Supreme Court Rejects Challenge to OPT Program for Foreign Students

The Supreme Court of the United States has declined to hear a challenge to a visa program that allows foreign students who graduate from U.S. colleges and universities to work in the United States for up to three years. The petitioner in the case opposed the Optional Practical Training (OPT) program, which provides temporary employment authorization directly related to F-1 students’ major area of study.

Quick Hits

• The case was brought by a technology union called the Washington Alliance of Technology Workers (WashTech).
• WashTech argued that the OPT program was not authorized under federal immigration law and created unfair competition among workers; WashTech also argued that DHS had lacked authority to create the program without express congressional approval.
• The U.S. Court of Appeals for the District of Columbia Circuit upheld the validity of the program in October 2022. The Supreme Court’s decision to not hear the case effectively concludes the union’s challenge.

OPT allows U.S. college and university graduates to obtain employment experience in their industry of choice for one year post-graduation. Eligible students can apply to receive up to twelve months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). This work authorization can be extended for an additional twenty-four months for students in selected science, technology, engineering, and math (STEM) fields. The OPT program is estimated to have benefited more than 117,000 students with F-1 visas in 2022.

The STEM OPT extension allows graduates who have earned a U.S. degree in certain STEM fields to apply for a twenty-four-month extension of their post-completion OPT employment authorization if they:

• are F-1 students who received a STEM degree included on the STEM Designated Degree Program List;
• are employed by an employer that is enrolled in and is using E-Verify; and
• received an initial grant of post-completion OPT employment authorization based on their STEM degree.

The case, Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, was brought by a technology union called the Washington Alliance of Technology Workers. WashTech argued that the OPT program was not authorized under federal immigration law, created unfair competition among workers, and that the U.S. Department of Homeland Security (DHS) had lacked authority to create the program without express congressional approval. The U.S. Court of Appeals for the District of Columbia Circuit upheld the program in 2022, and the Supreme Court’s decision not to hear the case effectively concludes the union’s challenge.

The perception of unfair competition can be traced, in part, to the economic disruption caused the COVID-19 pandemic: it reportedly led four lawmakers to argue in 2020 that OPT “allow[s] foreign students to stay for three additional years just to take jobs that would otherwise go to unemployed Americans as our economy recovers.” The lawmakers are also reported to have asked the president to issue an executive order to suspend OPT to protect the U.S. economy.

Looking Ahead

WashTech was the second case presented to the Supreme Court this term with the request that it reshape higher education policy. In a case the Court did accept for argument this term, Consumer Financial Protection Bureau v. Community Financial Services Association of America, a trade group is challenging the constitutionality of how the Consumer Financial Protection Bureau (CFPB) is funded. A decision in favor of the plaintiff trade group would limit the power of CFPB, an independent federal agency with oversight of products and services in the consumer finance marketplace, including those related to student financial aid.

Ogletree Deakins’ Higher Education Practice Group and Immigration Practice Group will continue to monitor developments and will provide updates on the Higher Education and Immigration blogs as additional information becomes available.

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