California Labor &
Employment Law Blog
Aug. 13 2015

DHS F-1 STEM Employment Authorization Regulations Struck Down

Topics: Immigration

In another defeat to the Obama Administration, on August 12, 2015, U.S. District Court Judge Ellen Segal Huvelle struck down the Department of Homeland Security’s F-1 STEM employment authorization regulations. These regulations allowed F-1 students with a degree in a Science Technology, Engineering, or Math (or STEM) field to remain in and work in the United States for up to 29 months after graduation.

In August of 2008, DHS published the regulations at issue here as “emergency” interim final regulations.  DHS did not engage in notice and comment rulemaking that is normally required by the Administrative Procedures Act (APA).  DHS justified side stepping notice and comment rulemaking by citing the heavy demand for H-1B visas and the necessity to retain STEM graduates in the US labor market.  DHS stated that it did not have the time to publish these rules and review comments before the next allotment of H-1 visas became available on April 1, 2009.

On March 28, 2014, the Washington Alliance of Technical Workers filed suit against the DHS in the US District Court for the District of Columbia questioning the legality of the F-1 STEM regulations.  While most of the causes of actions the plaintiff’s alleged were dismissed, the court found that the DHS should have engaged in notice and comment rulemaking.  The court issued an order striking down the regulations.

Citing the disruption to F-1 students currently in the United States using the F-1 STEM Employment Authorization as their source of immigration status and their employers, the court stayed its ruling until February 12, 2016.  The DHS may appeal the District Court’s ruling or choose to publish these regulations for comment as required by the APA.  Follow this blog for updates on this case.

Employers who are presently employing F-1 STEM students should seek counsel from a competent immigration attorney and discuss the options available to retain the services of their employee beyond February 12, 2016.

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