USA Supreme Court dismisses challenge to Optional Practical Training

A long-running legal campaign by the Washington Alliance of Technology Workers (WashTech) had challenged the legality of the Department of Homeland Security’s (DHS) authority to create and maintain the OPT scheme.

OPT allows international students to work for 12 months after graduation in a job related to their field of study, and since 2016 STEM graduates have been able to apply for an additional 24 months on top of the regular allowance.

The WashTech challenge was initially dismissed by the District Court of Columbia, and the D.C Circuit Court of Appeals upheld that decision in October 2022 and then denied a petition for review in February this year. A consortium of 118 universities and colleges and international education associations submitted an amicus brief in support of OPT for the hearings.

In May 2023, WashTech asked the Supreme Court to review the appeal the Court of Appeals’ decision, but the Supreme Court has indicated this week that it will not hear the case – a decision which leaves the lower court decisions in place.

Fanta Aw, Executive Director and CEO of NAFSA Association of International Educators , said, “The Supreme Court’s decision to not take up the WashTech case against Optional Practical Training is an important victory for U.S. higher education and has far-ranging implications for U.S. competitiveness in the global economy.

“As NAFSA has long argued, enabling international students to advance their education through applied learning is essential to attracting them to our colleges and universities. Amid an increasingly competitive global education market, we cannot afford to lose this time-tested tool for drawing the world’s best and brightest to our classrooms, campuses and communities.”

Following the decision, NAFSA said it will keep lobbying for a permanent residency stream for international students and be watchful of further legal challenges to DHS authority on OPT.

“While the high court’s decision to leave OPT intact resolves a major area of uncertainty for international students, it remains true that they do not have a direct path to permanent legal status in the United States after they graduate. We will continue to press Congress on the need to modify immigration law so the world’s best and brightest may remain in this country to contribute their talents.”

In the 2020/21 academic year, there were 203,885 international students on OPT, according to the annual Open Doors report by the Institute of International Education (IIE), compared with 76,031 a decade earlier.

The 24-month STEM extension has been credited for the substantial growth in the OPT scheme. Most of the USA’s rival destinations such as Australia, Canada, New Zealand and the UK offer an open post-study work permit for international students.

In January 2022, an additional 22 academic fields were added to the STEM OPT extension eligibility list, while a further eight fields were added in July.