Lawsuit Against OPT Programs for Foreign Students Expires at Supreme Court

​The U.S. Supreme Court recently declined to hear a challenge to a work program for foreign students, ending yearslong litigation and preserving the program for the students and U.S. employers that depend on it.

Optional Practical Training (OPT) provides temporary work authorization to international students in the U.S. studying on an F-1 student visa. It allows those students to work during their studies or up to one year after graduation in an industry related to their field. This work authorization can be extended for an additional 24 months for students in certain science, technology, engineering and math (STEM) fields.

It was the STEM extension in particular—first announced by the Department of Homeland Security (DHS) in 2008 and modified in 2016—that led a group of IT workers called the Washington Alliance of Technology Workers (WashTech) to file a lawsuit against it in U.S. District Court for the District of Columbia.

"WashTech argued that the OPT program was not authorized under federal immigration law and created unfair competition among workers," said Lisa Karen Atkins, an attorney in the Birmingham, Ala., office of Ogletree Deakins. "WashTech also argued that DHS had lacked authority to create the program without express congressional approval."

In January 2021, the district court ruled in favor of the government. WashTech appealed to the U.S. Court of Appeals for the District of Columbia, which upheld the validity of the program in October 2022. The appellate court said that the government did have the authority to create the program and that the practical training opportunities the rule permits reasonably relate to the terms of the F-1 visa.

The U.S. Supreme Court denied the group's bid for a hearing on Oct. 2. "The Supreme Court's decision to not hear the case effectively concludes the union's challenge," Atkins said.

Another Guest-Worker Program?

WashTech and others argue that the OPT programs are used to circumvent the numerical limits under the separate H-1B visa program for skilled workers. The STEM OPT extension in particular is well known in the tech industry to be a placeholder method for foreign STEM talent while they wait for the more elusive H-1B visa, which is based on a lottery system and can take many years to be selected.

"Opponents argue that what was initially intended to give students work experience in their field has become a large-scale temporary worker program without safeguards in place to protect U.S. workers and students," said William Kandel, an immigration policy analyst at the Congressional Research Service in Washington, D.C.

There's no cap on the number of students eligible for the OPT program. Fewer than 25,000 students participated in the program in 2007. By 2017, that number had risen to 204,000, though participation fell during the pandemic and was last reported at just over 170,000 in 2022. Meanwhile, 85,000 H-1Bs are issued a year. About half of all H-1B workers were previously foreign students studying in the U.S., according to DHS data.

"Educators consider OPT and STEM OPT essential because practical training benefits students' education and encourages them to enroll in U.S. universities," said Stuart Anderson, executive director of the National Foundation for American Policy in Arlington, Va. He added that the additional 24 months in STEM OPT "also allows employers a better opportunity to secure an H-1B petition for students."

Talent Pipeline

The OPT program and its STEM extension have the support of SHRM, the U.S. Chamber of Commerce and other employer groups, which joined the Biden administration in defending it.

"The Supreme Court's decision to not take up the WashTech case against Optional Practical Training is an important victory for U.S. higher education and has far-ranging implications for U.S. competitiveness in the global economy," said Fanta Aw, executive director and CEO of NAFSA: Association of International Educators. "As NAFSA has long argued, enabling international students to advance their education through applied learning is essential to attracting them to our colleges and universities. Amid an increasingly competitive global education market, we cannot afford to lose this time-tested tool for drawing the world's best and brightest to our classrooms, campuses and communities.

Carla Stenzel, an attorney in the Omaha, Neb., office of Jackson Lewis, said, "With the court's denial, the appeals court decision stands and it seems the case has finally come to an end. This is good news for the foreign nationals who highly value the post-graduation programs and companies in the STEM industries who continue to struggle to find enough highly skilled workers."