Foreign Grad Work Program Eyed for Expansion With End to Lawsuit

The US Supreme Court’s decision to pass on a challenge to a work program for foreign graduates of US colleges and universities will likely lead to calls for an expansion of that program.

The high court’s rejection of the case leaves in place a lower court ruling affirming the Department of Homeland Security’s authority to implement Optional Practical Training for science, technology, engineering, and math fields. It also effectively maintains the status quo for F-1 student visa holders who pursue the program, often as a bridge to the H-1B specialty occupation visa.

Numerous US employers—including chemical companies, semiconductor manufacturers, and other technology firms—also have come to rely on OPT to hire workers with in-demand skills.

Now, colleges and businesses will likely urge the Biden administration to add to the areas of study eligible for the program.

“Employers are definitely taking a deep breath this morning knowing that they’re going to be able to maintain not only the employees they have on OPT but also the recruitment that is currently happening,” Kelli Duehning, a partner at Berry Appleman & Leiden LLP, said after the Supreme Court’s decision. “I see us thinking more creatively about how we can expand the OPT program within its legal limits.”

DHS Authority Questioned

More than 117,000 students participated in OPT in 2021, according to Immigration and Customs Enforcement, the DHS component that administers the program. OPT allows F-1 student visa holders to work for 12 months in the US post-graduation, with the option to seek an extension for up to 24 months if they earned a degree in a designated STEM field.

The Washington Alliance of Technology Workers, which represents US workers in STEM fields, had sued to overturn the STEM extension, arguing that DHS exceeded its authority when the agency expanded the duration of work eligibility in 2008 for STEM jobs.

A federal judge found in 2015 that the agency hadn’t gone through proper notice-and-comment rulemaking, but upheld its legal authority to create the STEM extension. Plaintiffs brought their latest legal challenge after DHS issued 2016 regulations to codify the extension.

The US District Court for the District of Columbia in 2020, and the US Court of Appeals for the District of Columbia Circuit last year, affirmed the legality of the program.

In seeking Supreme Court review, the Washington Alliance of Technology Workers got backing from conservative groups and GOP lawmakers who have previously called for curtailing OPT.

Calls to Expand

As US colleges and universities recover from sharp enrollment declines during the Covid-19 pandemic, OPT has been a vital tool to attract international students, said Craig Lindwarm, vice president of governmental affairs at the Association of Public and Land-Grant Universities.

“We know being able to offer practical training outside the classroom is a key component to education and our competitiveness for international students,” he said.

The Biden administration already has added 30 fields of study over the past year to the designated list of programs whose graduates are eligible for the 24-month STEM extension. The additions were part of a larger push by the administration to lower barriers to immigration for workers with key science and technology skills.

DHS received nominations for 120 unique fields of study to be added to the STEM list last year in response to plans to add new programs. Immigration advocates in particular have urged that nursing be included because of the severe labor shortage in that area.

Jon Baselice, vice president of immigration policy at the US Chamber of Commerce, said he expects new programs to be added in developing fields like artificial intelligence.

“No one thought about adding generative AI programs 20-30 years ago at the nation’s top universities,” he said. “Those kinds of things you’re going to see more of.”

Further Extension Unlikely

John Miano, counsel for the plaintiffs in the case, said the appeals court decision on OPT opened the door for DHS to rewrite restrictions on any visa after an individual enters the country.

“There is no longer any distinction between work visas and non-work visas because the courts have held DHS can allow work on any visa,” he said.

But David Jones, a managing partner at Fisher & Phillips LLP, said it’s unlikely there would be further attempts to extend the duration of OPT work authorization beyond the current three years.

“At that point you’re out of the education phase of your employment pretty clearly,” he said. “But the fact that they passed on this one is a good sign for the future of OPT.”

The case is Washington Alliance of Tech. Workers v. DHS, U.S., No. 22-1071, cert. denied 10/2/23.