This month, a federal district court in the District of Columbia invalidated a Department of Homeland Security rule that allowed F-1 visa STEM students to extend their 12 month OPT (optional practical training) periods to 29 months. In 2008, DHS announced that students with degrees and employment in the science, technology, engineering, and mathematics fields would have the opportunity to work for their employers for up to 29 months instead of 12 months. The employer had to be registered with a system called E-Verify. Many foreign student who study at United States colleges and universities are in the F-1 visa designation, which allows for 12 months of job training in addition to degree completion.

The district court struck down the rule on the ground that DHS did not allow for the mandatory notice and comment period. When a federal agency promulgates a regulation, it must have a period of notice and comment, where it allows the general public and interested parties to post comments on positive or negative aspects of the proposed rule. The agency is then supposed to take those comments into account in improving the rule before it is made official. The court ruled that because DHS did not take this step, the rule permitting the 17 months extension for STEM OPT students is temporarily invalid. The court has given DHS until February 12, 2016 to rectify its mistake by actually having the rule subject to proper notice and comment. The administrative record did not demonstrate a good cause for skipping the notice and comment period.

Washtech brought the suit against the Department of Homeland Security, and it argued various points to prevent foreign students from acquiring job experience on their F-1 visa. The court concluded that a “student” can still be someone who has completed an academic degree program., that post-graduate OPT experience is permissible, and that DHS has broadly delegated authority from Congress to establish the necessary rules for F-1 student employment.