Judge rules in favour of DHS in STEM OPT litigation

The ruling is the latest development in a long-running legal dispute between the DHS and the Washington Alliance of Technology Workers Union (Washtech).  

“Washtech has said that its members have been injured by the OPT 2016 Program Rule”

The dispute centres around the 2016 OPT Program Rule which allows F-1 STEM students who elect to pursue 12 months of OPT in the US to extend the OPT period by 24 months. 

Washtech has said that its members have been injured by the rule because the program “increase[s] competition injury from alien guestworkers on OPT”. 

Back in June 2016, after the DHS had implemented the rule, Washtech filed a lawsuit with the US District Court for the District of Columbia, saying that the policy of allowing non-student aliens to remain in the US and work on student visas exceeded DHS authority. 

However, last week Reggie B. Walton, district judge for the US District Court for the District of Columbia ruled in favour of the DHS, saying that it acted within its authority. Washtech is said to be appealing the decision. 

OPT is popular with international students and employers – in 2019/20 some 223,539 students participated in the program. 

In November 2019, NAFSA issued a statement warning that the loss of OPT would harm the US economy and undermine leadership in international education. 

The organisation helped to coordinate a response where 118 public and private universities and colleges filed an amicus brief in the litigation to defend the program and its extension. 

“Our nation’s economy and educational institutions are undeniably enriched by the presence of talented, diverse, and motivated international students and OPT is a key factor in attracting those very students,” Esther D. Brimmer, executive director and CEO, NAFSA said in the statement.  

“The US is now in a global competition for international students and scholars. To ensure that we continue to benefit from these individuals and their investments in our communities, we must maintain this time-tested program.”

OPT has had a tumultuous few years. In 2020 four influential senators penned a letter to president Donald Trump, urging him to suspend issuing guest worker visas – including students on OPT  until “national unemployment figures return to normal levels”. 

And last month international students reported that significant processing delays had resulted in them losing job offers. 

These students told The PIE News that they were ready to mount a legal challenge against the US Citizenship and Immigration Services if they are forced to leave the US due to delays around processing.

Last week the American Council on Education sent a letter to David Pekoske, acting secretary of the DHS, asking him to grant conditional approval for I-765 OPT applications that have been delayed due to the lockbox situation so students do not miss their start date for employment or risk falling out of status. 

“We are concerned that students and graduates will miss employment start dates”

“We are concerned that students and graduates will miss employment start dates and could fall out of status due to these delays,” said ACE’s president Ted Mitchell.

“These delays are especially concerning given the ongoing delays from USCIS on OPT processing, which started the summer of 2019 before the Covid-19 emergency.

“As you know, international students and their enrolment in US institutions have an enormous economic impact on the overall U.S. economy.”

NAFSA has found that the overall economic impact generated by international students had declined to to $38.7 billion in 2019, $1.8bn less than 2018, he added.

ACE made six requests to USCIS, including the granting of conditional approval for I-765 OPT applications and the conditional extension for STEM OPT applicants to extend their existing work authorisation if their applications have been delayed. 

The organisation also called on USCIS not to penalise applicants if they submitted applications to the wrong address because the lockbox address had suddenly changed, and asked them to coordinate with DHS’ Student and Exchange Visitor Program to ensure that SEVIS records and pending STEM OPT requests are not improperly cancelled or terminated. 

“If an OPT or STEM OPT application is rejected, but because of receipt notice and processing delays the student is beyond regulatory filing timeframes by the time the student is made aware of the rejection, accept a refiled application that cures the deficiency, despite being outside the regulatory filing windows,” ACE’s list of requests to USCIS said. 

ACE also asked that USCIS allow applicants to submit I-765 applications up to 180 days (rather than 90 days) before the I-20 program end date (standard post-completion OPT applicants) or the expiration date of the student’s current OPT employment authorisation (STEM OPT extension applicants), given that processing time is closer to five months rather than a standard 90 days.

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