New Court Decision on STEM OPT WashTech Litigation

The Department of Homeland Security (DHS) reformulated the F-1 STEM optional practical training (OPT) benefit, with the "24-month STEM OPT Rule" [81 FR 13039] that became effective on May 10, 2016. The Washington Alliance of Technology Workers union (WashTech) filed suit in the U.S. District Court for the District of Columbia against both the 2016 24-month STEM OPT rule and the standard 12-month post-completion OPT rule, raising many of the same substantive issues WashTech had brought up in the suit they filed against the 2008 17-month STEM OPT rule.

In a July 1 decision, the U.S. District Court for the District of Columbia found that DHS's 2016 STEM OPT rulemaking also had the legal effect of reopening the legacy United States Immigration and Naturalization Service's 12-month post-completion OPT regulation that had been finalized in 1992. This means that the Court no longer considers a challenge to DHS's statutory authority to implement standard post-completion OPT to be outside the statute of limitations. Additionally, the WashTech plaintiffs can challenge DHS's underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well.

On July 22, 2019, the Government answered the WashTech Complaint, and asked the Court to dismiss the case. If WashTech prevails however, STEM OPT as well as OPT are in danger.  Iandoli Desai & Cronin will continue to monitor the lawsuit and provide updates as they become available.