Ongoing lawsuit may pose limits on international students’ employment post-graduation

Jan. 22, 2020, 11:43 p.m.

As graduation approaches, international students planning to work in the U.S. are preparing to apply for the Optional Practical Training (OPT) program, which allows F-1 (academic student) visa holders to legally work in the U.S. for a year, as long as they work in jobs directly related to their major. Authorized by the Immigration and Naturalization Service (INS) in 1992, the program was expanded in 2016 by the Department of Homeland Security (DHS) to allow students graduating with degrees in STEM an extension of up to 24 months (STEM OPT).

2020, however, may be a more challenging year for applicants of the OPT program — both the initial program and its 2016 expansion have been embroiled in a lawsuit filed by the labor union Washington Alliance of Technology Workers (WashTech) in the U.S. District Court for the District of Columbia. In the initial complaint, WashTech wrote that the government agencies “exceeded its statutory authority” by creating the OPT program without congressional approval. It also claimed that the program caused “increased competition with WashTech members with foreign workers.”

If WashTech prevails in the suit, it could eliminate not only the STEM extension but also the OPT program itself.

Last November, Stanford joined over 118 other universities in filing an amicus brief defending the OPT program. The brief argued that international students foster diversity, maintain research excellence and add value to the U.S. economy. Without the program, the brief reads, universities will have a harder time recruiting international students “in an increasingly competitive global education market.”

According to a report by the Institute of International Education, about 223,000 international students were under the OPT between 2018 and 2019.

Computer science major Jinwoo Yu ’20 said he understands WashTech’s concern for the job replacement by international students. Born and raised in South Korea, he is planning to launch a startup with colleagues he met at Stanford.

But Yu also thinks eliminating the program would not be the best way to approach the problem.

“The U.S. government could encourage international students’ entrepreneurship in the U.S.,” Yu said. That way, he believes, the OPT program can create jobs and contribute to the U.S. economy, without increasing the competition in the labor market, as WashTech argues.

History of WashTech’s challenge

WashTech’s challenge to the OPT program has a long history. In 2014, the union filed its first lawsuit against the program, challenging a 2008 rule that allowed a 17-month extension for international students in STEM fields. The court accepted the complaint and initially invalidated the STEM extension in August 2015.

But six months later, homeland security introduced an amendment that lengthened the extension from 17 to 24 months. The amendment also added that the DHS would only authorize STEM extensions for students hired by companies that participate in E-verify, a web-based system that checks employees’ eligibility to work in the U.S. As the new rule replaced the 2008 rule, the court dismissed WashTech’s original complaint as moot.

WashTech filed another lawsuit against this new amendment. The D.C. district court initially dismissed the labor union’s claim, but WashTech appealed to the court’s dismissal. The U.S. Court of Appeals for the District of Columbia Circuit found the basis for the initial dismissal was insufficient, sending the issue back to the district court in June 2018.

Finally, in a July 1, 2019 decision, the district court reversed its original dismissal and found that WashTech’s suit can challenge not only the 2016 rule but also the INS’s legal authority that created the OPT program in 1992. It also opened submission from amicus briefs like those signed by Stanford and industries that would be most affected by the elimination of the program.

What’s next?

The key attorneys of the case are expecting to hear the decision from the court within the next few months, according to Forbes.

The program also faces challenges from the more protectionist stance of the Trump administration, which set August 2020 as a target date to introduce amendments to the existing OPT program for F-1 visa holders.

The administration has not yet explained what the revised regulation would entail. Experts, quoting the earlier versions of the agenda, speculated that the amendment would include measures that “reduce fraud and abuse” and “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas.”

For international students, the uncertain future of U.S. politics can be especially difficult to navigate. Celia Chen ’20, from China, is staying another year at Stanford to complete a coterminal degree in computer science. Chen is reaching out to recent graduates and the Bechtel International Center to prepare for her career after Stanford.

“It’s definitely harder this year than last year for internationals, but since I’m mostly looking into [jobs] in the tech field it’s still a lot better than what I heard from other industries,” Chen wrote in an email to The Daily. Her primary plan is to start her career in the U.S., but she is also open to work overseas or return to China.

History major Nesrine Mbarek ’20 believes her experience “is no different from the experience of any other senior at Stanford.” From Tunisia, Mbarek is applying for jobs in the U.S. and also considering working overseas.

“I have been heavily relying on my advisors and their networks. Both my advisors are wonderful and incredibly helpful,” Mbarek wrote in an email to The Daily. She also said the Bechtel International Center provided sufficient resources to help her understand the legal process of OPT.

In an email to The Daily, University spokesperson E.J. Miranda said Stanford “will continue to support our international students as [the WashTech v. DHS] case moves forward.” He also responded on behalf of Shalini Bhutani, Executive Director of the Bechtel International Center.

Quotes from Jinwoo Yu were given in Korean and were translated into English. Some were lightly edited in translation.

This article has been corrected to reflect that the Optional Practical Training program was authorized by the Immigration and Naturalization Service, not the Department of Homeland Security.

Contact Won Gi Jung at jwongi ‘at’

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