No New OPT Rule in Today's Federal Register

By John Miano on December 14, 2015

We previously reported that the DHS regulations allowing non-student graduates to work on student visas for 29 to 35 months on student visas under the Optional Practical Training program (OPT) were vacated by the U.S. District Court in D.C. vacated for DHS's failure to give notice and comment. DHS crafted these regulations secretly, in cahoots with industry lobbyists, as a means to circumvent the H-1B visa quotas. Nonetheless, the District Court delayed vacating the rule for six months (until February 12, 2016) to give DHS time to do something to lessen the impact.

Rather than reexamine the wisdom of allowing non-students to work on student visas for years, DHS decided to use this grace period to double down and put in place a new rule to allow these aliens to work even longer. DHS tried to correct the defect of the original, secret rule-making by going through the motions and giving a sham notice and comment where the agency had already decided (and announced) the outcome in advance.

The hope among supporters of this misguided policy was that the new rule would be in place by February 12 so that the extended work period could continue seamlessly.

That ain't happening folks.

A major regulation must be published in the Federal Register 60 days before it goes into effect. Today is the day and no regulation has been published.

Ironically, supporters of the regulation undermined DHS's efforts here. The purpose of a comment period is to allow the public to raise issues with proposed regulations. DHS has to respond to the comments made during the comment period. Apparently foreign students were led to believe that the comment period is a vote. (In fact, the agency has to evaluate the merits of each issue raised and cannot consider the volume of comments on either side.) DHS was bombarded with useless comments like "I vote to increase the stem Extention (sic) time period," with titles like "Mass Mail Campaign 28". DHS received over 43,000 comments on this proposed rule. By spamming DHS with comments, people claiming to be foreign students simply created more work for DHS by forcing the agency to wade through a larger volume of comments.

DHS still has to respond to the comments and produce a final regulation. The regulation then has to be approved by the Office of Management and Budget. Finally, it has to be published in the Federal Register to go into effect 60 days later.

In theory, DHS could go to the U.S. Court of Appeals for the District of Columbia Circuit (which now has jurisdiction over the case) and move for another delay of vacatur. The Court's granting of such a delay is not certain, especially because the question of whether DHS failed to give notice and comment is not on appeal. Such a motion would be particularly amusing because DHS would have to explain how its mulligan comment period actually allowed the public to influence the decision on whether non-student aliens could work on student visas for more than a year.

Hopefully, this whole process will be rendered moot in a few months. The question of whether DHS has the authority to allow non-students to work on student visas at all is before the D.C. Circuit Court. That round kicks off on December 21.

In the meantime, the ending of OPT extensions on February 12 has not been disturbed by new rule-making. Plan accordingly.