In 1992 the Immigration and Naturalization Service (INS) issued a regulation creating a 12-month Optional Training Program (OPT) for foreign students. OPT is a program available to foreign students upon the completion of their degrees to work in the United States and gain practical training in their field.
Then, in 2008, the Department of Homeland Security (DHS) issued an interim rule that allowed foreign students with a qualifying STEM degree to extend the period of their OPT for up to 17 months.
The Washington Alliance of Technology Workers union (WashTech) brought a lawsuit against DHS in 2014, challenging INS’ 1992 regulation and DHS’ 2008 interim rule, alleging both were outside DHS’ statutory authority.
In 2016, DHS issued a final rule permitting foreign students with STEM degrees to apply for extensions of their OPT program for up to an additional 24 months, instead of 17 months. At that time, WashTech’s lawsuit was dismissed on appeal as moot.
Soon afterwards, however, WashTech filed a new lawsuit, this time challenging the 2016 STEM OPT rule, asserting DHS does not have statutory authority to create or maintain any kind of post-completion OPT program.
On January 28, 2021, the district court issued an order dismissing WashTech’s claims, finding that DHS’ issuance of the 2016 STEM OPT rule was a lawful part of its authority.
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