D.C. Court of Appeals upholds Optional Practical Training program, STEM extension

A three-judge panel with the U.S. Court of Appeals for the D.C. Circuit ruled Tuesday to uphold the legality of the Optional Practical Training (OPT) program, including the STEM extension.

OPT allows F-1 students who graduate from a U.S. university to work for 12 months in their field of study and for an additional 24 months if they have a degree in science, technology, engineering or math (STEM).

In her opinion, Judge Cornelia Pillard wrote that OPT is consistent with post-graduation programs that date back more than 70 years. In that time, Congress has amended Immigration and Nationality Act (INA) a number of times, but has never curbed executive authority to allow F-1 students to stay in the country for post-graduation training, Judge Pillard said.

Judge Pillard was joined in her opinion by Judge David Tatel. Judge Karen LeCraft Henderson agreed on a standing question but dissented on the merits.

Litigation challenging the OPT program dates back to 2014. In 2020, a federal district court ruled that OPT was lawful, and the plaintiffs in the case, the Washington Alliance of Technology Workers (WashTech), appealed to the D.C. Circuit Court.

Business organizations have shown strong support for OPT. Last year, 60 U.S. companies and trade organizations signed a friend-of-the-court brief urging the appeals court to protect OPT and saying the program helps employers fill “persistent vacancies” in STEM positions.

BAL Analysis: Tuesday’s ruling marks a significant legal victory for supporters of OPT, though WashTech will likely pursue further judicial review. BAL will continue to follow the litigation and will provide updates on important developments relating to OPT.

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

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