The legal threat to optional practical training (OPT) in STEM (science, technology, engineering and mathematics) fields is back. American companies and universities have wasted no time championing the ability of international students to work for up to 36 months in a STEM specialty on OPT, seeing it as vital to attracting students and retaining talent in America. Yet American startups, big tech companies and educators cannot rejoice in yet another threat to international education in the United States.
In An order On November 30, 2020, U.S. District Judge Reggie B. Walton ruled against WashTech (Washington Association of Technology Workers) in his lawsuit to declare elective practical training and OPT STEM illegal (the rule released in 2016) . WashTech appealed the final judgment to the United States Court of Appeals for the District of Columbia.
In an opinion issued on Jan. 28, 2021, Justice Walton wrote: “Not only the DHS [Department of Homeland Security] have broad delegated authority to enforce the INA [Immigration and Nationality Act] and enact rules governing non-immigrants, but “the DHS interpretation of F-1 – to the extent that it permits employment for training purposes without requiring continuing education – is ‘long-standing’ and entitled with deference ”. “Since at least 1947, [the Immigration and Naturalization Service (‘INS’)] and DHS have interpreted immigration laws to allow international students to work for the purpose of practical training.
Justice Walton referred to an earlier opinion of the court and continued: “This long-standing interpretation of DHS is further reinforced by the fact that” Congress has repeatedly and substantially amended the relevant statutes without disturbing [DHS’s] interpretation ”allowing practical post-graduation training. [Washtech II, 156 F. Supp. 3d at 143.] “Since 1952, Congress has repeatedly amended the provisions governing non-immigrant students. “. . . And, ‘[d]During this period, Congress also imposed various labor protections for domestic workers.[,]’again’ Congress never repudiated the INS[’s] or the interpretation of DHS allowing international students to undergo post-completion practical training. ‘”
“Accordingly,” Walton J. wrote, “this Court agrees with the Court’s conclusion in Washtech II that”[b]leave the agency’s interpretation of the F-1 intact for almost [seventy] years, despite these significant revisions, Congress has strongly signaled that it finds the interpretation of DHS reasonable. ‘ . . . WashTech’s arguments to the contrary are not convincing.
“For the foregoing reasons, the Court finds that WashTech has standing to bring this action under Article III and that DHS did not exceed its statutory authority in enacting the OPT program rule of 2016. Accordingly, Court dismisses WashTech’s motion for summary judgment, allows government and intervenor summary judgment motions, and dismisses WashTech’s motion to strike.
In 2019, three trade associations – the National Association of Manufacturers (NAM), the US Chamber of Commerce and the Information Technology Industry Council – intervened in the case “to protect the rights of international students,” according to a interview with Paul Hughes of McDermott Will & Emery, who represented the associations. These are the “Intervenors” referred to in the judge’s opinion.
On June 11, 2021, in response to WashTech’s appeal, NAM and other intervenor-respondents filed a brief defending Justice Walton’s opinion and explaining why they believed WashTech’s arguments were incorrect. “WashTech would like this Court to find that every presidential administration since Harry Truman has acted illegally in allowing international students to undergo limited-time practical training after graduation from the classroom,” the professional associations wrote. “If that seems implausible, it should be: DHS has ample power to authorize the employment of non-citizens, it has used that power in a reasonable manner here, and the OPT is not excluded by the legal definition of F-1 status. The program must be maintained.
Professional associations note that WashTech prevailing in court would overturn much more than US policy towards international students. “WashTech is also wrong to assert that DHS does not have the power to authorize any non-nationals to work, beyond those already authorized by law to work ”, write the professional associations. “On the contrary, DHS is empowered both generally to make regulations and specifically to set conditions for the admission of non-immigrants, and Congress has enacted in law a reference to non-citizens” permitted to be thus employed ”. . . speak [Secretary of Homeland Security]”(8 USC § 1324a (h) (3)) – a provision which squarely confirms the power of DHS to grant work authorization to categories of non-citizens.”
“In summary, the OPT program easily satisfies the requirement that regulations be” reasonably linked to the objectives of the enabling legislation “in addition to being fully consistent with the INA and supported by more than seven decades of executive practice. and ratification by Congress “, according to professional associations. “WashTech presented no basis to cancel it. “
On June 18, 2021, FWD.us, 47 companies and 12 industry associations filed an amici curiae brief in support of the defendants-respondents [DHS et al.] and stakeholders. Signatories among companies and organizations included Amazon, Apple, Box, Inc., Business Roundtable, Compete America, Facebook, Google, Intel Corporation, Microsoft, National Immigration Forum, National Venture Capital Association, Netflix, PayPal, Semiconductor Industry Association, Texas Instruments and others.
“The OPT and STEM OPT programs are helping to address the STEM workforce shortage by creating a recruiting opportunity and a critical talent pool to meet the needs of businesses across industries,” according to the brief. business and associations. “They provide an attractive prospect for foreign-born students who wish to gain additional practical knowledge in their fields of study in the United States after graduation, thereby enhancing the ability of the United States to compete for these. students with competing countries. This creates opportunities for highly qualified foreign-born students to work for US companies on a short-term basis, complementing their formal education with hands-on training.
The brief cited research by the National Foundation for American Policy on the large number of job vacancies in IT professions and recent research by economist Madeline Zavodny which showed that enrolling more international students increases the number of American students graduating in science and technology in the average American university. An earlier study by Zavodny concluded: “There is no evidence that international students participating in the OPT program reduce employment opportunities for American workers.
On June 21, 2021, the Alliance of Presidents on Higher Education and Immigration and 151 colleges and universities filed an amicus curiae brief. Universities signing the dossier included Boston University, Carnegie Mellon, Dartmouth, Georgetown, Harvard, MIT, NYU, Princeton, UC-Berkeley, Yale and others.
The brief cited the educational benefits of OPT and OPT STEM. “This marriage of theory and practice sets American graduates apart and prepares them to meet the greatest challenges of our time with creativity and common sense,” according to the brief.
“As New Jersey higher education leaders have noted, including Princeton University President Christopher Eisgruber, OPT” enables students to complement their education with valuable experiential learning and training. on the job early in their careers, “the file continued.” The Associate Dean for Faculty and Graduate Studies at Georgetown University put it this way: “Even our best students cannot learn much from things in the classroom; they should then test and expand on those lessons in the real world.The opportunity to undertake internships, employment, or research is critical to their development as future leaders in a more globalized global community for generations to come. come.'”
The brief cited research from NAFSA: Association of International Educators on the $ 38.7 billion contribution of international students to the U.S. economy in the 2019-2020 academic year, supporting approximately 415,000 jobs in America. He also discussed research from Business Roundtable which modeled a 60% drop in OPT and found that such a drop in elective practical training would result in a reduction of 255,000 jobs held by native-born workers.
WashTech does not appear to have the facts on its side, but its persistence maintains the focus on OPT and OPT STEM, which may cast doubt on the continuation of these programs. From the perspective of those who support WashTech’s point of view, discouraging international students from attending U.S. universities by raising doubts about the future existence of the OPT can be a victory in itself. This is not good news for those who support the increase in the number of international students in America.