Chamber Of Commerce Files Motion To Intervene, DHS Seeks To Have Case Dismissed In Ongoing STEM OPT Litigation

Chamber of Commerce Files Motion to Intervene, DHS Seeks to Have Case Dismissed in Ongoing STEM OPT Litigation

You may remember that the 2016 OPT STEM extension rule that created the 24-month extension is still under fire in court. Oral Argument in the appeal was held back in February 2018. This summer the Appeals court affirmed (ie agreed with) the lower court’s dismissal of Counts I, III, and IV but reversed the dismissal of Count II and the case is now back in district court for further review of Count II.

Washtech’s sole remaining claim is that the Immigration and Nationality Act’s F-1 visa provision authorizes the admission of “students”; nonimmigrants who work under the OPT program
are not “students” under the statute; and the regulation authorizing nonimmigrants to work under the OPT program is therefore in excess of statutory authority. The Appeals court instructed the district court first to determine whether Washtech can actually challenge the Department of Homeland Security’s authority to grant OPT. A 1992 regulation first provided for the OPT program, so if Washtech’s claim is that OPT, in general, exceeds the authority given to DHS by the statute, the current claim would be too late and the lower court could dismiss it again. But, if the 2016 STEM OPT regulation “reopened” the issue of whether OPT is authorized by the statute, then Washtech’s challenge would not be too late and the case could finally move forward on the merits.

Yesterday, DHS filed a Motion to Dismiss the case. DHS argues that the 2016 regulation did not reopen the discussion of whether OPT should be allowed. DHS’ stance is that Washtech is essentially time-barred because it’s claim should have been brought within 6 years of the 1992 regulation.

In addition, the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council requested to intervene in the case. The members of these three groups include many companies—large and small—that depend on the OPT program as an essential source for the highly specialized employees that they need to compete in a global economy. They claim that if the OPT program were invalidated, these members would lose thousands of employees, and their pipelines for new talent would be choked off. They argue that they have a legally protectable interest in the subject matter of the lawsuit and that they cannot count on DHS to defend a regulatory program that it plans to reconsider.

A little history on the STEM OPT litigation:

Back in August 2015, a D.C. federal judge said the 2008 Department of Homeland Security rule that allows STEM graduates in F-1 status to obtain an additional 17 months of OPT time in the U.S. was deficient. The decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security was based on the fact that DHS did not go through the usual notice and comment period required for new regulations. Immigrationgirl.com readers know that the judge vacated the 2008 rule allowing the 17-month extension, HOWEVER, a stay was put in place until a new regulation could be put in place. That new regulation took effect on May 10, 2016 and allows a new STEM OPT extension of 24-months. The same group of tech workers that challenged the old STEM OPT rule filed a new lawsuit in June 2016 in federal court again challenging DHS policy allowing student visa holders to work after completion of their studies.
This new lawsuit brought by the Washington Alliance of Technology Workers argues that the Optional Practical Training (OPT) program denies labor protections to US tech workers, allows increased competition, allows unfair competition, provides foreign students the benefit of mentoring programs (i.e. the I-983 training plan) without requiring schools to give the same benefit to US workers, and violates procedural rights of US workers by failing to include the question of whether OPT should be expanded in the first place in the regulatory process. Washtech asked the court to issue a declaratory judgement (find in their favor without going through an entire trial) that DHS exceeded its authority by allowing F-1 students the ability to work, vacate the new regulations, and award attorneys fees to Washtech.
The Department of Homeland Security responded to this lawsuit with a Motion to Dismiss (this occurred during the Obama administration), arguing that Washtech does not have standing because they could not prove that any injury was caused by the 2016 Rule or the old 1992 Rule. DHS argued that Washtech’s case relies entirely on cookie-cutter allegations they previously raised when they challenge the 2008 Rule and Washtech’s challenge to the 1992 Rule should be time-barred.
The court dismissed the lawsuit, Washtech appealed.
The appeal’s court dismissed all parts of the appeal except one, that one count was remanded back down to the district court.
That leads us to today, where DHS now filed a motion to dismiss the one remaining count on the grounds that it is time-barred and three groups requested to intervene in the lawsuit.

As of now, the Trump administration continues to defend the 2016 OPT STEM rule.

Remember, lawsuits take months, even years to wind their way through the courts. It will be some time before the district court takes any action on the case. Expect briefs from Washtech in opposition to both the Motion to Intervene and the Motion to Dismiss. Then it will be in the district court’s hand to decide whether to dismiss the case or proceed with a determination on whether the OPT program is exceeds the authority of DHS set by Congress.