Supreme Court nixes challenge to OPT under F-1 visa

The US Supreme Court will not take up a legal challenge against a visa program that allows foreign students who graduate from US colleges to work in the country for up to three years.

The apex court, in an order Monday, indicated it will not hear a union’s lawsuit against the Optional Practical Training program, which last year benefited more than 117,000 graduates of science, technology, and engineering programs with F-1 visas.

Indian students have already bagged more than 90,000 US F-1 visas this year.

READ: Everything about premium processing for F-1 visas (March 21, 2023)

Washington Alliance of Technology Workers, or WashTech, had in part argued the US Department of Homeland Security didn’t have the authority to create the program without express congressional approval. The union also said the program creates unfair competition among workers.

Optional Practical Training, or OPT, gives graduates a chance to get practical employment experience in their industries for one year, which can then be extended for an additional 24 months for those in certain STEM fields.

A 2008 extension gives international students hoping to pursue a long-term career in the US multiple chances at the annual lottery for a limited number of H-1B specialty occupation visas.

US colleges say OPT is an important tool for attracting international students interested in practical work experience, and employer groups say the program also expands the pool of available talent with critical skills.

READ: F-1 visa delays hurt many meritorious Indian students (August 3, 2021)

The union first went after OPT, in 2014, when it sued over a related federal rule.

A federal court in 2015 found that Homeland Security had not properly followed regulatory proceedings to create the rule. But the court decision allowed the agency to go through that regulatory process, resulting in a rule codifying the current OPT program that took effect in May 2016.

WashTech sued over that regulation shortly thereafter, and the lawsuit had worked its way through courts.

The US Court of Appeals for the District of Columbia Circuit upheld the program in 2022, and the Supreme Court’s decision to not hear the case effectively ends the union’s challenge.

In 2020, when COVID-19 had started to spread, four Republican senators, including Sen. Ted Cruz, of Texas, and Sen. Chuck Grassley, of Iowa, wrote to the Trump administration asking that the then-president use executive power to suspend OPT to protect the US economy.

“While the merits of such a program are subject to debate, there is certainly no reason to allow foreign students to stay for three additional years just to take jobs that would otherwise go to unemployed Americans as our economy recovers,” the senators wrote.

The National Association of Manufacturers, the US Chamber of Commerce, and the Information Technology Industry Council argued in a brief that the case doesn’t merit the court’s review.

Requirements for the STEM extension, they said, are even more extensive, such as a formal training plan that identifies learning objectives. The employer must also attest that it has sufficient resources to train the student, and that no US workers will be sidelined as a result.

National Association of Manufacturers Chief Legal Officer Linda Kelly said the OPT program will remain “a vital pipeline” for graduates in STEM fields to pursue hands-on work. It will also allow manufacturers to fill critical skilled positions, she said in a statement on the court’s decision.