IRLI Awarded Attorneys’ Fees in STEM OPT Case

August 16, 2016

On Monday, August 8, a U.S. district court judge awarded the Washington Alliance of Technology Workers (WashTech) $42,000 in attorneys’ fees and litigation costs in their suit against the Department of Homeland Security (DHS). (SeeLaw360, Aug. 8, 2016) WashTech, which is represented by FAIR’s legal arm the Immigration Reform Law Institute (IRLI), had sued DHS over its decision to bypass the notice and comment period required by law in 2008 when it extended the Optional Practical Training (OPT) program by 17 months for foreign nationals with STEM degrees. The federal judge agreed and vacated the 2008 STEM OPT expansion but she stayed her ruling to allow the Obama administration time to implement a new rule. Noting that the cancelation of the 2008 STEM OPT rule meant the court found DHS violated the Administrative Procedures Act (APA), IRLI declared victory and demanded that DHS pay WashTech’s attorneys’ fees and litigation costs. Although the judge refused to approve the over $400,000 in fees WashTech sought, she did require DHS to pay $42,000 for what she called a “marginal victory.”

On Monday, August 8, a U.S. district court judge awarded the Washington Alliance of Technology Workers (WashTech) $42,000 in attorneys’ fees and litigation costs in their suit against the Department of Homeland Security (DHS). (SeeLaw360, Aug. 8, 2016) WashTech, which is represented by FAIR’s legal arm the Immigration Reform Law Institute (IRLI), had sued DHS over its decision to bypass the notice and comment period required by law in 2008 when it extended the Optional Practical Training (OPT) program by 17 months for foreign nationals with STEM degrees. The federal judge agreed and vacated the 2008 STEM OPT expansion but she stayed her ruling to allow the Obama administration time to implement a new rule. Noting that the cancelation of the 2008 STEM OPT rule meant the court found DHS violated the Administrative Procedures Act (APA), IRLI declared victory and demanded that DHS pay WashTech’s attorneys’ fees and litigation costs. Although the judge refused to approve the over $400,000 in fees WashTech sought, she did require DHS to pay $42,000 for what she called a “marginal victory.”

As noted above, IRLI challenged the STEM OPT expansion and the judge vacated the 2008 rule finding there was no emergency that allowed the Bush administration to violate the notice and comment requirements of the APA. (SeeLaw360, Aug. 8, 2016) Unfortunately, DHS, under the Obama administration, instituted a replacement rule in compliance with the APA that extended the period of OPT for foreign nationals on an F-1 visa with a STEM degree by an additional 2 years – for a total of 36 months after degree completion. Although receiving any fee award under the Equal Access to Justice statute is an impressive achievement for IRLI as the awards are typically handed out to open-borders litigation groups, IRLI has appealed the lower court’s fee ruling as inadequate to the D.C. Circuit.