"A D.C. federal judge on Wednesday said a 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.
U.S. District Judge Ellen Segal Huvelle rejected the DHS' argument that The
Washington Alliance of Technology Workers, which challenged the rule, lacks
“zone of interest” standing, and she found that the agency had failed to
carry its burden to show it faced an emergency situation that exempted it
from subjecting the 2008 rule to notice and comment, saying failure to
provide it was a serious procedural deficiency that weighed in favor of
vacating the rule on remand.
The judge did, however, note that an immediate vacatur of the rule would be
“seriously disruptive” and stayed the vacatur until Feb. 12, 2016, during
which time DHS can submit the rule for proper notice and comment, she said.
The DHS estimated in 2008 that there were about 70,000 F-1 visa students on
optional practical training, or OPT, and that one-third had earned degrees
in a science, technology, engineering and math, or STEM, field, according to
Judge Huvelle. And while the agency had not disclosed the current number of
immigrants taking advantage of the extension, she had no doubt that
vacating the rule would force “thousands of foreign students with work
authorizations to scramble” to leave the country, she added, citing DHS’
opposition brief.
“The court sees no way of immediately restoring the pre-2008 status quo
without causing substantial hardship for foreign students and a major labor
disruption for the technology sector,” the judge said. “As such, the court
will order that the 2008 Rule — and its subsequent amendments — be
vacated, but it will order that the vacatur be stayed.”
Judge Huvelle did, however, disagree with the union’s argument there was
not enough evidence to show that Congress was aware of DHS’ interpretation
of F-1, saying in light of Congress’ broad delegation of authority to the
agency to regulate the duration of a nonimmigrant’s stay and Congress’
acquiescence in DHS’ long-standing reading of F-1, the DHS’ interpretation
was not unreasonable.
WashTech's complaint claims that the 2008 OPT rule exceeded the DHS’
statutory authority and that the rule was implemented arbitrarily and
capriciously. The union, which sought to void the 2008 rule, claims the OPT
regulations were created to go around the caps on H-1B visas by allowing
foreign STEM workers who might be denied an H-1B to work through an F-1 visa
instead.
In November, Judge Huvelle threw out WashTech’s challenge against the 12-
month OPT program as it existed before 2008, but she kept alive the union's
challenge to the 17-month extension for STEM students.
Both sides had moved for judgment on various claims, with WashTech seeking
to ax the 2008 OPT rule, arguing that the department's OPT rule-making is “
an administrative process run amok.” The judge granted in part and denied
in part on Wednesday the summary judgment bids of both parties.
The DHS, however, has argued that it had good cause to publish the
regulation as an emergency rule because of an urgent situation wherein
thousands of highly skilled individuals educated at U.S. colleges and
universities would otherwise have been forced to leave this country.
Further, the 2008 rule reasonably interpreted the “broad statutory terms”
undergirding the foreign student program, the DHS said.
The plaintiff is represented by John M. Miano, Dale L. Wilcox and Michael M.
Hethmon of the Immigration Reform Law Institute.
The government is represented by Benjamin C. Mizer, Leon Fresco and Geoffrey
Forney of the U.S. Department of Justice.
The case is Washington Alliance of Technology Workers v. U.S. Department of
Homeland Security, case number 1:14-cv-00529, in the U.S. District Court for
the District of Columbia."
