DHS reformulated the F-1 STEM optional practical training (OPT) benefit, with the publication of the “24-month STEM OPT Rule” 81 FR 13039] that became effective on May 10, 2016. The Washington Alliance of Technology Workers (WashTech) filed suit against both the 24-month STEM OPT rule and the standard 12-month post-completion OPT rule, in the U.S. District Court for the District of Columbia. This page summarizes the progress of this litigation.
OPT and CPT Resume Blast to over 1500+ Companies
In a July 1, 2019 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 INS 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, and that the WashTech plaintiffs can challenge DHS’s underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well. In its decision, the Court did not determine that DHS does not have such authority, but rather that it will consider the parties’ arguments for and against that authority.
In a June 8, 2018 decision on WashTech’s appeal of the district court’s dismissal of its claims, the appeals court reversed the district court’s dismissal of Count II of WashTech’s complaint, which asserted that DHS did not have the statutory authority to promulgate the 2016 STEM OPT rule. The appeals court did not render an opinion on the issue itself, but rather found that the basis for the district court’s dismissal of that claim was insufficient. And so, the appeals court remanded that issue back to the district court, which must now revisit the assertion that DHS lacks the statutory authority to establish any optional practical training benefit beyond the standard 12-month benefit.
WashTech appealed the district court’s April 19, 2017 dismissal of its claims, to the U.S. Court of Appeals for the District of Columbia Circuit (appeals court).
On April 19, 2017, the Washington D.C. District Court dismissed WashTech’s June 17, 2016 suit against regular and 24-month STEM OPT. In its final order and opinion dismissing the case, the Court found that:
- WashTech did not have standing to sue on their claim against the 1992 regular 12-month OPT rule,
- WashTech did have standing to sue on their claim against the 2016 24-month STEM OPT rule, but,
- WashTech failed to adequately state a claim on which relief could be granted against the 2016 24-month STEM OPT rule
On March 30, 2017, the Washington D.C. District Court issued an order “granting in part and denying in part” the Government’s August 29, 2016 Motion to Dismiss WashTech’s suit for lack of subject matter jurisdiction and failure to state a claim. The Court stated in its order that it will set forth its reasons in a Memorandum Opinion “to be issued by the Court within the next thirty days, absent extraordinary circumstances.” The Court will issue a final Order at the same time it issues its Memorandum Opinion. No further details regarding the order are available.
On March 6, 2017, the status conference on WashTech’s June 17, 2016 lawsuit was rescheduled for April 10, 2017. The status conference was originally scheduled for December 12, 2016, was then delayed until March 9, 2017, and now has been further continued until April 10, 2017, “In light of the Court still seeking to resolve the pending motion in this case.”
Between August 29, 2016 to September 16, 2016, the parties to WashTech’s June 17, 2016 lawsuit filed the following: On August 29, 2016, DHS filed a motion to dismiss WashTech’s suit for lack of subject matter jurisdiction and failure to state a claim (read DHS’ memorandum in support of their motion); On September 9, 2016, WashTech filed a response to DHS’ motion (read WashTech’s reponse); on September 16, 2016, DHS filed a response to WashTech’s response (read DHS’ response).
On August 8, 2016, the U.S. District Court judge that heard WashTech’s original complaint filed against the 2008 17-month STEM OPT rule (the rule that was vacated effective May 10, 2016), granted in part a WashTech motion for attorney fees from that litigation. WashTech had asked for $465,002.62 from DHS, the court awarded them $42,239.59. Read the court’s opinion.
On June 17, 2016, WashTech filed a new lawsuit with the U.S. District Court for the District of Columbia (district court), this time against the 2016 STEM OPT rule. The new filing, which was expected by DHS, raises many of the same substantive issues brought up in the original lawsuit, but now in the context of the 2016 STEM OPT rule rather than the 2008 rule. It also raises new procedural claims. Read WashTech’s complaint. In a July 13, 2016 status conference, the judge set a due date of August 26, 2016 for motions from DHS, a due date of September 9, 2016 for WashTech responses to any motions filed by DHS, and a due date of September 16, 2016 for DHS to reply to WashTech’s responses. The next status conference is set for March 9, 2017 at 10:00 AM in Courtroom 16 before Judge Reggie B. Walton (this status conference had originally been scheduled for December 12, 2016 at 09:15 AM, but on 12/8/16 it was rescheduled to 3/9/17).
On May 13, 2016, the D.C. Circuit Court of Appeals dismissed WashTech’s appeal of the District Court’s August, 2015 decision on the 2008 STEM OPT rule as moot. And so that suit, originally filed in 2014, came to a close except for a subsequent determination of attorney fees
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