The Optional Practical Training (OPT) US immigration program, which allows international students to remain in the US for up to three years to work after they graduate, has survived a legal challenge over its extension. However, the labor union that filed the lawsuit is set to appeal the ruling.
US District Court Judge for the District of Columbia, Reggie B. Walton ruled that the Department of Homeland Security (DHS) had not overstepped its authority when expanding the OPT program, despite labor union, the Washington Alliance of Technology Workers (WashTech), claiming that it had.
Nearly 250,000 people participate in the OPT scheme. The standard OPT scheme allows a post graduate to work in the US for 12 months while the STEM OPT programme allows international students who earn a degree in science, technology, engineering or mathematics to remain in America for up to three years.
WashTech files to appeal
It’s understood that WashTech has already filed an appeal to challenge Judge Walton’s ruling. The long-running case has already seen the labor union file two separate lawsuits challenging the OPT program, one of which dates back as far as 2014.
Finding in favor of the DHS, Judge Walton stated that the DHS enjoys ‘broad authority to enforce US immigration law.’ Judge Walton said: “The DHS’ interpretation that student visa holders can participate in employment for practical training purposes is long-standing, dating back to at least 1947, and deserving of deference.”
Judge Walton also referred to the fact that Congress has repeatedly amended US immigration laws during that time without blurring the DHS’ interpretations, demonstrating that Congress seemingly agrees with the DHS’ interpretations.
Following the ruling, a spokesperson for United States Immigration and Customs Enforcement (ICE) declined to comment on the case, citing pending litigation.
Meanwhile, John Miano, an attorney for WashTech said: “The labor union is confident it will prevail on appeal.”
Referring to the statutory language establishing the student visa category, Mr Miano said: “At the end of the day, the D.C. circuit isn’t going to say that a person who hasn’t attended school in years is a bona fide student solely pursuing a course of study in an academic institution.”
Limiting H1B visa numbers
Mr Miano claimed that the OPT program is an end run around congressional caps limiting the number of H1B visas. The lawsuit filed by WashTech argues that the OPT US immigration program harms American workers by creating unfair competition with foreign labor.
The OPT program is widely backed by the US tech sector and businesses. The United States Chamber of Commerce, the National Association of Manufacturers and the Information Technology Industry Council all joined in to defend the program.
The scheme also has the backing of the higher education sector. Senior director for public policy and legislative strategy at NAFSA: Association of International Educators, Rachel Banks, said: “Judge Walton’s ruling provides safety for the program for now.”
“It gives students greater assurance for when they choose to study in the US. We’ve got a new [presidential] administration in place that can go a long way to telegraph a message to international students, but also seeing decisions like this that help to reaffirm these opportunities for students just further bolsters confidence,” Ms Banks added.
Banks is under the impression that any changes to the OPT program are not going to be top of the Biden administration’s to do list, which she believes creates a sense of relief and assurance that the scheme is safe for the foreseeable future.
Under the Trump administration, many expected the OPT program to be scrapped to reduce competition for jobs for American workers. As his presidency drew to a close, Trump announced that a new US immigration enforcement unit would be set up to monitor the OPT program.
An ICE statement said: “We need to take bold action to ensure that the Optional Practical Training (OPT) programs operate in a manner that does not harm US workers or foreign student employees.”
However, just a week into Biden’s presidency, the new unit was rescinded with ICE saying that a series of compliance measures were already taking place and a new unit was not needed.
Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, an association of college leaders focused on immigration policy, said: “The ruling is important because it provides a clear, coherent, strong opinion that makes clear the government’s authority to develop and implement OPT and STEM OPT programs.”
“Plus, it comes within the context of a new administration that has already signaled that they’re going to support practical training,” Feldblum added.
Ms Feldblum believes that the decision not to establish the OPT compliance unit was a strong indication that the Biden administration is going to back opportunities for international students to apply their learning and get involved in practical training.
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