United States: International Students May Continue To OPT-In To Post-Graduate Employment

The US Supreme Court has declined to consider a lawsuit that sought to eliminate a work authorization program widely utilized by foreign graduates of US universities. The move affirms a lower court decision which found that the Department of Homeland Security (DHS) acted within its regulatory mandate when adopting rules that allow students in F-1 status to work in the United States for up to three years after graduation. The Supreme Court's denial of a writ of certiorari ensures that foreign graduates may continue working through DHS's Optional Practical Training (OPT) program, eliminating a source of uncertainty for students, universities, and employers alike.

Congress expressly authorizes employment for only select visa categories. According to several Senators and some observers, the broader implication of the Supreme Court's decision is to effectively strip Congress of its authority to control the employment eligibility of non-immigrants, ceding that authority to the executive branch.¹ Accordingly, the executive branch is now empowered to grant employment eligibility to a wide range of non-immigrants—in 22 categories—including the dependent spouses of principal non-immigrant applicants.²

Effect on Employers

This outcome can be viewed positively by some employers, as the program offers access to a broad pool of international students and graduates who have been educated in the United States, providing them with a diverse set of skills and perspectives.³ Further, OPT may make it easier for organizations to attract and retain global talent, particularly in industries facing skills shortages or in need of specialized expertise—thus fulfilling short-term staffing needs and addressing skills gaps, which can be crucial for industries with dynamic labor demands. In some instances, international students may bring unique ideas, knowledge, and cultural insights that may enhance a company's innovation and international competitiveness. Advocates of OPT also note that it aids in retaining global talent, as well as maintaining the international appeal of US educational institutions by allowing students to apply their knowledge in a practical post-graduation setting.

Increasing Usage of Optional Practical Training

More than one million international students attended US universities in 2022, with the majority of them entering on F-1 visas.⁴ More than half of these students were pursuing master's and doctoral degrees. Under a series of regulations dating back to the 1940s, eligible F-1 students may request employment authorization for practical training in positions that are directly related to their major area of study. Such students must be enrolled full-time in an academic program, and the school must require or recommend the training as directly related to their degree. Students who apply for F-1 OPT are eligible to work for a US employer for up to 12 months following graduation, and students who graduated in science, technology, engineering, and mathematics (STEM) fields are eligible to apply for an additional 24-month extension, known as STEM OPT.

As the number of entrants in the annual H-1B visa lottery has increased dramatically in recent years, reliance on OPT and STEM OPT by students and their employers has increased in turn.⁵ Because of historically low selection rates for the H-1B lottery, OPT and STEM OPT are often the only immediate means of work authorization available to foreign graduates. In 2007, only 24,000 students were authorized to work under DHS's post-graduate practical training programs, but by 2022, that figure had grown to more than 170,000—a 600% increase.⁶

The WashTech Lawsuit

The lawsuit began in 2016, when a labor union known as the Washington Alliance of Technology Workers (WashTech) challenged the legality of DHS's practical training programs. WashTech argued that the OPT and STEM OPT programs were an act of executive overreach, exceeding the bounds of the F-1 visa program as set by Congress. Specifically, WashTech argued that DHS had no authority to provide work permits to F-1 students after completion of their academic programs, as the statute does not expressly consider a post-graduate training component for the F-1 program. The plaintiffs asserted that DHS's actions in authorizing practical training had created unfair competition by opening the US labor market to many more international students than would otherwise be eligible to work. Further, they argued that the applicable statute unambiguously states that the purpose of the F-1 student is study in the United States, and that the OPT is "entirely the creation of regulation" and that it "is now the largest alien guestworker program in the immigration system."⁷

Before the Supreme Court's most recent action, WashTech's challenge was rejected by the US Court of Appeals for the District of Columbia Circuit, which often hears appeals related to administrative law. The court found that the regulations behind the practical training programs reasonably relate to the composition and purpose of the F-1 statute, and that the regulations were a reasonable exercise of DHS's authority—delegated to it by Congress—to set the time and conditions of F-1 students' presence in the United States.⁸

WashTech's suit attracted support from 11 states⁹ and over 35 members of the House¹⁰ and Senate¹¹, who note that the statutory text does not consider such a program; the executive branch has not been delegated the authority to promulgate OPT; and the program disregards the statutory definition (i.e., a bona fide student seeks to enter the United States "solely for the purpose of pursing a [full] course of study") and limits on the duration of status for F-1 students.¹²

