A Washington DC Federal court has held that DHS improperly promulgated the 2008 regulations creating the 17-month OPT CAP GAP extension for STEM graduates (strictly speaking, this is not reallly "CAP GAP" issue). According to the court, DHS should have placed the proposed regulation before the public, allowed everyone to comment, considered the comments and then published the final regulation. Thus, DHS violated the procedural mandate requiring "notice and comment." According to the court, there was no good reason to skip the "notice and comment" mandate.
The program has been "canceled," but the cancellation will not become effective until 13 February 2016. DHS, therefore, has until 12 February 2016 to "redo" the regulations with proper opprtunity for notice and comment. There is every likelihood that DHS will be able to do just that. We shall wait, watch and keep you updated.
The court said:
Court concludes that immediate vacatur of the 2008 Rule would be seriously disruptive. In 2008, DHS estimated that there were approximately 70,000 F-1 students on OPT and that one-third had earned degrees in a STEM field. 2008 Rule at 18,950. While DHS has not disclosed the number of aliens currently taking advantage of the OPT STEM extension, the Court has no doubt that vacating the 2008 Rule would force “thousands of foreign students with work authorizations . . . to scramble to depart the United States.” (Def.’s Opp. at 44.) Vacating the 2008 Rule could also impose a costly burden on the U.S. tech sector if thousands of young workers had to leave their jobs in short order. 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. 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.14 The stay will last until February 12, 2016, during which time DHS can submit the 2008 Rule for proper notice and comment.
14 August 2014
There was a question on LinkedIn whether we need to stop applying for the 17-month extension. The answer is: absolutely not. Keep applying. You will be approved until February 2016 rolls around. If USCIS has done nothing to make their regulations compliant with the necessary procedures, only then we need to worry.
Add new comment