shutterstock_235526545Back in October, I predicted that technology companies, universities, and foreign students would have to wait past a court-imposed February 12, 2016 deadline for a new rule that would continue the “STEM OPT Extension” part of the Optional Practical Training Program.  In order to meet the court’s deadline, I pointed out that DHS would need to publish its final rule 60 days before the anticipated effective date, December 14, 2015.  That deadline has come and gone.

The plaintiffs in the case that resulted in the February 12 deadline have appealed because they did not like Judge Huvelle’s earlier rulings that the OPT program is well within the Department of Homeland Security’s statutory authority. Judge Huvelle held that OPT is a well-established part of immigration law that Congress authorized through several major revisions of the statute over the past 25+ years.  At present, the DC Circuit Court of Appeals is reviewing that issue, as well as the plaintiffs’ standing to bring the lawsuit challenging a duly-promulgated regulation based on a bare assertion that they have been harmed by the OPT program.

On December 22, 2015, the government filed a motion under Federal Rules of Civil Procedure (FRCP) 60(b)(6) to extend the stay of vacatur for 90 days, in order to give the government additional time to analyze the more than 43,000 unique comments (and over 7,000 additional comments with duplicative language) that were received in response to the agency’s October 19, 2015 Notice of Proposed Rulemaking.  The government must show “exceptional circumstances” justifying extraordinary relief in order to succeed on the Rule 60(b)(6) motion, and the huge number of comments that require review and  analysis is a large part of their claim.  Indeed, the number of comments is unprecedented: DHS received more than twice as many comments on the OPT proposed rule as it did on the proposed rule imposing federal standards on state driver’s licenses, which affected many more people.

Even if the government is unsuccessful on its FRCP 60(b)(6) motion, it has another option to delay the February 12, 2016 deadline: a stay of the court’s injunction under FRCP 62(c). While Judge Huvelle would likely not grant a stay of her ruling after refusing to delay the stay of vacatur, the government must first file a 62(c) motion at the district court level before asking for a stay of the ruling from the Circuit Court, pursuant to Federal Rules of Appellate Procedure 8.

The upshot of this legal maneuvering is that the government has given itself three bites at the apple to delay the February 12 deadline: (1) Judge Huvelle may grant the government its requested 90-day delay on the present motion; (2) Judge Huvelle may later grant a complete stay pending appeal of the injunction; or (3) the DC Circuit may stay Judge Huvelle’s injunction while it considers the merits of her rulings in the underlying case.  Interested parties should stay tuned.

Written by William Stock, AILA President-Elect