OPT litigation update

Litigation challenging the legality of the Optional Practical Training (OPT) program for F-1 students remains pending in federal court. On Aug. 6, the judge established deadlines for the progress of the litigation, which covers both the 24-month extension for STEM students and the initial one-year OPT program.

Key dates:

• Sept. 27, 2019. The plaintiffs, the Washington Alliance of Technology Workers (“WashTech”), who are challenging the OPT program, must file their motion for summary judgment by Sept. 27. The motion will ask the judge to rule in their favor without a full trial. Their main argument is that the Department of Homeland Security (DHS) lacks statutory authority to allow F-1 students to work in the U.S.
• Oct. 25, 2019. The government’s own motion for summary judgment is due Oct. 25. Additionally, three business organizations—the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Information Technology Industry Council—have been allowed to submit arguments in support of the OPT program because they do not believe the government will fully defend the OPT program. Their motion is also due Oct. 25.
• March 6, 2020. The judge set March 6 as a target date for his ruling on the motions and scheduled a status conference on that date.

Background: WashTech first filed suit against the government in 2014, challenging both the original 1992 OPT program and the 2008 rule introducing a 17-month extension for STEM students (STEM-OPT extension). The court dismissed the case, but ruled that the 2008 regulation was invalid because the Bush administration had failed to undergo the required notice-and-comment rulemaking process. However, the court allowed the Obama administration to issue the 2016 STEM-OPT regulation, which replaced the earlier rule and lengthened the STEM-OPT extension to 24 months. Soon after, WashTech challenged the 2016 regulation in court. Last month, the court ruled that WashTech could challenge the entire OPT program.

OPT participation has grown significantly over the years, with 1.4 million students on OPT between 2004 and 2016. Participation in the STEM-OPT extension increased by 400% between 2008 and 2016.

BAL Analysis: While the OPT and STEM-OPT litigation is being closely watched, it is important to note that the rules that allow eligible F-1 students to apply for work authorization under the OPT and STEM-OPT extension programs remain in place today. The judge has set a target date of March 6 to rule on the parties’ motions for summary judgment and decide whether the case will proceed to trial. If the judge grants summary judgment to one side, the losing party is likely to file an appeal. If the judge denies both motions, the case will proceed to trial. The judge could also grant partial summary judgment to either or both parties and issue a ruling on some issues, but leave others for trial. BAL continues to closely monitor the litigation and will provide updates on significant developments.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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