EAH Immigration Blog

DHS Sued Over Silent Approach to Third-Party Worksite Placements for OPT

A lawsuit filed in the Northern District of Texas is alleging that DHS violated the Administrative Procedure Act (APA) by publishing a rule affecting the F-1 Optional Practical Training (OPT) program for STEM students. The original rule DHS published extending OPT employment for STEM students was properly implemented through the notice-and-comment procedure. However, the new rule did not undergo the same process even though DHS was making major changes to the program. The rule requires that all OPT work be performed physically at the physical location of the employer. The rule also prohibits these STEM students from receiving training or education from anyone not employed with the same employer. The practical effect of this rule is to prevent third-party placement through staffing and consulting companies, particularly in the tech sector. Even more concerning is that DHS has been applying this rule retroactively and invalidating employment that has already been approved by the school and registered in the SEVIS system.

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