Update on Federal Lawsuit Challenging the F-1 OPT Program

On November 21, 2019, over 100 public and private colleges and universities from across 29 states and the District of Columbia, filed an amicus curiae brief in defense of the Optional Practical Training (OPT) program for foreign students in the federal litigation case, Washington Alliance of Technology Workers Union vs. U.S. Department of Homeland Security before the U.S. District Court for the District of Columbia. Similarly, on November 25, 2019, over 50 businesses and 11 business associations filed an amicus curiae brief in recognition of the importance of the OPT and STEM OPT programs to the U.S. economy, stating “[c]ompanies, including amici, consistently struggle to fill STEM jobs and often face significant and persistent vacancies...Eliminating these programs would cause substantial and unnecessary hardship to amici, their employees, and the U.S. economy.” The Washington Alliance of Technology Workers (“WashTech”) - a union representing U.S. technology workers - filed a lawsuit challenging the Department of Homeland Security’s statutory authority to grant work authorization under both the 24-month STEM OPT rule and the standard 12-month post-completion OPT rule. WashTech claims that its workers suffered harm from direct competition with students engaged in OPT for jobs with U.S. employers.


On November 25, 2019, the Department of Homeland Security (“DHS”) filed a motion for summary judgment to dismiss the lawsuit, arguing that WashTech lacks standing because it has not provided sufficient evidence to show that its members are currently competing with F-1 students receiving OPT. In addition, DHS argued that the OPT and STEM OPT rules are lawful and that the agency has adopted a reasonable and longstanding interpretation that the F-1 student provision allows for employment of students after graduation and during a period of practical training - “nothing in the F-1 statute prohibits a foreign student from accepting employment in connection with his or her course of study while in the United States.”


A status conference before the District Court will be held on May 1, 2020. We will continue to monitor the federal litigation case and will provide an update when information becomes available.