Latest News about OPT STEM Litigation

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United States District Court Judge Ellen Huevelle has granted the Department of Homeland Security (DHS) extension of STEM OPT until May 10 of this year.

This is certainly good news for all F-1 international students who are currently studying and residing in the United States.

Under Rule 60 (B), the district court is given discretion to relieve parties from conclusive orders due to particular reasons or cause that validates relief. These include the following: None of the cited arguments for relief are appropriate; the motion was put into effect within a realistic time-frame; and, the requested reprieve is substantiated by exceptional circumstances beyond the petitioner’s control.

The Notice of Appeal is within the Court of Appeals’ jurisdiction while the district court relinquishes its control over portions of the case implicated in said petition. The court should determine if consideration of this “stay extension” will lead to turmoil and inefficiency. Changed conditions prove assumptions essential to the stay’s duration are impractical. Thus, ending the deferment after six months is not reasonable. Unnecessary hardship for STEM OPT members as well as employers is the same.

There are around 23, 000 participants in STEM OPT with 8, 000 applications awaiting approval and another 434, 000 international students qualified for authorization. Many will be affected if this stay is not extended. On the other hand, the technology sector can lose workers while educational institutions in the US will lose their appeal to foreign students.

The fact that the Department failed to implement corrective measures in the past to anticipate the court ruling last year prohibits it from respite. The court ruled there is no merit in the argument that changes suggested by DHS or ambiguity changes have caused disqualify the Agency from the relief it was seeking.

Petitioner pointed out both parties will go back to court even if the motion of DHS was granted because of the replacement rule. The court does not have many reasons to doubt said claim but this rule can only be disputed in future proceedings. The district court has to protect decisiveness of its judgments but it presumed the limited amendment was necessary.

Some of the queries of students include an initial OPT that was about to expire before May 10. Will the student be allowed to file for an extension of 17 months? The answer is yes. If the OPT expires between today and May 10, it is possible to file the extension as soon as possible under the 2008 rule.

Another is an OPT expiring on or right after May 11. Is a 17-month extension applicable? The answer is most probably yes. There are two options. Foreign students can file for extension and probably be given the 17-month term covered by the new ruling. Once this is in place, the students concerned can apply for the other seven months to earn the full 24 months. This will also reveal how the Department of Homeland Safety will cope with the in-between situation.

Marian Moore – Social Media Manager

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