October 19, 2021

Volume XI, Number 292

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October 19, 2021

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October 18, 2021

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Optional Practical Training Program for F-1 students (OPT) Is Not Illegal, Judge Rules

The Optional Practical Training Program for F-1 students (OPT) is not illegal, a federal judge has ruled in a case brought by Washington Alliance of Technology Workers (Washtech), a union representing workers in science, technology, mathematics, and engineering.

Criticism of OPT; Increased Scrutiny

Despite evidence that OPT is good for the economy and does not limit job opportunities for U.S. workers, opponents have questioned the program for years. In 2012, Senator Charles Grassley (R-IA) asked the Government Accountability Office (GAO) to investigate whether the program might undermine U.S. workers. Similarly, the Trump Administration has talked about reforming the OPT program since 2017, when a new proposed rule “intended to reduce fraud and abuse” appeared on the 2017 DHS Regulatory Agenda. While no large-scale reforms have materialized, the Department of Homeland Security (DHS) has increased scrutiny of the programs, announcing increased compliance inspections at worksites and talking about targeting Designated Student Officials (DSOs) at universities who approve OPT.

Litigation

Washtech has battled OPT through litigation since 2014 in the federal district court for the District of D.C. Washtech asked to have OPT declared illegal. DHS has been in the position of defending a program that the Administration did not favor.

In 2019, intervenors joined the case to vigorously defend the program. The intervenors included the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council. Amicus briefs also were filed in favor of OPT by public and private universities and colleges.

On November 30, 2020, Judge Reggie B. Walton denied Washtech’s claim that OPT was illegal. He is expected to issue a full memorandum and decision by the end of January 2021. Because the November 30 decision is not a final order, it is not yet subject to appeal. This means that OPT likely will outlive the current Administration. Immigration advocates are hopeful.

OPT draws students from all over the world to American universities and colleges. Given that these institutions recently have seen a 43% drop in foreign student enrollment, Judge Walton’s decision could not be more timely.

Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 352
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About this Author

Peter Reca, Jackson Lewis Law Firm, White Plains, Labor and Employment Law Attorney
Associate

Peter A. Reca is an Associate in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

914-872-8060
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