Litigation Overview on the F-1 STEM OPT (Optional Practical Training Work Authorization for International Students)

Published: 04/07/2017


Back in August 2015, a D.C. federal judge said the 2008 Department of Homeland Security rule that allows STEM graduates in F-1 status to obtain an additional 17 months of OPT time in the U.S. was deficient. The decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security was based on the fact that DHS did not go through the usual notice and comment period required for new regulations.

Uber is hiring Operations & Logistics Manager readers know that the judge vacated the 2008 rule allowing the 17-month extension, HOWEVER, a stay was put in place until a new regulation could be put in place. That new regulation took effect on May 10, 2016 and allows a new STEM OPT extension of 24-months. The same group of tech workers that challenged the old STEM OPT rule filed a new lawsuit in June 2016 in federal court again challenging DHS policy allowing student visa holders to work after completion of their studies.

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The new lawsuit brought by the Washington Alliance of Technology Workers argues that the Optional Practical Training (OPT) program denies labor protections to US tech workers, allows increased competition, allows unfair competition, provides foreign students the benefit of mentoring programs (i.e. the I-983 training plan) without requiring schools to give the same benefit to US workers, and violates procedural rights of US workers by failing to include the question of whether OPT should be expanded in the first place in the regulatory process. Washtech asked the court to issue a declaratory judgement (find in their favor without going through an entire trial) that DHS exceeded its authority by allowing F-1 students the ability to work, vacate the new regulations, and award attorneys fees to Washtech.

The Department of Homeland Security responded to the lawsuit with a Motion to Dismiss (this occurred during the Obama administration), arguing that Washtech does not have standing because they could not prove that any injury was caused by the 2016 Rule or the old 1992 Rule. DHS argued that Washtech’s case relies entirely on cookie-cutter allegations they previously raised when they challenge the 2008 Rule and Washtech’s challenge to the 1992 Rule should be time-barred.

Last month, the Court granted part of DHS’ motion to dismiss, but also denied part of the motion to dismiss. At this time, we don’t know exactly which parts of the lawsuit are allowed to continue. The court indicated that it would issue an opinion within the next 30 days explaining the decision and the reasons for their findings. We should no more about the status of this case by the end of April.

Once the the opinion explaining the court’s action is issued, the case will proceed through the long litigation process ahead on the remaining parts of the lawsuit that were not dismissed. This will likely be a long process and we will have to wait and see how the Trump Administration proceeds.

For now, the 12-month OPT and the 24-month STEM extension remain in effect and will continue to be available for students for the foreseeable future.


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