Work permits for U.S. student visa holders upheld by appeals court

(Reuters) – A divided U.S. appeals court on Tuesday upheld the federal government’s decades-old practice of allowing student visa holders to remain in the U.S. and work after graduation, rejecting an advocacy group’s claims that the program displaces American tech workers.

The U.S. Court of Appeals for the D.C. Circuit in a 2-1 decision said a program most recently updated in 2016 allowing international students to work in their field of study for up to three years was within the Department of Homeland Security’s (DHS) authority to set the conditions of immigrants’ stay in the country.

The Washington Alliance of Technology Workers, or Washtech, which represents American tech workers, challenged the Optional Practical Training (OPT) program after the Obama administration in 2016 tweaked it to allow students to work in the U.S. for up to three years.

Washtech and its lawyers at the conservative Immigration Reform Law Institute did not immediately respond to requests for comment. Nor did DHS.

Major business groups including the U.S. Chamber of Commerce and National Association of Manufacturers had intervened in the case in defense of the OPT program, which they say helps companies address a lack of qualified U.S. workers.

Some version of OPT has existed since 1947, and the 2016 rule permits DHS to extend work permits for students in science, technology, engineering and mathematics fields for up to two years beyond the typical one-year period. About 100,000 people complete the OPT program each year.

Washtech challenged the program in Washington, D.C., federal court. The group claimed the federal Immigration and Nationality Act (INA) does not allow individuals to retain student visa status once they graduate and does not authorize them to work in the United States.

Washtech said the OPT program had created more competition for tech jobs, often freezing out American workers.

U.S. District Judge Reggie Walton last year said the INA was ambiguous on whether student visa status encompasses post-graduate practical training. But he said DHS in the 2016 rule properly exercised its power to set the terms of a student visa, and dismissed the lawsuit.

The D.C. Circuit on Tuesday agreed and rejected Washtech’s appeal. The OPT program has clear educational value for participants, making it a natural extension of student visa programs operated by DHS, wrote Circuit Judge Cornelia Pillard, joined by Circuit Judge David Tatel.

In dissent, Circuit Judge Karen Henderson said the ability of DHS to set conditions on student visas is limited by the INA, which says an individual must be a “bona fide student” to be eligible for a visa.

The case is Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, U.S. Court of Appeals for the D.C. Circuit, No. 21-5028.

For Wash Tech: John Miano of the Immigration Reform Law Institute

For DHS: Joshua Press of the U.S. Department of Justice

For the business groups: Paul Hughes of McDermott Will & Emery

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