Federal Court Decision Saves Work Authorization Program for International Students with STEM Degrees

On November 30, 2020, a federal district judge in the matter of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, et al., No. 16-1170, issued an order to uphold the Obama-era program permitting extensions of optional practical training (OPT) work authorizations for certain international students with qualifying science, technology, engineering, and math (STEM) degrees.

By regulation, foreign students in F-1 visa status who graduate from U.S. universities or colleges can obtain twelve months of OPT work authorization following the completion of their degree programs. In 2016, the Obama administration extended the program so that F-1 students could obtain an additional two-year extension of the OPT work authorization if certain requirements were met, including holding degrees in qualifying STEM fields of study and working for employers registered with the federal E-Verify employment eligibility system. The STEM OPT program also established additional reporting obligations applicable to both employers and international students participating in the temporary work authorization program.

In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the Washington Alliance of Technology Workers (WashTech) claimed that President Barack Obama’s administration exceeded its authority when creating the two-year extension of work authorization for international students. The U.S. Department of Homeland Security (DHS) defended the STEM OPT program, stating in a November 2019 brief that the program did not conflict with existing U.S. worker protections and was consistent with “Congress’ decades-long acquiescence to the agency’s permitting foreign students to engage in post-graduation practical training.”

Three major trade associations—the National Association of Manufacturers, the U.S. Chamber of Commerce, and the Information Technology Industry Council—intervened as additional defendants in the case to represent international students’ interests. Numerous companies and organizations also filed amicus briefs supporting the STEM OPT program. After years of litigation, U.S. District Judge Reggie B. Walton issued an order denying WashTech’s motion to dismiss and granting the defendants’ and intervenor-defendants’ motions to dismiss, indicating that a written opinion describing the rationale supporting the decision would be issued within 60 days, thus preserving the STEM OPT program for international students.

Although WashTech has indicated a plan to appeal the decision, Judge Walton’s ruling is nonetheless beneficial to U.S. universities, international students, and U.S. employers. The court’s decision affirms that the STEM OPT program can continue to provide a pathway for international students to work in the United States for a defined period following their graduations from U.S. colleges and universities. At this point, it is unlikely that further restrictions or elimination of the STEM OPT program will occur during the term of the Trump administration.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to this case and post updates as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.