In Washington Alliance of Technical Workers v. DHS (WashTech), the D.C. Circuit held that optional practical training programs (OPT) that allow students on the nonimmigrant F-1 visa to work in the United States for up to three years following their graduation are valid. This decision comes after eight years of litigation.

In 2014, WashTech, an alliance of technical workers, commenced litigation against the Department of Homeland Security (DHS), asking the court to declare OPT illegal. Eventually, STEM OPT was added to the case.

WashTech argued that DHS did not have the authority to authorize this type of employment. It also argued that DHS was harming U.S. workers by allowing more highly skilled workers to remain in the country than otherwise would be allowed under the Immigration and National Act (INA).

The D.C. Circuit disagreed. In a 2-1 decision, the three-judge panel explained that practical training for international students started more than 70 years ago, in 1947. The program was no secret to Congress and, the Court pointed out, Congress had acquiesced to the program throughout the years – never modifying the INA to eliminate the program and never questioning DHS’ promulgation of the OPT rules. The Court noted that DHS’ statutory authority to set the time and conditions of an F-1 student’s stay “amply supports” OPT. It also noted that OPT is an important part of a student’s education because it cements the student’s classroom learning and ensures that students can use their knowledge effectively. Finally, the Court explained, OPT programs are highly regulated to ensure that the work and training are directly related to a student’s major area of study and are overseen by a student’s university.

More than one million students come to the United States each year on F-1 student visas. This benefits the U.S. economy and the ability to participate in OPT is an important incentive for international students to choose to come to the United States for college or graduate work. Many of these students graduate from STEM study with skills that are needed in the U.S. workforce.

If the case is appealed, Jackson Lewis attorneys will provide an update. For now, the long fight over the validity of OPT has concluded.