Republican lawmakers in the Senate and House are rallying behind a lawsuit to end a program that allows a student to work on an F-1 visa after graduation for up to three years. They are urging the U.S. Supreme Court to hear the appeal of a group of tech workers challenging the program's legitimacy.
If the Supreme Court agrees to hear the case from the Washington Alliance of Technology Workers (WashTech) and rules in its favor, it could mark the end of the Optional Practical Training (OPT) program. A decision could come this fall, if the court picks up the case. WashTech is a Washington state labor organization of the Communications Workers of America Union, AFL-CIO.
At the heart of the dispute is the contention from tech workers that the OPT program creates unfair competition in the labor market. But the case also raises a broader question about the program's continued existence without explicit authorization from Congress. Introduced in the early 1990s, OPT originally allowed students to work for one year, but presidential executive orders have extended that allowance to three years for science, technology, engineering and math (STEM) students.
The lawsuit argues that the OPT program is "entirely the creation of regulation" and "is now the largest alien guestworker program in the immigration system."
Now, U.S. Sen. Ted Cruz (R-Texas) and Republican colleagues Senators Mike Lee of Utah, Tom Cotton of Arkansas, Mike Braun of Indiana and Katie Britt of Alabama are urging the Supreme Court to hear the case.
Optional Practical Training limits
The lawsuit, first filed in 2016, has "become much bigger than it was," said John Miano, the attorney representing WashTech and a former programmer.
John MianoAttorney, Washington Alliance of Technology Workers
Federal laws are now coming from federal agencies instead of Congress, Miano said, and "in theory, the power of an agency is limited to what Congress delegates to it." The Republicans supporting the case make similar arguments in their briefs.
The Republican senators contend that the Department of Homeland Security (DHS) is exploiting the OPT program to circumvent the annual H-1B visa cap of 85,000. Unlike the H-1B visa, OPT does not have a numerical cap. The utilization of OPT has increased from 25,000 in 2007 to 204,000 in 2017 and nearly 165,000 in 2021.
Cruz and the other senators argue that "without regard for Congress or American workers, DHS devised a workaround where F-1 student visa holders wouldn't actually need to be students at all and would also be given authority to work legally in the United States for years after completing any purported studies."
Eleven states -- Kansas, Alabama, Idaho, Indiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Tennessee and Virginia -- have joined the lawmakers in supporting the case. These states assert that the OPT program adversely affects their constituents, as they must compete with F-1 visa holders for jobs.
In support of the case, 31 U.S. House members, all Republicans, filed a brief.
While industry groups have yet to file briefs opposing the case, previous court filings provide an indication of their stance. In 2021, FWD.US, an industry lobbying group focused on immigration, submitted a brief arguing that high-tech companies face significant challenges in filling STEM positions, and OPT plays a crucial role in addressing this shortage. The brief was endorsed by Amazon, Apple, Cisco, Google, Salesforce, Facebook and Microsoft.
Controversy over the OPT program erupted in tandem with the increasing demand for H-1B visas and its use in offshore outsourcing. As H-1B visa demands increased, the OPT program's timeline was extended. In 2008, President George W. Bush added 17 months to the OPT program for students with STEM degrees. In 2016, President Barack Obama extended the timeline to 36 months or three years. The reason for both extensions was to give international students a better chance at winning the H-1B lottery. With the maximum OPT extension, participants have three chances to enter the visa lottery.
The U.S. Court of Appeals for the D.C. Circuit ruled last fall, 2-1, against WashTech. But a dissenting view, in part by Judge Karen LeCraft Henderson, wrote the F-1 statute "plainly does not delegate the asserted authority" to DHS for the OPT program.
Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.