Court won’t revisit approval of work permits for student visa holders

  • Summary
  • Law firms
  • Related documents
  • Full court won’t review panel ruling upholding work permit program
  • Two judges dissented, citing restrictions in federal law
  • Decades-old program was expanded in 2016

(Reuters) – A U.S. appeals court on Wednesday declined to reconsider a three-judge panel’s ruling that upheld the Obama-era expansion of a program allowing student visa holders to work in the U.S. after graduating.

The full U.S. Court of Appeals for the D.C. Circuit denied review by the full court of the October ruling over the dissent of two Republican-appointed judges, who said the court had ignored a requirement in federal immigration law that visa holders be “bona fide students” to remain in the United States.

The Washington Alliance of Technology Workers, or Washtech, which represents American tech workers, challenged the decades-old 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 did not immediately respond to a request for comment. Nor did the U.S. Department of Homeland Security, which oversees the OPT program.

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

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

Washtech in a 2016 lawsuit said federal immigration law only allows international students to remain in the U.S. while they are enrolled in school.

U.S. District Judge Reggie Walton in 2021 said DHS in the 2016 rule properly exercised its power to set the terms of a student visa, and dismissed the case.

The D.C. Circuit panel in October agreed and rejected Washtech’s appeal in a 2-1 ruling. The court said OPT has clear educational value for participants, making it a natural extension of student visa programs.

In dissent on Wednesday, Circuit Judge Neomi Rao said OPT may be good policy, but DHS has no power to rewrite immigration laws.

“And the panel’s reasoning applies not just to [student] visa holders, but extends DHS’s authority to confer valuable benefits to all nonimmigrant visa holders,” wrote Rao, an appointee of former President Donald Trump.

Rao was joined by Circuit Judge Karen Henderson, an appointee of former President George H.W. Bush who also dissented from the panel decision.

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 Washtech: 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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Daniel Wiessner

Thomson Reuters

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at

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