D.C. Circuit Court Dismisses Appeal Challenging 2008 STEM OPT Rule

Three days after a replacement STEM Optional Practical Training (OPT) program went into effect, the D.C. Circuit Court of Appeals dismissed a federal lawsuit by a technology worker’s union that sought to contest the validity of the prior STEM OPT program. In its decision, which was issued today, the court explained that the plaintiff’s challenges were moot as the contested 2008 program has been replaced with the 2016 rule.

Today’s decision is the latest development in Washington Alliance of Technology Workers v. DHS (WashTech). In August 2015, the United States District Court for the District of Columbia ruled that the Department of Homeland Security (DHS) had the authority to create the STEM OPT program, but failed to meet its notice and comment obligations when it published the original regulation in 2008. The district court vacated the 2008 regulation, but stayed its ruling in order to give DHS time to meets its rulemaking obligations and minimize hardship to F-1 students and employers. DHS complied with the court’s decision by proposing a new rule and subjecting it to the appropriate notice and comment period. The new rule became effective on May 10, 2016.

The appellate court’s decision will ensure the ongoing viability of the STEM OPT program. Fragomen continues to follow this litigation as well as the implementation of the new STEM OPT regulation, and will issue further alerts if new information becomes available.

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