Federal Judge Upholds OPT Program

Since 2014, the Washington Alliance of Technology Workers (WashTech) has been hard at work to dismantle the Optional Practical Training (OPT) program. The latest developments in this saga happened on November 30, 2020, when Federal Court Judge Reggie B. Walton issued a summary judgment in favor of upholding the OPT program.

The OPT program enables foreign students studying in the U.S. on F1 visas to continue working in the U.S. in their field of study for 12 to 24 months after graduation. This program is often the first step for foreign nationals in their journey to get an H-1B visa. 

Judge Walton’s ruling declared it is within the legal authority of the Department of Homeland Security (DHS) to continue operating the OPT program. The ruling will be followed by his statement of reasoning within 60 days.

Let’s take a closer look at some important details and what this ruling means for you. 

What is WashTech?

WashTech, the Washington Alliance of Technology Workers, is a labor union that aims to protect the rights of U.S. workers. Their specific focus is in the fields of science, technology, engineering, and math (STEM). WashTech was founded in 1938 and represents 700,000 workers in fields such as the airline industry, telecommunication, various public services, and more. 

Why Was WashTech Suing to End the OPT Program?

WashTech believes the influx of young, competent immigrants in STEM fields enabled by OPT STEM disadvantages U.S. citizens working in STEM fields. They also believe the DHS overstepped its legal authority when it implemented the 24-month-long OPT STEM program. 

WashTech first sued the DHS in 2014 over the OPT extension issued by the DHS in 2008. This OPT extension granted F1 postgraduates with STEM degrees an OPT extension from the original 12 months to 17 months. In this initial lawsuit, WashTech’s complaint did not challenge the DHS’s authority to create the OPT program but contended the DHS did not meet several legal requirements relating to the process of publishing the regulation change in 2008. 

This case was officially closed in 2016 when the DHS complied with court requirements and then proposed a new, even longer program duration for OPT STEM. OPT STEM was changed to 24 months, which remains the current duration of the program. OPT participants who do not have STEM degrees are only allowed to work in the U.S. in their respective fields of study for up to 12 months. 

When WashTech sued the DHS for the second time in 2019 after this further extension, the Washington Alliance of Technology Workers Union vs. U.S. Department of Homeland Security et al. lawsuit ensued. 

WashTech’s challenges have met resistance from both the Trump Administration and three independent trade associations that were granted permission to participate in the lawsuit. Although the Trump Administration has not always been supportive of training programs like the OPT program, it has until now defended the 24-month-rule issued by the DHS in 2016. The three trade associations that participated in the lawsuit—the National Association of Manufacturers, the U.S. Chamber of Commerce, and the Information Technology Industry Council—all contributed concrete evidence of how training programs contribute positively to the U.S., and they provided important concrete examples of why training programs like OPT should be maintained. 

Why Did the Federal Judge Rule in Favor of OPT?

Although more of Judge Walton’s reasons for upholding the OPT programs will be unpacked in his upcoming statement of reasoning, he has made this much clear: “OPT benefits the American educational system, as well as the U.S. economy as a whole. By providing term employment to highly skilled recent graduates, OPT ensures that this talent pool grows the American economy, providing benefits to all workers in the United States”.

Not only do Judge Walton, the National Association of Manufacturers, the U.S. Chamber of Commerce, and the Information Technology Industry Council feel strongly that OPT benefits the U.S., but other influential technology companies like Tesla, Google, Facebook, and Apple have also weighed in on the issue. They’ve made their favorable disposition towards the OPT program and its highly skilled and qualified participants clearly clear. These companies contend the OPT program actually expands market opportunities for U.S. citizens, rather than diminish them. 

What Does this Mean for Immigrants in the U.S.?

For now, Judge Walton’s ruling means OPT will continue in an unbroken fashion unless some other future developments determine otherwise. 

WashTech’s lawyer John Milano has made WashTech’s intention to appeal the ruling clear. But in the meanwhile, F1 visa holders and OPT participants can rest assured that not only do many influential groups and companies support the OPT program but thus far even the Trump Administration has upheld the 2016 OPT STEM extension. Trump is also rapidly running out of time to amend OPT rules otherwise. 

The fact that Judge Walton settled the case with a summary judgment indicates he was so confident of the legitimacy of the OPT program and the DHS’s authority to operate it that a full trial was considered unnecessary. By issuing a summary judgment, he basically confirmed there wasn’t enough reason to discuss or argue the matter. This is a huge boost of confidence and should give you some peace of mind. 

It seems WashTech is fighting a losing battle. They will need to present highly compelling evidence to change the direction of the situation. But only time will tell for certain. 

What Happens Next?

By January 29, 2021, Judge Walton will release a statement explaining the reasoning behind his ruling. This will finalize the Washington Alliance of Technology Workers Union vs. U.S. Department of Homeland Security et al. case. However, since WashTech has indicated its plans to appeal, we can anticipate further developments here. 

Conclusion

Judge Walton’s ruling is great news for OPT participants and F1 visa holders. It should also be considered a victory for the larger immigrant community in the U.S.

Even if WashTech chooses to appeal the case, OPT participants can be confident that their work is widely celebrated by large companies in the United States. Until now their presence has also been definitively approved and supported by the Federal Court. 

This year more than 223,000 OPT applications were approved by the U.S. Citizen and Immigration Services (USCIS). Judge Walton’s ruling suggests that OPT will remain a viable option for aspiring students to gain professional experience in the United States. In the middle of the turbulent times COVID-19 has brought for immigrants in the U.S., this is a sliver of bright news.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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