D.C. Circuit declines to reconsider ruling upholding OPT

The U.S. Court of Appeals for the D.C. Circuit has declined to reconsider an October ruling upholding the legality of Optional Practical Training programs.

Key Points:

• On Oct. 4, a three-judge D.C. Circuit panel ruled 2-1 that OPT and the 24-month STEM extension were legal under the Immigration and Nationality Act.
• The plaintiffs in the litigation, the Washington Alliance of Technology Workers (WashTech), asked for an “en banc” hearing before the full D.C. Circuit.
• The D.C. Circuit declined to rehear the appeal, with two judges dissenting.
• WashTech now has the option of appealing to the U.S. Supreme Court. However, even if they seek review, the Supreme Court accepts a very limited number of high-profile and precedent-setting cases per year. Only one appeals court has now ruled on this issue, meaning there is no “circuit split” to resolve in the case in question.

Background: 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. The litigation challenging OPT dates back to 2014. Business organizations have shown strong support for OPT, with 60 U.S. companies and trade organizations signing a friend-of-the-court brief urging the D.C. Circuit to protect OPT and saying the program helps employers fill “persistent vacancies” in STEM positions.

BAL Analysis: The D.C. Circuit’s decision not to rehear the OPT appeal is a welcome development, but WashTech may pursue further judicial review. BAL will continue to follow the litigation and will provide updates on important 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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