Legal & Regulatory updates

U.S. Supreme Court Ends Years-Long Challenge to STEM OPT Programs

Recent developments regarding the STEM Optional Practical Training (OPT) program may interest TechServe Alliance members who utilize H-1B visa workers and STEM OPT graduate students to bridge the technical talent gap. The STEM OPT program provides post-graduate years of U.S. work experience for graduates of U.S. institutions of higher learning here on an F-1 visa.

Bloomberg Law, “High Court Passes on Challenge to Foreign Grad Work Program,” October 2, 2023

Yesterday, the U.S. Supreme Court denied a writ of certiorari in Washington Alliance of Technology Workers (WashTech) v. Department of Homeland Security (DHS). The plaintiffs challenged a DHS 2008 program extension to provide three years of STEM OPT, instead of one. WashTech argued that DHS had no authority to extend the program, and these students displaced U.S. workers.

A coalition of universities and the business community filed amicus briefs supporting DHS’s authority and the program’s importance in providing high-skilled entry-level workers to help bridge the technical talent gap. The program also opens additional opportunities for them to obtain an H-1B specialty occupation visa.

After a U.S. federal appeals court affirmed the lower court decision supporting DHS action, a group of conservative organizations and members of Congress joined WashTech in petitioning the Supreme Court to intervene, which the Supreme Court denied.

The Supreme Court’s October 2, 2023, decision ends five years of efforts by the Trump Administration and then private litigants to curtail STEM OPT. Beginning in January 2018, the previous administration adopted a policy that was later rescinded prohibiting staffing firms from placing STEM OPT workers at third-party sites. For background information, review TechServe, USCIS Settles STEM OPT Processing Delay Lawsuit,” August 10, 2021.