Update on STEM OPT Extension Lawsuit

The Washington Alliance of Technology Workers (WashTech) continues its lawsuit in an attempt to end STEM OPT. On Feb. 4 WashTech sought review of the Aug. 12 order from U.S. District Judge Ellen Segal Huvelle, which vacated the 2008 rule extending the OPT period for foreign students with science- and math-related (STEM) degrees by 17 months, but allowed the U.S. Department of Homeland Security to reissue the regulation through the notice and comment process.

DHS last month said the district court shouldn’t have even reached the merits of the dispute, contending that WashTech doesn’t have legal standing because it hasn’t shown its members were harmed by the rule. WashTech counters that its standing is based on a group of American computer professionals are challenging regulations designed to create a “significant expansion” of foreign workers in their field of employment.

In its current appeal, Judge Huvelle found the group didn’t have standing to challenge that aspect of the program, as its members hadn’t alleged injuries earlier than 2008. She also found the claims were barred by the statute of limitations. WashTech “has not identified a single member demonstrating ongoing or imminent competitive injury caused by the existence of the pre-or-post 2008 version of the OPT rule,” it wrote. “The absence of such evidence means no Washtech member is ‘a direct and current competitor whose bottom line may be adversely affected by the challenged government action.’”

WashTech is grasping at straws as its one argument of merit, that the original 2008 rule was procedurally deficient, will be overcome once the new proposed STEM rule completes its notice and comment period. The new rule is expected to be published in the federal register on or before May 10, 2016.

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