Critics of OPT cite concerns that it yields a work authorization program that is "bigger, longer, and more expansive in benefits" than the employment programs created by Congress (such as the H-1B specialty worker program), does not have a numerical cap, and is in contravention of Congress's tightly circumscribed scheme.¹³ Further, they dispute the lower court's decision that DHS was authorized to grant work authorization if it "reasonably relates" to the particular visa upon which the individual entered, stating that there is no textual basis in the statute for a "reasonably related" test and the proper limits are those Congress actually imposed.¹⁴

In refusing to review the appellate court's decision, the Supreme Court allowed the "reasonably relates" standard to prevail.

Further Expansions of Practical Training Ahead?

Over the last two years, DHS has added 30 new academic fields to the list of majors that enable an F-1 student to request a STEM OPT extension, with 22 fields added in January 2022 and an additional eight fields added in July 2023.¹⁵ The new fields include bioenergy, cloud computing, mathematical economics, business analytics, and industrial and organizational psychology, geospatial intelligence, demography and population studies, institutional research, and landscape architecture.

With the end of the WashTech lawsuit, some advocates are urging DHS to consider adding even more academic fields to the list of STEM OPT-eligible majors. Many allied medical fields—such as nursing—are not represented on the current list. Whether DHS will take such action remains to be seen, but with the end of the WashTech lawsuit, one potential obstacle to additional expansions has been removed.

Further, the decision may empower DHS to extend or broaden employment authorization across additional visa categories.

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Footnotes

1. Brief of U.S. Senators Ted Cruz, Mike Lee, Tom Cotton, Mike Braun, and Katie Boyd Britt As Amici Curiae In Support of Petitioner at 18, Washington Alliance of Tech. Workers v. Dep't of Homeland Security, No. 22-1071 (U.S. June 5, 2023).

2. “The D.C. Circuit held that its interpretation of § 1101(a)(15) as setting only entry conditions applies to all 22 categories of nonimmigrant visas.” Id.

3. Brief of FWD.us et al. As Amici Curiae In Support of Defendants-Appellees and Intervenors at 2-3, Washington Alliance of Tech. Workers v. Dep't of Homeland Security, 50 F.4th 164 (D.C. Cir. 2022), No. 21-5028.

4. U.S. Immigration and Customs Enforcement, Student and Exchange Visitor Program, 2022 SEVIS By The Numbers Report (2022), https://bit.ly/3rFlDMS.

5. Morgan Bailey, Maximillian L. Del Ray and Kelly Kramer, US Government Launches Fraud Investigations into Dozens of Companies for H-1B Lottery Abuse, Mayer Brown Perspectives & Events (Aug. 2023), https://bit.ly/3tqTTMM.

6. U.S. Dep't of Immigration and Customs Enforcement, 2007 to 2022 Annual Growth in OPT, STEM OPT and CPT Authorizations with Employment Start Dates During an Indicated Calendar Year, https://bit.ly/46jdQnb.

7. Petition for Writ of Certiorari at 3, Washington Alliance of Tech. Workers v. Dep't of Homeland Security, No. 22-1071 (U.S. May 1, 2023).

8. Washington Alliance of Tech. Workers, 50 F.4th at 179-80, 189-90.

9. Brief of Kansas and 10 Other States As Amici Curiae In Support of Petitioner, Washington Alliance of Tech. Workers v. Dep't of Homeland Security, No. 22-1071 (U.S. June 2, 2023).

10. Brief of 31 Members of the United States House of Representatives As Amici Curiae In Support of Petitioner, Washington Alliance of Tech. Workers v. Dep't of Homeland Security, No. 22-1071 (U.S. June 2, 2023).

11. Brief of U.S. Senators, supra n.1.

12. 8 U.S.C. § 1101(a)(15)(F).

13. Brief of U.S. Senators, supra n.1, at 19.

14. Id. at 19-20.

15 .Press Release, U.S. Dep't of Homeland Security, DHS Expands Opportunities in U.S. for STEM Professionals (Jan. 21, 2022) (22 new fields of study); U.S. Immigration and Customs Enforcement, Student and Exchange Visitor Program, DHS STEM Designated Degree Program List (July 12, 2023), https://bit.ly/3Q6IVVm.

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