The OPT Case: What's Next?

By John Miano on January 19, 2016

I last reported on the status of the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security STEM OPT case here. On August 12, 2015, the D.C. District vacated the regulations put in place under Bush that were designed to circumvent the H-1B quotas by allowing aliens to work on student visas instead, but stayed the vacatur until February 12, 2016, so that aliens working on STEM OPT extensions would not have to immediately leave the country.

Both parties have taken the case to the next step on two fronts, battling in parallel.

First, the D.C. District held that the STEM OPT program was within DHS authority. Washtech appealed the District Court's holding that the STEM OPT program was within DHS authority to the D.C. Circuit back in August. So now the case is in the D.C. Circuit in the briefing processes before oral arguments and a decision. DHS is scheduled to file a response on January 20 as the next step in that process, but has filed an unopposed motion for an extension until January 27 that will likely be granted.

If Washtech is successful on appeal, DHS would not be able to put in place a regulation to replace the one being vacated. In addition, the entire OPT program would likely go away.

Second, DHS used the six-month grace period the court gave it to try to put in place a new regulation by February 12 to replace the one being vacated. The agency published a proposed regulation, but was not able to get a final regulation in place by February 12.

As I described previously, DHS made a motion in the D.C. District for relief from judgment to try to extend the original stay until DHS can ram through a new regulation. DHS has filed their reply to their motion for relief from judgment in the STEM OPT case, so what happens now?

That's actually a bit complex. In order to prevent chaos, only one court at a time can have jurisdiction over a case. Right now, the court with jurisdiction is the D.C. Circuit.

Because there are situations where the district court might need to do things with a case (as here, where DHS wants the judgment modified), there is a rule that governs the process.

That is Rule 62.1. That rule gives the district court four options (stated as three in the rule). The district court may:

  1. Defer (do nothing for now); or
  2. Deny the motion; or
  3. Make an indicative opinion that it would have granted the motion if the court had jurisdiction; or
  4. Make an opinion that the motion raises substantive issues.

Notice that granting DHS's motion is not one of the options (for those of you who follow websites where the author said they expected the motion to be granted). This is why I could say that the chance of the motion being granted was the same as the Cowboys making the Super Bowl.

So now we have to wait for an opinion from the D.C. District. That could take any amount of time: days, weeks, or even months. It is all up to the judge.

If the District Court does No. 1 or No. 2, nothing changes and STEM OPT extensions end on February 12. If the District Court does No. 3 or No. 4 before February 12, things get a bit complicated.

In the latter case DHS can then notify the D.C. Circuit of the opinion and then file a motion with the D.C. Circuit asking them to remand the case back to the D.C. District. In other words, DHS would ask for the appeal to be suspended while the D.C. District takes another crack at the case.

Such a motion could take a couple of weeks for briefing. Then a judge in the D.C. Circuit would have to make an opinion. Again, that could take any amount of time. If the D.C. Circuit denies the motion or does not act by February 12, the STEM OPT extensions end as scheduled.

Assuming that the D.C. Circuit grants the motion, what happens next depends on whether the judge in District Court does No. 3 or No. 4. If No. 3, the court could modify the judgment and the STEM OPT extension could continue on its merry way beyond February 12. In the District Court does No. 4, there could be a hearing or more briefings.

The shortest path for getting a delay under the 29 days available is possible if the D.C. District and the D.C. Circuit both produce opinions within a week.

One additional complexity is that the order that DHS seeks to modify is a specific issue on appeal. The D.C. Circuit would have to agree to yield on an issue presented to that court in order to grant a remand.

Even if everything goes in their favor, it is unlikely that, under Rule 62.1, DHS could get a decision by the February 12 deadline. DHS has also argued that Rule 62.1 does not apply, quoting advisory notes to the rule:

Rule 62.1 applies only when those rules deprive the district court of authority to grant relief without appellate permission." Fed. R. Civ. P. 62.1 adv. comm. notes (2009) (emphasis added); see also 11 Charles Alan Wright, Arthur R. Miller, May Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure ยง 2911 (3d ed. 2014). Here, Plaintiff fails to point to any rule that would deprive this Court of jurisdiction to modify its own order entering a stay of vacatur of the 2008 STEM OPT Extension rule.

Having the last word in the briefing process allows one to make such arguments. Here are the first three sentences of the same commentary quoted by DHS:

This new rule adopts for any motion that the district court cannot grant because of a pending appeal the practice that most courts follow when a party makes a Rule 60(b) motion to vacate a judgment that is pending on appeal. After an appeal has been docketed and while it remains pending, the district court cannot grant a Rule 60(b) motion without a remand. But it can entertain the motion and deny it, defer consideration, or state that it would grant the motion if the court of appeals remands for that purpose or state that the motion raises a substantial issue.

For DHS to be successful here, no one in the court can follow up. (Read the full text.)

There is some big news in DHS's reply. DHS makes an interesting reversal in its reply in regard to the effect of a vacatur order. In seeking a stay of a vacatur of the OPT Extensions, DHS stated to the District Court:

Here, a vacatur order would "take off the books" the OPT-STEM extension rule providing thousands of foreign students with work authorization while presently in the United States. This emergency situation would cause these workers and their family members to scramble to depart the United States in an effort to avoid any possible immigration consequences.
โ€” DHS Opp., ECF 36 at 55.

The District Court responded to that argument, granting a six-month stay and stating:

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.
โ€” Court's Mem. Op. ECF 43 at 36.

In its reply last week, DHS reversed itself on the effect of a vacatur:

Given that the 2008 STEM OPT Extension rule remained lawful and that these EADs were issued pursuant to regulations that were effective and valid at the time of approval, DHS believes that the employment authorization granted to these individuals remains lawful.
โ€” DHS Rep., ECF 50 at 6.

If DHS were to simply allow aliens to work under the 2008 STEM OPT extensions, a motion for contempt of court would swiftly follow. Rather than act unilaterally, DHS has put out a feeler to the court for permission.

This is an onside kick on DHS's part. Even if all the cards come down in DHS's favor on the motion to delay the stay of vacatur, it unlikely to occur before the February 12 deadline. The obvious upside to this move is that getting a nod from the Court would give a green light to keep STEM OPT going for another 17 months.

The equally obvious downside is the possible negative reaction from the Court. The Court granted DHS a stay because it was told that without it such OPT workers would have to return home. DHS now says that even without the stay those workers do not have to return.

DHS probably made the right move here but I'm glad I'm not the one having to make such a request of a court.

In any event, we are still in the same situation as we were on August 12, 2015: Unless something changes, the OPT extensions will end on February 12, 2016.