US companies and universities defend STEM OPT in court

The legal threat to optional hands-on training (OPT) in STEM (science, technology, engineering and math) has returned. U.S. corporations and universities wasted no time defending the ability of international students to work in a STEM department on OPT for up to 36 months, and viewed this as critical to attracting students and retaining talent in America. Still, startups, larger tech companies, and American educators cannot be happy about another threat to international education in the United States.

in the an order On November 30, 2020, U.S. District Judge Reggie B. Walton ruled against WashTech (Washington Association of Technology Workers) in his lawsuit attempting to invalidate optional hands-on training and STEM OPT (the ordinance issued in 2016). WashTech has appealed the final judgment to the District of Columbia Court of Appeals.

In one (n opinion, issued January 28, 2021, wrote Judge Walton, “Not just DHS [Department of Homeland Security] enjoy broad, delegated powers to enforce the INA [Immigration and Nationality Act] and have issued rules for non-immigrants, but “the DHS’s interpretation of F-1 – insofar as it allows employment for training purposes without the need for constant schooling – is“ longstanding ”and justifies deference. “Since at least 1947, [the Immigration and Naturalization Service (‘INS’)] and the DHS designed immigration laws to allow foreign students to take up employment for practical training purposes. ‘”

Referring to a previous court opinion, Judge Walton continued, “This longstanding interpretation of the DHS is substantiated by the fact that ‘Congress has repeatedly and substantially amended the relevant statutes without interfering.’ [DHS’s] Interpreting “, which enables practical training after graduation. [Washtech II, 156 F. Supp. 3d at 143.] “Since 1952, Congress has changed the rules on non-immigrant students on several occasions.” . . . And, ‘[d]During this time, Congress also introduced various health and safety measures for domestic workers[,]’yes’ Congress never rejected INS[’s] or the interpretation of the DHS that enables foreign students to do an internship after graduation. ‘”

“Accordingly,” wrote Judge Walton, “this court agrees with the court’s conclusion in Washtech II that ‘[b]y leave the agency’s interpretation of F-1 almost undisturbed [seventy] Years ago, in spite of these major revisions, Congress has given a strong signal that it believes the interpretation of the DHS is reasonable. ‘ . . . WashTech’s arguments to the contrary are not convincing.

“For the above reasons, the court concludes that Article III of WashTech has the authority to bring this action and that DHS did not exceed its legal powers in enacting the 2016 OPT program rule. Accordingly, the court rejects WashTech’s motion for a summary judgment, grants the government and interveners’s motions for a summary judgment, and rejects WashTech’s motion to strike. “

In 2019, three trade associations – the National Association of Manufacturers (NAM), the US Chamber of Commerce and the Information Technology Industry Council – intervened in the case “to protect the rights of international students,” according to an interview with Paul Hughes of McDermott Will & Emery, who represented the associations. According to the judge, they are the “interveners”.

On June 11, 2021, in response to WashTech’s appeal, NAM and other interveners filed a short one who defended Judge Walton’s opinion and detailed why they believed WashTech’s arguments were wrong. “WashTech would let this court determine that every presidential administration since Harry Truman has acted illegally by allowing foreign students a temporary practical training after completing their classroom studies,” write the business associations. “If that sounds implausible, it should: The DHS has sufficient powers to authorize the employment of non-citizens, it has used that power wisely here, and OPT is not excluded by the legal definition of F-1 status. The program should be maintained. “

Business associations state that WashTech prevailing in court would upset far more than US policy towards international students. “WashTech is also wrong when it argues that DHS does not have the authority to authorize any Non-citizens to work beyond the work permit already granted by law, ”write the professional associations. “On the contrary, the DHS has the power to regulate and specifically determine the terms and conditions for admitting non-immigrants, and Congress has made a notice of non-citizens eligible for such employment. . . until [Secretary of Homeland Security]”(8 USC § 1324a (h) (3)) – a provision that clearly confirms the authority of the DHS to issue work permits to classes of non-citizens.”

“In summary, the OPT program easily meets the requirement that regulations ‘have an appropriate relation to the purposes of the enabling legislation’ and, moreover, are fully compatible with the INA and through over seven decades of executive practice and ratification by Congress are supported “, so the employers’ liability insurance association. “WashTech did not provide a basis for knocking it down.”

On June 18, 2021, FWD.us, 47 companies and 12 industry associations submitted an application amici curien briefly in support of the defendant-complainant [DHS et al.] and interveners. Signatories among companies and organizations have included Amazon, Apple, Box, Inc., Business Roundtable, Compete America, Facebook, Google, Intel Corporation, Microsoft, National Immigration Forum, National Venture Capital Association, Netflix, PayPal, the Semiconductor Industry Association , Texas Instruments and others.

“The OPT and STEM-OPT programs help address the STEM workforce shortage by creating a recruiting opportunity and a critical talent pipeline to meet the needs of companies in all industries,” the brief reads of the company and the associations. “They offer attractive prospects for foreign-born students who wish to acquire additional practical knowledge in their fields of study after completing their studies in the USA, thus strengthening the competitiveness of the United States against students with competing countries. It offers highly qualified foreign-born students the opportunity to work for US companies on short notice and to supplement their school education with practical training. ”

The letter quoted the National Foundation for American Policy research about the large number of vacancies in computer professions and the economist Madeline Zavodny current research This showed that the number of US students graduating from the average American university in science and technology is increasing as more international students enroll. An earlier one study von Zavodny concluded, “There is no evidence that foreign students participating in the OPT program reduce employment opportunities for US workers.”

On June 21, 2021, the Presidents’ Alliance on Higher Education and Immigration and 151 colleges and universities submitted an application amicus curiae short. University signatories have included Boston University, Carnegie Mellon, Dartmouth, Georgetown, Harvard, MIT, NYU, Princeton, UC-Berkeley, Yale, and others.

The letter mentioned the educational benefits of OPT and STEM OPT. “This combination of theory and practice distinguishes US graduates and enables them to master the greatest challenges of our time with creativity and common sense,” says the order.

“As emphasized by college leaders across New Jersey, including Princeton University President Christopher Eisgruber, OPT enables students to complement their education with valuable experiential and on-the-job training as they begin their careers,” the letter continued . “As the vice dean of faculty and graduate affairs at Georgetown University put it: ‘Even our best students can only learn so much from class; they then have to test and continue these lessons in the real world. The opportunity to complete internships, employment or research is crucial for their development as future leaders in a more globalized world community for future generations. ‘”

The abstract cited a study by the NAFSA: Association of International Educators of the $ 38.7 billion international student contribution to the U.S. economy in the 2019-2020 academic year, which will support approximately 415,000 jobs in America. It also discussed a Business Roundtable study that modeled a 60% decrease in OPT and found that such a decrease in optional hands-on training would result in 255,000 fewer jobs being filled by native-born workers.

WashTech doesn’t seem to have the facts on its side, but its persistence remains focused on OPT and STEM OPT which could cast doubt on whether these programs will continue. From the standpoint of those who support WashTech’s point of view, deterring international students from attending US universities by casting doubts about the future existence of OPT can be a victory. This is not good news for those who support increased international student immigration to America.