additional 90 days, until May 10, 2016. The additional time would be used to complete rulemaking and “train agency personnel and coordinate with the regulated community.”

  • January 11, 2016 – The Washington Alliance of Technology Workers (WashTech) filed a response to DHS’s December 22, 2015 motion, arguing that the District Court should not grant the extension until May 10, 2016 that DHS requested in its motion.

  • January 14, 2016 – DHS filed a response brief to WashTech’s January 11, 2016 response, arguing that the district court does have jurisdiction to extend its stay of vacatur through May 10, 2016, and asking the court to reject WashTech’s opposition brief.

    In addition, DHS made the following important request in its brief: “In the event the Court denies DHS’s Rule 60(b)(6) motion, the agency respectfully requests that the Court clarify that its vacatur will not affect the legal status of F-1 students holding unexpired employment authorization documents (“EADs”) granted under the 2008 STEM OPT Extension rule, and their dependents. Such an order of clarification is appropriate in light of the interests of many F-1 students, their schools, and their employers, and would help DHS ensure that it is in full compliance with the Court’s order. Moreover, it will assist interested parties greatly as this case continues to move forward.” DHS also asked the district court to issue a decision on its motion to extend the vacatur date “as expeditiously as possible.

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