The D.C. Circuit Court of Appeals agreed with the below D.C. District Court that allowing international students to work in their field of study for up to three years was within the Department of Homeland Security’s (DHS) authority to set the conditions of foreign graduates’ stay in the U.S.


Currently, the regulations state that F-1 students may participate in up to twelve (12) months Optional Practical Training (OPT) upon graduation so that they may gain skills related to their field of study. International students who have graduated with a qualifying degree in science, technology, engineering, or math (STEM) may qualify and apply for an additional extension of post-graduate work authorization – up to 24 months beyond their 12 months of OPT – known as a STEM OPT extension.

The Washington Alliance of Tech Workers (“Washtech”) argued that the statutory definition of the F-1 visa class in the Immigration and Nationality Act (INA) prevents DHS from exercising authority to allow F-1 students to remain in the U.S. for OPT and STEM OPT after completing their studies.

Case History

The original challenge from WashTech to the OPT program started in 2014, focusing on the 2008 STEM OPT rule which provided an additional 17-month extension to foreign graduates with STEM degrees. In that lawsuit, the court agreed that though DHS had the authority, it did not follow the proper administrative process to create and publish the rule. The court, however, stayed its ruling in order to give DHS enough time to properly follow the required rulemaking procedure, while also minimizing immediate negative effects on F-1 students.

The second legal challenge to the STEM OPT rules came in 2016, after the Obama administration updated the program (following the proper rulemaking procedure including a notice and comment period) to allow students to work in the U.S. for up to three years, 12 months on OPT with an extension allowed for STEM students for up to 24 months. Washtech filed a lawsuit in 2016, claiming in part that the STEM OPT rule granting the extra extension exceeded the authority of DHS under the INA.

In December of 2020, Washtech challenged the rule in DC’s District Court, where the Court disagreed with Washtech’s assertions and affirmed that DHS properly exercised its authority to set the terms of a student visa, including the ability to allow for OPT. The D.C. District Court issued a summary judgment in favour of DHS. 

After the District Court dismissed Washtech’s suit against DHS, Washtech filed an appeal with the D.C. Circuit Court of Appeals, which made its decision on October 4, 2022.

Latest Opinion – October 4, 2022

The D.C. Circuit Court of Appeals, in a 2-1 decision, rejected Washtech’s appeal, holding that the statutory authority to set the time and conditions of the F-1 students’ stay supports the OPT program, and that OPT permitted by the Rule are reasonably related to the terms of the F-1 visa.

The Court held, in its opinion, that the challenged post-graduation OPT Rule is “reasonably related to the distinct composition and purpose” of the F-1 nonimmigrant visa class, and that the Rule “closely ties students’ practical training to their course of study and their school,” which makes DHS’s authority over granting OPT a natural extension of its authority over F-1 student visas.

What This Means

This latest court decision means that the OPT and STEM OPT programs will remain in place as they are, with up to 12 months of time for OPT work authorization and up to 24 months of STEM OPT extended work authorization, so long as OPT is recommended and overseen by the school and approved by DHS for qualifying F-1 student visa holders.

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