OPT extension rule challenged in court

On May 29, 2008, a conglomerate of anti-H1B organizations including the Immigration Reform Law Institute, The Programmers Guild and a few other groups, filed a lawsuit in the U.S District court in Newark, NJ challenging the authority of the DHS in creating a rule such as the OPT extension rule. The lawsuit is urging the court to declare the DHS regulation unlawful.
The DHS OPT extension rule implemented just before the H1-B season this year, allows F1 students with degrees in Mathematics, Engineering, Science or Technology and currently working under the Optional Practical Training program to extend their tenure from 12 months to 29 months, allowing them to maintain F1 status until their H-1Bs are processed and the work start date of October 1st is reached.

Legal Background

Three organizations and nine individual plaintiffs are seeking three reliefs:
1. Declaratory Judgment,
2. Permanent and Temporary Injunction, and
3. Mandamus relief.

The suit advances three cause of action:

(1) The OPT extension contradicts the F-1 Student Visa rules which doesn’t allow for a 29-month guest worker program for STEM while on this visa status. The lawsuit argues that the DHS has exceeded its statutory jurisdiction and authority the implementation of this rule (Violation of 5 USC Section 706(2)(C))

(2) The provisions of the OPT extension are not legal and as such is deemed an arbitrary, capricious, an abuse of discretion 9Violation of 5 USC Section 706(2)(A)

(3) The waiver of public notice and comment period as mandated under APA are not justified (Violation of 5 USC Section 706(2)(D).

The lawsuit has based on cause of action for the violation of Administrative Procedure Act (APA), for allowing the rules to be enacted without the mandatory 30 to 90 days given for public comment. DHS on the other hand had also cited the Administrative Procedure Act, which allows the agency to dispense with the notice period and public commenting procedure, when an agency, for good cause, finds that those procedures are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(B). The

DHS had stated that the haste was necessary as “this rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” and “By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens.”
The plaintiffs are asking the court to declare that the OPT extension rule unlawful, the implementation of this rule as a violation of federal law and to issue a preliminary and perhaps a permanent injunction against the DHS from implementing or enforcing this rule.

Political Background

This is more of a politically significant lawsuit, as it is the first time a direct challenge has been made to Bush Administration’s latest efforts to fix the H1-B quota crisis. The DHS OPT extension rule was proposed after the department received a joint letter from 20 U.S. Senators in November, 2008 urging the agency to act on it. On the legislative level, the Senate could have made the OPT extension possible by passing Senator Coleman’s Action Act, S. 2653, which is currently pending. The catch? This bill, along with the OPT extension, also proposes to reinstate the visa revalidation program, which unfortunately is not favored by the above mentioned senators.

The anti-H1B conglomerate has termed the move as simply a way around the H1-B cap and that the “’fix” has no actual legal basis and has been pushed forward as most of the immigration-related legislations are currently grounded in the pre-election atmosphere. The conglomerate has named a few other such “illegal” rules, the 3-year TN visa proposal being one of them. This can turn out to be a very significant lawsuit, both politically and for the immigration sphere as well.