A court battle with big implications for some 34,000 foreign workers in the U.S. is turning into a nail-biter. In one month's time -- Feb. 12 -- these workers may be forced to stop working and will have little choice but to buy tickets back home.
The Department of Homeland Security (DHS) recently filed a motion asking the court to extend that deadline 90 days, until May 10. This extension is opposed by the plaintiff, the Washington Alliance of Technology Workers (WashTech).
A decision is due by U.S. District Court Judge Ellen Huvelle in Washington.
The affected workers are employed under the Optional Practical Training STEM (science, technology, engineering and math) extension. All foreign students are eligible to work on a student visa for 12 months under the OPT program. But a 2008 rule enables STEM students to work an additional 12 months. The STEM extension is controversial because it's seen by its critics as a way to circumvent the H-1B cap limits.
In August, Judge Huvelle ruled that the U.S. erred by approving the extension without first seeking public comment.
The DHS recently published a new rule that increased the OPT extension from 17 to 24 months, in addition to the 12-month extension already allowed. But the DHS missed deadlines for getting the rule acted on.
One of the problems that the DHS said it faced was the sheer volume of comments.
In total, DHS said it received 50,500 comments, of which 85% of 43,000 "are unique." The department said it's the most public comments it has ever received -- since its creation in 2003 -- for any regulation.
But WashTech argued, in its response, that DHS had plenty of time to prepare, and said it was a "false premise" for the department to assert that the time to act began once the court imposed the deadline.
DHS "made a critical mistake" in 2008 when it denied the public the opportunity to comment on the rule. DHS had nearly eight years to make the correction, argued WashTech.