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I-9 E-Verify Immigration Compliance

OPT STEM Regulation Survives in Lawsuit

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By Bruce Buchanan, Sebelist Buchanan Law PLLC

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A federal judge has ruled for the Department of Homeland Security (DHS) in a lawsuit concerning the promulgation of a 2016 regulation extending Optional Practical Training (OPT) by an additional 24 months for eligible STEM (science, technology, engineering and mathematics) degree holders. (Washington All. of Tech. Workers v. Dept. of Homeland Sec. (D.D.C. Apr. 19, 2017)).

The Washington Alliance of Technology Workers argued the 2016 regulation exceeded the authority of DHS under several provisions of the Immigration and Nationality Act (INA). Specifically, the Alliance asserted the regulation allows employers to skirt the H-1B temporary visa program for high-skilled workers without providing labor protections for U.S. workers.

The judge decided the Alliance, which represents U.S. workers who are STEM degree holders, did not show that the DHS had violated the INA in the promulgation of the regulation or the substance of the regulation.

Despite this favorable ruling in litigation, on a case that has been in the courts for many years, OPT STEM faces uncertainty as to whether the Trump administration will attempt to eliminate or curtail it. Under last week’s “Buy American and Hire American” executive order, the Secretary of DHS “shall propose new rules and issue new guidance… to protect the interests of United States workers.” Since this language is so broad, Secretary of DHS may propose new rules for OPT STEM. Only time will tell so stay tuned.

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