Decision Against Extension of F1 17 Months OPT – Wash. Alliance of Techn. Workers v DHS

Washington Alliance of Technology Workers v. U.S. Dept. of Homeland Security

Plaintiff, Washington Alliance of Technology Workers (WATW), a collective-bargaining organization that represents science, technology, engineering, and mathematics (STEM), sued the Department of Homeland Security, challenging an interim final rule, promulgated by defendant DHS in April 2008, extending, for eligible STEM students, the duration of optional practical training (“OPT”), which allows nonimmigrant foreign nationals on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. At present, students may engage in OPT “after completion of the course of study, or, for a student in a bachelor’s, master’s, or doctoral degree program, after completion of all course requirements for the degree.” 8 C.F.R. § 214.2(f)(10)(ii)(A)(3). The employment must be “directly related to the student’s major area of study.” Id. § 214.2(f)(10)(ii)(A). Prior to 2008, a student could obtain authorization for only one year of post-education, practical training, which had to be completed within a 14 month period following the completion of their education.

In April 2008, DHS issued the interim rule at issue, which extended the period of OPT by 17 months for F-1 nonimmigrants with a qualifying STEM degree, so that STEM students can work under OPT for a maximum of 29 months.

Plaintiff filed suit on March 28, 2014, alleging the following improprieties: “In Counts I-III, plaintiff alleges that the OPT program exceeds DHS’s statutory authority and conflicts with other statutory requirements, including the labor certifications related to H-1B visas. In Count IV, plaintiff argues that DHS acted arbitrarily and capriciously in promulgating the 2008 Rule. In Count V, plaintiff argues that DHS lacked good cause to waive the notice and comment requirement in promulgating the rule. In Count VI, plaintiff contends that DHS’s reference to an external website to list the STEM courses of study violates the relevant rules on incorporation by reference. In Counts VIIVIII, plaintiff claims that DHS improperly failed to allow for notice and comment before issuing the 2011 and 2012 modifications of the list of STEM disciplines. And in Count IX, plaintiff argues that the 2008 Rule and the subsequent 2011 and 2012 modifications exceeded DHS’s statutory authority.”

The U.S. District Court for the District of Columbia dismissed Counts I-III on the ground that “the Complaint does not identify a single WATW member who has suffered an injury as a result of the twelve-month OPT program.” That is, no WATM had standing to challenge DHS’ authority regarding counts I through III. The court ruled in the alternative that Counts I-III were barred by APA’s six-year statute of limitations. The court ruled, however, that the plaintiffs had sufficient standing for the remaining allegations.

Plaintiff’s broad assertion is that the defendant, DHS used the F-1 nonimmigrant category to circumvent the restrictions Congress placed on H-1B visas. Thereby, plaintiff argues that defendant violated a number of statutes. The complaint alleges that the 2008 Rule “is in direct conflict with the statutory requirements of 8 U.S.C. § 1101(a)(15)(F)(i) that aliens on student visa[s] be bona fide students.” It further alleges that the 2008 Rule violates 8 U.S.C. § 1184(a), a general directive that, according to plaintiff, “requires DHS to ensure aliens on student visas leave the country when they are no longer students.” Finally, the complaint alleges that the “OPT regulations are in conflict with the statutory requirements for foreign labor under 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n), [and] 1184(g)” because they “deliberately circumvent the statutory caps on H-1B visas” and “authorize aliens to perform labor without complying with and in violation of the labor certification and prevailing wage requirements of the H-1B program.” Thus, the plaintiffs assert that DHS’ interpretation of F-1 indirectly violates other limitations set forth by Congress, notably those related to H-1B visas.

Ultimately, the Court rejected DHS’ argument that it had good cause to publish the regulation in 2008 as an emergency rule because thousands of highly skilled individuals educated at U.S. colleges and universities would otherwise have been forced to leave the U.S.  The Court ruled that the 2008 Department of Homeland Security rule that allows certain F-1 visa students with math and science-related degrees to have an additional 17 months of training in the U.S. is deficient because it wasn’t subjected to public notice and comment, but she allowed it to stay in place temporarily.