Federal Court Rules Against Tech Union in Effort to End OPT

The issue

Judge Reggie B. Walton of the United States District Court for the District of Columbia has issued a summary judgment order upholding the Department of Homeland Security’s post-graduate Optional Practical Training (OPT) programs. The ruling comes in response to a 2016 lawsuit filed by Washington Alliance of Technology Workers (WashTech), which claimed in part that the 2016 STEM OPT rule was issued in excess of DHS’s statutory authority.

A detailed decision outlining Judge Walton’s reasons for ruling in favor of DHS without a full trial will be issued within 60 days. The plaintiffs are expected to appeal.

The case is Washington Alliance of Tech Workers v. U.S. Department of Homeland Security et al. in the U.S. District Court for the District of Columbia.

Background

The district court’s decision is part of a years-long litigation effort spearheaded by WashTech in opposition to OPT programs for foreign graduates. 

In 2014, the technology union lodged its first challenge, focusing on the 2008 STEM OPT rule, which provided 17-months of additional practical training to foreign graduates with degrees in science, technology, engineering and math. In that challenge, the district court ruled that DHS had the authority to create the STEM OPT program, but failed to meet its notice and comment obligations when it published the regulation in 2008. Though the court vacated the 2008 rule, it stayed its ruling in order to give DHS time to meets its rulemaking obligations and minimize hardship to F-1 students and employers.

DHS complied with the court's ruling by proposing the current STEM OPT regulation in 2016 and meeting its notice and comment obligations. The new rule, which took effect in May 2016, increased STEM OPT extensions from 17-months to 24-months.

Immediately after the current rule took effect, WashTech filed the latest lawsuit, which has been ongoing for over four years. Though the Trump Administration, which is critical of practical training programs, has defended the 2016 rule in court, the current litigation was bolstered by three trade associations which were permitted to intervene in the lawsuit. Through their filings, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Information Technology Industry Council provided a strong defense of the rule and its promulgation as well as details about how practical trainings programs benefit the U.S. educational system and economy.

What this means

The district court’s decision ensures the OPT and STEM OPT programs will remain in place for now. WashTech, however, is expected to appeal the ruling once the full written decision is issued by Judge Walton.

Outside of the litigation, there still remains some threat to practical training programs from the Trump administration. The administration’s Spring Regulatory Agenda reflects plans to propose further restrictions on the OPT and STEM OPT programs by the end of December. However, time is running short on the agency’s ability to finalize a rule by the end of President Trump’s term in office. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.