D.C. Court Vacates STEM Rule, but Allows DHS to Remedy Problem - WLG Expects STEM Program to Remain Unchanged

In a decision last week, on August 12, 2015, a district court in Washington D.C. decided to vacate a 2008 rule by the U.S. Department of Homeland Security (DHS) that allowed an additional 17 months of work authorization to eligible Science, Technology, Engineering, and Mathematics (STEM) students in F-1 status.  A main issue in the lawsuit was whether DHS exceeded its authority by issuing the 2008 rule without notice and comment to the public.  DHS argued that it had good cause to issue the rule without notice and comment because the ability of U.S. high-tech employers to retain highly skilled technical students and workers would be “seriously damaged” if F-1 students with STEM degrees were forced to leave the U.S. without further extension.  The court ultimately disagreed, and concluded that the DHS failed to show that it faced an emergency situation that exempted it from notice and public comment.

The district court then vacated the decision, but recognized the major disruptive consequences that would flow from the vacatur taking immediate effect.  Specifically, the court stated,

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.  The Court sees no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector.

The court therefore settled on a middle ground of vacating the 2008 rule, but staying the order until February 12, 2016 in order to allow DHS to submit the rule for notice and comment. 

In other words, the court is essentially allowing DHS to remedy the problem that it deemed impermissible, which will hopefully serve to further solidify the STEM program through regulation and underscore its value to foreign national students and our U.S. economic and labor system.  WLG therefore hopes and expects the program to remain unchanged ultimately.