Judge rules in favor of F-1 visa students on OPT, tosses out appeal by tech workers’ union

DC Circuit says F-1 visa students allowed to work for 3 years on OPT.

By Sujeet RajanUS-Visa

In a major win for international students on F-1 visas in the United States, who avail of Optional Practical Training (OPT) to gain valuable work experience as well as try to get employment offers and permanent residency, a court has tossed an appeal by a tech workers’ union who tried to overturn a Department of Homeland Security (DHS) rule to grant OPT for as many as three years and more to some students in the STEM track.

The D.C. Circuit on Friday threw out the challenge by the Washington Alliance of Technology Workers, saying the case was moot now, since a new rule came into effect on May 10. The DHS had amended an old rule governing the OPT for F-1 visa students, initiated in 2008. The changes include the onus on employers to provide educational training too when giving employment to students on OPT.

As earlier reported, John Miano of the Immigration Reform Law Institute, representing the Washington Alliance of Technology Workers, told a three-judge panel of the Washington, DC Circuit, to keep alive their challenge to the DHS rule and prevent the new rule from going into effect on May 10.

The “central issue” in the dispute was whether the DHS can effectively “transform” the F-1 student visa program into a guest worker program, according to Law360.

“[The policy allows] aliens to work on student visas, even though they’re not students [anymore],” Miano earlier told the panel.

Under the OPT program, some F-1 visa holders in STEM fields can temporarily work in the US, even when no longer students. The new rule now allow these STEM graduates to extend their initial 12-month OPT period by an extra 24 months, for a total of 36 months. They can avail of yet another 24-months of OPT if they attain another advanced degree from an accredited educational institution in the US.

DHS argued that the challenge by the tech workers’ union is moot as the new rule has different rules to it altogether, including a component for employers to provide educational training too as part of their employment offer to F-1 visa students on OPT.

The DHS attorney Leon Fresco urged the appeals court to rule that WashTech’s suit was “no longer viable”; the 2016 rule replacing it is “substantively different, he said.

The court agreed with that.

It’s however likely that the Washington Alliance of Technology Workers would file a lawsuit to prevent F-1 visa students from getting any OPT.


  1. The DC Circuit did not say F-1 visa students allowed to work for 3 years on OPT. the Court never ruled on the merits of the case, but instead dismissed the appeal as moot b/c the challenged old rule had been replaced. (In fact, when touching on the merits during oral argument, the court found the OPT program to be a sham.). Washtech filed a new lawsuit challenging the new rule on June 17, 2016.

  2. noh1bvisas

    I saw this coming. the judges are being paid off by big tech. the is a bright spot: there are a lot of new rules and regulations to comply with and severe penalties for not complying.

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