Recognizing the significant hardship a regulatory gap would cause current and future participants in the STEM OPT program, the U.S. District Court for the District of Columbia has given the Department of Homeland Security an additional three months to issue a new rule to cure the defects in the STEM OPT rule extension that the court vacated on August 12, 2015.

The August vacatur was to take effect on February 12, 2016, unless DHS issued a new rule to cure the defects found. Now, DHS will have until May 10, 2016.

On August 18, 2015, the Washington Alliance of Technology Workers (WashTech) filed a notice of appeal with the Court of Appeals for the District of Columbia Circuit challenging the scope of DHS’s regulatory authority in initially establishing the STEM OPT benefits in 2008.

On January 11, 2016, WashTech filed a motion to reject DHS’s previous request for extension, arguing the district court had no jurisdiction to extend its stay of vacatur because WashTech’s pending appeal with the D.C. Circuit Court automatically divested the lower court of jurisdiction to grant the relief requested by DHS, unless the district court first issued an indicative ruling and sought to remand the case from the circuit court. DHS argued that the district court has discretion under Federal Rules of Civil Procedure Rule 60(b) to relieve a party from a final order for a series of specific, enumerated reasons or for “any other reason that justified relief.” See Murray v. Dist. of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995).

DHS argued its unexpected inability to promulgate a replacement rule before the stay’s expiration constitutes extraordinary circumstances, citing an unexpected and unprecedented public response to its October 19, 2015, Notice of Proposed Rulemaking. F.R.C.P. Rule 60(b)(5) provides that a party may ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.

In its January 23, 2016, Order, the district court stated that although a filing of notice of appeal would confer jurisdiction on the court of appeals, the district court only surrenders “its control over those aspects of the case involved in the appeal.” The court concluded that it retained jurisdiction over DHS’s motion and need not seek remand as the extension of stay would not affect the issues on appeal. In other words, a three-month extension would protect D.C. Circuit’s jurisdiction, possibly allowing the circuit court to rule on the stay’s propriety before that issue becomes moot.

The court found no merit to WashTech’s argument that the changes proposed by DHS — or the uncertainty those changes have occasioned — disqualify DHS from the limited relief it sought.

DHS said the STEM OPT program’s approximately 23,000 participants, 2,300 dependents of participants, 8,000 pending application for extensions, and 434,000 foreign students who might be eligible for STEM OPT authorizations would be adversely affected if the extension is not granted. Similarly, the U.S. tech sector and educational institutions would suffer competitively due to the resultant loss of talent. The court said the limited modification requested in this case is warranted.