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OPT Litigation Update, July 2019 OPT Litigation Update, July 2019

OPT Litigation Update, July 2019

What is OPT and what are the current developments with this program?

Many organizations in the United States employ F-1 student visa holders as part of the Optional Practical Training (OPT) program, where F-1 students can obtain 12 months of practical training and work experience after they graduate from their university degree programs. However, that program’s continued validity could be in doubt following a recent federal court decision. The U.S. District Court for the District of Columbia has allowed a trade group, the Washington Alliance of Technology Workers (“Washtech”), to continue with the group’s challenge of a regulation providing for 12 months of OPT after F-1 student visa holders graduate, because – as the group argues – the Department of Homeland Security did not have statutory authority to issue the original OPT regulation in 1992. Washtech represents U.S. technology workers who it says are harmed by the ability of foreign national students to obtain work authorization in the United States.

Washtech had previously brought a different suit challenging the regulation that allows for an extension of F-1 optional practical training for science, technology, engineering, and mathematics (STEM) graduates. However, that suit was dismissed in 2016 once the U.S. Citizenship and Immigration Services issued a new regulation providing for a STEM extension of OPT for 24 months that went through the traditional “notice and comment” rulemaking process.

In the present suit, Washtech claimed the Department of Homeland Security (DHS) had exceeded its authority in issuing the OPT regulation, but this challenge was previously dismissed. Earlier this month, however, after the D.C. Circuit Court of Appeals had directed the District Court to review whether Washtech could continue with its challenge, the District Court found that in discussing the legal justifications for OPT in the 2016 STEM OPT extension regulation, DHS had actually reopened the issue of its statutory authority to issue the original regulation from 1992 that established OPT. At the same time, the District Court agreed to allow certain business groups, namely the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Information Technology Industry Council, to intervene in the suit and represent the interests of employers in the litigation going forward, given the potential for harm to U.S. employers if the ability to employ F-1 students pursuant to OPT is removed.

What does this mean for employers?

At present, there is no impact on U.S. employers due to these developments. Currently, OPT for F-1 student visa holders is still in effect, and F-1 students can continue to obtain training and work experience with U.S. employers pursuant to approved OPT and STEM OPT as they otherwise normally would. F-1 students who are eligible for STEM OPT should continue to work with their employers and university Designated School Officials (DSOs) to obtain the necessary Form I-983 training plan required for STEM OPT extension approval. Further, USCIS continues to approve applications for employment authorization filed by F-1 students based on eligibility for OPT and STEM OPT.

In its recent ruling, the District Court specifically declined to rule on the overall validity of the 1992 OPT regulation, stating the Court does “not have the benefit of” substantive arguments from the business groups it allowed to intervene in the lawsuit. It is expected that this litigation could continue to take several months, if not years, to be resolved.

The Immigration Team at Ice Miller LLP will continue to monitor developments in this case. Employers with questions or concerns about this or any immigration matter may contact Jenifer M. BrownChristl Glier and/or your regular immigration point of contact at Ice Miller LLP. Attorney Scott Kuhagen also contributed to this publication.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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