In a ruling on October 4, 2022, the US Court of Appeals for the District of Columbia has upheld the legality of the US Optional Practical Training (OPT) program, including the STEM extension.
Technology trade union, the Washington Alliance of Technology Workers (WashTech), has pursued a legal challenge against OPT since 2016, claiming the Department of Homeland Security lacked the authority to establish and expand it.
The Appeals Court has now rejected the appeal, upholding a previous ruling in favour of the DHS and its authorization of a limited period of post-coursework OPT, if recommended and overseen by the school and approved by DHS, for qualifying students on F-1 visas. OPT includes an extension for students in science, technology, engineering, or mathematics (STEM) fields of an additional 24 months beyond the OPT period of 12 months.
The court also held that authorizing foreign students to engage in limited periods of employment for practical training is a valid exercise of DHS’s authority, where the training is as their schools recommend and according to the terms set out in the rule.
The court also noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.”
OPT programs are hugely popular, allowing F-1 students who graduate from a US university to work for 12 months in their field of study and for an additional 24 months if they have a degree in a STEM subject.
The legal defence of the programs was supported with written submissions to the court by presidents of 151 different universities, citing the program as a “job creator” and a “critical role in experiential learning”.
The decision provides further assurance that graduates will be able to undertake OPT and STEM OPT programs.
In January this year, the Department of Homeland Security declared an 22 additional academic fields to be eligible for the STEM OPT extension, and launched a consulation on further expansion of eligible fields.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
