STEM OPT Regulations Valid : Preliminary Injunction Denied
Posted Aug 22, 2008
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The Optional Practical Training (OPT) regulation continues to remain valid for the additional 17-month OPT extension for science, technology, engineering, and mathematics (STEM) graduates. On August 5, 2008, U.S. District Court Judge Faith S. Hochberg denied a request for a preliminary injunction that would have halted the OPT extensions temporarily for STEM graduates. The preliminary injunction was filed against the U.S. Department of Homeland Security (DHS) by the Programmers Guild, American Engineering Association, and other immigration restrictionists. A more detailed report of this lawsuit is available on MurthyDotCom in our July 4, 2008 article entitled, Groups File Lawsuit Challenging Extensions of OPT.
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The Complaint against F-1 OPT Extensions
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The plaintiff restrictionist groups argued that the DHS had created a new immigration classification with the F-1 OPT STEM extensions without complying with the proper procedures for such changes. The DHS argued that it was not a new classification, but, rather, an extension of the validity of a long-standing immigration benefit. The plaintiffs also claimed that, without the injunction, they face immediate increase in job competition in the industries of engineering and computers.
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Judge Denied the Preliminary Injunction on Various Grounds
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Judge Hochberg rejected the request for an injunction against the DHS on several grounds. In order to obtain a preliminary injunction, the plaintiffs requesting the injunction have to show that they are likely to win their lawsuit overall. The Judge first stated that it was not likely that the plaintiffs could prove their claim that the DHS was not authorized under U.S. law to create extensions of Optional Practical Training (OPT) for F-1 visa holders.
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The Judge also stated that the plaintiffs did not allege any real or concrete legal injuries, but instead raised a generalized grievance with a government policy. The Court pointed to long-standing case law which provides that raising general grievances about government, and seeking relief that does not benefit an individual plaintiff any more directly than the public, does not create a recognizable legal claim that can be heard in federal court. Thus, since the Court found that the plaintiffs have substantial problems with respect to whether they are even proper parties to bring such a suit (referred to as having legal standing), and are unlikely otherwise to prevail, the DHS would not be enjoined or halted from the continued issuance of the STEM OPT extensions.
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DHS Has Authority for STEM OPT Extensions
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Finding that the DHS has the legal authority for STEM OPT extensions, Judge Hochberg denied the plaintiffs' motion for a preliminary injunction and noted that the entire lawsuit soon may be dismissed, as the Programmers Guild and other plaintiffs may lack sufficient legal standing to file the lawsuit.
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Preliminary Injunction has Potential Harm for Students / Employers
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The Court found that granting the injunction would cause extreme hardships to legally present students by forcing them to fall out of status. It also found that granting the injunction would create confusion and unpredictability for both the students and their employers.
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The Court recognized the government's compelling interest in being able to extend timeline requirements in order to efficiently run government programs. Since it is the federal government's responsibility to regulate immigration, it must have the flexibility to do so.
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Conclusion
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Based upon the Court's ruling, the STEM OPT extensions will remain in place at this time. It does not appear that they are in danger from this lawsuit, as it is not likely to be successful. The issue of standing will be reviewed separately, but the wording used by the Court indicated that it had serious concerns about the plaintiffs' eligibility to bring this suit. Thus, it appears likely that it will be dismissed for lack of standing.