F-1 visa 24-month OPT extension lawsuit dismissed

April 20, 2017

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NEW YORK: There’s good news for STEM F-1 visa students who have availed or were planning to avail of the extended 24-month Optional Practical Training (OPT) period, apart from the regulation 12 months of the work-training they receive through the program: a lawsuit to revoke the extension has been dismissed in federal court.

OPT is a period during which undergraduate and graduate students with F-1 visa status, who have completed or have been pursuing their degrees for more than 9 months, are permitted by the United States Citizenship and Immigration Services (USCIS) to work for one year on a student visa towards getting practical training to complement their education.

Anti-immigration advocates have been targeting the OPT for several years, terming it as a job killer for American workers, a chance for American employers to avail of cheap labor and exploit foreign students.

The Washington Alliance of Technology Workers (WATW) filed a lawsuit challenging the 24-month OPT extension granted by the Obama administration, last year.

In their lawsuit, WATW argued that the extension of the OPT program denied labor protections to American technology workers, allows increased and unfair competition in the US, provides foreign students on F-1 visa the benefit of mentoring programs, referring to the I-983 training plan, without requiring colleges and universities to give the same benefit to US workers, and violates procedural rights of American workers by failing to include the question of whether OPT should be expanded in the first place in the regulatory process by the Department of Homeland Security (DHS).

The DHS argued in favor of retention of the extended 24-month OPT, and asked the court to dismiss the lawsuit.

Last month, a federal court in its ruling, granted only part of DHS’ motion to dismiss, but also denied part of the motion to dismiss.

Now, in its final ruling on the case, the federal court has dismissed the lawsuit brought by the WATW, in favor of DHS.

Further details of the ruling are awaited.

The decision means F-1 visa students in STEM-related studies will continue to get a total of three years of OPT during and after the program they are enrolled in.

It also improves the chances of F-1 visa students to gain a good foothold in a job they take up in the US, and to be sponsored by the employer for an H-1B visa.

Annually, 20,000 H-1B visas are reserved for F-1 visa higher degree graduates of US educational institutions. If there are more than 20,000 applications, they are pooled to compete for the general quota of 65,000 H-1B visas which are for all foreign workers.

This year, for the fiscal year 2018, a total of 199,000 H-1B visa applications were received for the 85,000 H-1B visas up for grabs. A lottery was conducted to determine eligible candidates.

The dismissal of the OPT extension case is also good news for H-4 visa holders who have an Employment Authorization Document (EAD), or are expecting an EAD soon.

It’s likely that a lawsuit filed by Employment Authorization Document (EAD) for H-4 visa holders, by another anti-immigration group, Save Jobs USA, arguing that EAD for H-4 visa holders hurt American workers, will be dismissed.

The decision on the OPT extension is also good news for US educational institutions who will heave a sigh of relief. It was a certainty that an adverse ruling would have impacted their foreign enrollment.