New threat looms over OPT for F-1 visa students as lawsuit challenges extension of work permit

Lawsuit filed by Washington Alliance of Technology Workers.


The ongoing dispute over the extension of Optional Practical Training (OPT) for certain F-1 visa students continue to boil over with the anti-immigration group Washington Alliance of Technology Workers mounting yet another lawsuit, hoping to bring the issue into the national limelight in an election year, despite losing time and again in court.

The U.S. Department of Homeland Security (DHS) urged a D.C. federal judge on Friday to toss the technology union’s latest suit challenging a revised foreign student OPT work rule, saying the new claims still don’t hold up, reported Law360.

The agency argued that the Washington Alliance of Technology Workers lacks standing and is unable to conclude any alleged injury was caused by the 2016 regulation — which went into effect in May and allows certain F-1 foreign students with degrees in science, technology engineering or math from U.S. schools to extend their initial 12-month OPT to 29 months and more.

Earlier this month, a Washington, D.C., federal judge had ordered the DHS to pay a technology workers union more than $42,000 in a dispute over a case on the OPT for F-1 student visa holders, far less than the $465,000 the group had sought.

U.S. District Judge Ellen Segal Huvelle told DHS to reimburse the Washington Alliance of Technology Workers, otherwise known as WashTech, for 15 percent of certain fees and costs, which came to $42,239, according to the order.

“Especially in light of plaintiff’s marginal victory, the court finds that an award of 15 percent of plaintiff’s remaining fees and expenses is appropriate,” Judge Huvelle wrote.

Launched in March 2014, WashTech’s suit had challenged a 2008 interim rule extending the “optional practical training” program from 12 to 29 months for certain science, technology, engineering and math — or STEM — students. OPT allows individuals on an F-1 student visa to work in the U.S. during or after their studies at an American school, reported Law360.

That November, the judge threw out WashTech’s challenge against the 12-month OPT program as it existed before 2008. However, she later vacated the 2008 rule after finding that DHS did not show it faced a true emergency situation that would allow the agency to issue the rule without notice and comment.

DHS subsequently rolled out a replacement rule, and the D.C. Circuit threw out the union’s challenge, saying the case was moot. The ruling came just three days after the replacement regulation went into effect, which will let certain foreign students with science and technology degrees extend the length of the work program by 24 months.

WashTech argued in mid-June that it won the case because it “forced a change” in a legal dynamic between itself and the DHS days after the court dismissed the suit as moot and ordered judgment for the agency. But DHS said WashTech never obtained the ultimate relief it sought and was thus not entitled to the roughly $463,00 in attorneys’ fees and $2,200 in litigation costs that it requested under the Equal Access to Justice Act.

Judge Huvelle found that WashTech was a “prevailing party” under the law, and that it was “unreasonable” for DHS to claim that a labor deficit allowed it to go ahead with emergency rulemaking.

However, the judge also noted that WashTech won just on its “notice-and-comment” issue, and said that there was “no question” that the award had to be lessened due to the group’s “limited success” in the case.

“WashTech also inexplicably seeks reimbursement for its New Jersey-based attorney traveling to and from Washington to testify before the Senate,” the judge added. “That testimony had no impact whatsoever on this litigation, so those amounts will also be denied in full.”

The report had then noted that “although this particular case may be winding down, the union recently lodged a new complaint in D.C. federal court to challenge the revised rule, asking the court to enter a declaratory judgment that the DHS exceeded its statutory authority, to vacate the revised regulation and to award WashTech attorneys’ fees.”

One Comment

  1. the h1b, and all guest workers programs (h2b, L1, OPT, etc) are all full of fraud and abuse.
    end them all. americans first!

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