This week, a federal district court issued a decision in Washtech (Washington Alliance of Technology Workers v. DHS), a lawsuit brought, in part, by the Immigration Reform Law Institute, to prevent foreign students from having an opportunity to gain meaningful practical experience in the United States.

The court invalidated the Department of Homeland Security’s (DHS) 2008 rule, which permits F-1 students to receive up to a seventeen-month extension of their post-graduation Optional Practical Training (OPT), for a maximum of twenty-nine months, if their field of study is in a designated Science, Technology, Engineering or Math (STEM) field and their employment meets certain requirements. The court’s decision is based on a procedural deficiency: DHS did not lawfully issue the 2008 rule because the agency failed to provide the public with notice and an opportunity to comment in advance of issuing it. DHS explained at the time that the STEM OPT extension was necessary because it would benefit the economy by reducing the disruption to U.S. high-tech employers that occurred when these F-1 STEM-degree graduates reached the end of their twelve-month OPT and their employers could not receive an H-1B classification for them to remain in the United States as high-skilled workers because of the numerical limitation on H-1B visa numbers. Importantly, on the substance of the rule, the court found that the rule is not unreasonable. The court had a problem only with the procedure DHS followed to issue the 2008 rule—and had no problem with the reasonableness of DHS’s interpretation of the F-1 student classification as including employment for training purposes, and, specifically, providing additional training time for graduates of designated STEM fields of study.

The court also invalidated DHS’s later modifications of the rule (made through website postings), that expanded the list of designated fields of study eligible under the rule. The court stayed its order until February 12, 2016 to allow DHS to correct its procedural mistake, i.e., submit the 2008 rule “for proper notice and comment.”

Even though the court invalidated the 2008 rule, many of the court’s conclusions are very favorable to DHS:

  • The court rejected Washtech’s claim that those who had graduated could not be F-1 students. The court found that Congress acquiesced in DHS’s interpretation of the statutory term, “student” as encompassing a person who has completed the academic degree program.
  • The court also upheld DHS’s interpretation of the law as permitting post-graduate OPT. The court rejected Washtech’s claim that by permitting OPT, DHS was circumventing Congress’s restrictions in the H-1B law, including numerical limits and preventing adverse impacts on wages and working conditions. The court said DHS’s interpretation was entitled to judicial deference as “longstanding” and never repudiated by Congress despite repeated, substantial amendments to laws concerning F-1 students and H-1B workers. “By leaving the agency’s interpretation of F-1 undisturbed for almost 70 years, notwithstanding these significant overhauls, Congress has strongly signaled that it finds DHS’s interpretation to be reasonable.” This is significant because Washtech and others opposed to OPT have tried to mischaracterize these students as workers who should not be employed unless they receive an H-1B specialty worker occupation classification.
  • The court also found that DHS has a broad delegation of authority from Congress, which includes the authority to establish terms and conditions under which F-1 students can be employed. The court noted that one of the goals Congress established for DHS is to “ensure that the overall economic security of the United States is not diminished by efforts, activities and programs aimed at securing the homeland.” The court also recognized that “a significant purpose of immigration policy is to balance the productivity gains that aliens provide to our nation against the potential threat to the domestic labor market.”
  • The court rejected DHS’s issuance of the 2008 rule because the administrative record did not establish “good cause” for dispensing with advance notice and comment—not because of any question as to the agency’s authority to authorize a STEM OPT extension, including considering the economic impact of extending the OPT program.

The Administration already announced its intention to improve the OPT regulations. The DHS Secretary, in his November 2014 memo directing new policies and regulations to support U.S. high-skilled businesses and workers, directed the development of regulations for notice and comment to expand the degree programs eligible for OPT and extend the length and use of OPT while “ensuring that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.” The court’s order may be the impetus the Administration needs to issue proposed regulations more quickly for notice and comment. The proposed regulations most likely would supersede the 2008 rule, hopefully, with more far-reaching changes that will benefit foreign students as well as U.S. employers and all workers, whether native- or foreign-born.

Photo by Chris Potter.

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