By: Bruce E. Buchanan, Sebelist Buchanan Law

The Washington D.C. District Court has again ruled for the Department of Homeland Security (DHS) in a lawsuit concerning the promulgation of the 1992 regulation creating Optional Practical Training (OPT) and the 2016 regulation permitting eligible F-1 student visa holders with STEM (science, technology, engineering, and mathematics) degrees to extend their status by an additional 24 months. See Washington All. of Tech. Workers v. Dept. of Homeland Sec. (D.D.C. Jan. 28, 2021). The judge decided Washington Alliance of Technology Workers (WashTech), which represents U.S. workers who are STEM degree holders, did not show that DHS had violated the Immigration and Nationality Act (INA) in the promulgation of the regulations.

WashTech argued the 1992 and 2016 regulations exceeded the authority of DHS under several provisions of the INA because in part the regulation allows employers to skirt the H-1B temporary visa program for high-skilled workers without providing labor protections for U.S. workers.

In ruling in favor of DHS, the Judge noted DHS enjoys broad authority to enforce immigration law and that its interpretation that student visa holders can participate in employment for “practical training purposes” is long-standing, dating back to at least 1947, and deserving of deference. The Judge also noted Congress has repeatedly amended immigration laws since that time without unsettling DHS's interpretations, giving credence to the idea that Congress finds DHS's interpretations reasonable.

WashTech, a labor union, has filed to appeal the ruling, ensuring litigation in the long-running case will continue. WashTech has filed two separate lawsuits challenging the OPT program, the first of which dates back to 2014.

If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.