Federal lawsuit challenges Optional Practical Training program for foreign students

5 Dec 14

UNITED STATES

A union representing U.S. technology workers filed a lawsuit in federal court challenging the government’s authority and process for issuing work authorization to F-1 foreign students after they graduate from university. On Nov. 21, a federal court ruled that the union, known as “WashTech,” has standing to challenge the 17-month STEM Optional Practical Training (OPT) program, but cannot challenge the 12-month OPT program that is available to all graduates. The STEM program allows eligible students in the fields of science, technology, engineering and mathematics to extend their OPT beyond 12 months. If WashTech wins the case, foreign graduates in STEM fields may be prohibited from working and remaining in the U.S. for more than 12 months after graduation.

The same day the court allowed the lawsuit to move forward, President Barack Obama announced that the Department of Homeland Security (DHS) would expand and extend OPT for STEM graduates. This litigation will result in DHS prioritizing that rulemaking.

BAL Government Affairs has created the following Q&A to explain the case and its impact on clients.

Who brought this lawsuit?

The Washington Alliance of Technology Workers, Local 37083 of the Communication Workers of America, the AFL-CIO (WashTech) filed a complaint against DHS on March 28, 2014 in the U.S. District Court for the District of Columbia. WashTech is a union that represents workers in science, technology, engineering and mathematics (STEM) fields throughout the U.S.

What is the subject matter of the lawsuit?

The lawsuit concerns the Optional Practical Training program, which authorizes foreign students who are present in the U.S. on F-1 student visas to remain in the U.S. after completing their studies for temporary employment related to their major or course of study. F-1 students may apply for 12 months of OPT. In 2008, DHS allowed F-1 students who receive STEM degrees to apply for a 17-month extension of OPT, resulting in a total of 29 months. DHS specifies which STEM degrees are eligible for this extension on its “STEM Designated Degree Program List.”

What are the legal claims against the OPT programs?

WashTech brought several claims against DHS, which fall into two general categories. The first category of claims concerns the 12-month OPT program. First, WashTech alleged that by authorizing students to work after completing their courses of study, DHS acted beyond its legal authority to admit students to the U.S. Second, WashTech claimed that the regulations creating the program conflict with the requirement that visa holders leave the U.S. after the expiration of their status. Third, WashTech contended that DHS designed the program to bypass the strict requirements imposed on other work visa classifications, such as the H-1B visa for workers in specialty occupations.

The second group of claims challenges the 17-month STEM extension that DHS created in 2008. First, WashTech asserted that the government’s basis for allowing the STEM extension was flawed, in part because no shortage of STEM workers existed in the U.S. Second, WashTech claimed that DHS failed to follow the required procedures under the Administrative Procedure Act (APA) when it implemented the 17-month extension in 2008, and when it subsequently expanded the list of STEM fields eligible for the extension in 2011 and 2012.

What is WashTech asking the court to do?

WashTech asked the court to declare that DHS exceeded its legal authority in creating the original OPT program and to permanently prevent DHS from authorizing employment for F-1 student visa holders not currently pursuing a full course of study. WashTech also asked the court to invalidate the 17-month OPT extension, any future actions by DHS to create a final rule regarding the extension, and the 2011 and 2012 expansions. Finally, WashTech asked the court to notify all non-students working under these programs to immediately stop working.

What is the current status of the lawsuit?

DHS filed a motion to dismiss WashTech’s claims. First, DHS argued that WashTech could not bring these claims because WashTech did not demonstrate that its members were harmed by either the 12-month OPT program or the 17-month extension. Second, DHS maintained that WashTech’s claims regarding the 12-month OPT program were barred by the six-year statute of limitations for civil actions filed against the U.S. government. On Nov. 21, U.S. District Judge Ellen Segal Huvelle granted the motion to dismiss in part, and denied it in part in a 10-page written ruling.

What is the effect of the court’s recent ruling?

The court dismissed WashTech’s claims regarding the 12-month OPT program, finding that WashTech failed to identify harm to its members as a result of the program. The court also noted that since the program has existed since 1992, the six-year statute of limitations for civil claims against the U.S. has run. In effect, the court did not allow these claims to proceed.

However, the court allowed WashTech’s challenges to the 17-month STEM extension to go forward. The court found that WashTech established that its members were harmed when they faced increased competition for STEM employment due to the 2008 creation of the 17-month OPT extension.

Overall, the ruling narrows the subject matter of the lawsuit by allowing only WashTech’s claims concerning the 17-month OPT extension for STEM graduates to proceed.

How would a win for the plaintiffs impact the OPT program?

If WashTech prevails in this case, the court would declare the 17-month OPT extension unlawful, and could order all approved work under the extension to cease. Additionally, a win for WashTech would likely hinder the planned expansion of the OPT program that Obama announced on Nov. 20 as part of the Immigration Accountability Executive Action (IAEA). In a memorandum entitled “Policies Supporting U.S. High-Skilled Businesses and Workers,” U.S. Secretary of Homeland Security Jeh Johnson directed U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to “develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students.” A decision by the court that the 17-month OPT extension is unlawful would call into question the government’s ability to implement these changes to further expand the program.

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