STEM OPT WashTech Litigation

DHS reformulated the F-1 STEM optional practical training (OPT) benefit in the "24-month STEM OPT Rule" published at  81 FR 13039 (March 11, 2016), effective on May 10, 2016. Go to www.nafsa.org/stemoptrule for a summary of the 2016 STEM OPT rule. This page summarizes the progress of litigation arising out of that rule.

Updates

• On May 1, 2023, Washtech asked the Supreme Court to review the appeals court's decision. Read WashTech's petition for a writ of certiorari to the Supreme Court.
• Read the Government's response brief (August 4, 2023)
• A number of parties have filed amicus briefs both for and against WashTech's petition for writ of certiorari.
• Access amicus briefs and other filings on the Scotusblog page monitoring the case
• The Supreme Court docket page for the WashTech case indicates that on August 23, 2023, the petition for certiorari was "Distributed for Conference of 9/26/2023."
  • The Supreme Court's Case Distribution Schedule page explains: "The Case Distribution Schedule identifies the dates on which petitions for writs of certiorari, along with corresponding briefs in opposition and reply briefs, will be distributed to the Justices. It also identifies the dates on which those petitions are scheduled to be considered by the Justices at conference, although this schedule is subject to change... In most cases, the disposition of a petition discussed at a particular conference will be announced in an order list that is issued at 9:30 am on the Monday after that conference."
• On October 2, 2023, the Supreme Court announced the denial of the petition for writ of certiorari filed by WashTech (22-1071 WA ALLIANCE OF TECH. WKRS. V. DEPT. OF HOMELAND SEC., ET AL.). The case appears under the list of "Certiorari Denied" cases in the U.S. Supreme Court's Monday, October 2, 2023 Order List. This  leaves in place the lower courts' decisions that support the Department of Homeland Security's authority to create and maintain its F-1 Optional Practical Training programs.
  • As described by Cornell Law School's Legal Information Institute, "In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case. This is defined as denying certiorari...A decision to deny certiorari does not necessarily imply that the higher court agrees with the lower court's ruling; instead, it simply means that fewer than four justices determined that the circumstances of the decision of the lower court warrant a review by the Supreme Court.  The Court's orders granting or denying certiorari are issued as simple statements of actions taken, without any explanations given for denial."
  • Read NAFSA's statement, Supreme Court Ruling to Keep Optional Practical Training Intact a Victory for U.S. Competitiveness and Higher Education.

NAFSA Engagement

• Amicus Brief. On November 21, 2019, 118 public and private universities and colleges filed an amicus brief in the Washington Alliance of Technology Workers Union vs. U.S. Department of Homeland Security (Washtech) litigation to defend the long-standing immigration program known as optional practical training and its more recent expansion, STEM OPT (collectively "OPT"). Preparation of the brief was coordinated by the Presidents' Alliance on Higher Education and Immigration and NAFSA: Association of International Educators, and the amici were primarily represented by Jenner & Block.
  • The Amicus Brief
  • NAFSA Press Release
  • Alliance/NAFSA Press Release
  • President's Alliance Communications Toolkit for Colleges and Universities
  • List of Amici Signatories
• Government Connection Event. On September 3, 2019, NAFSA hosted an online discussion on the implications of the legal challenge to OPT, featuring attorneys Ishan Bhabha (Jenner & Block), Dan Berger (Curran, Berger & Kludt), Steve Yale-Loehr (of counsel, Miller Mayer and professor of immigration law practice Cornell Law School). Watch the recording and download the slides free of charge.
• The American Immigration Lawyers Association (AILA) and the American Immigration Council also submitted an amicus brief.

Washtech Litigation Timeline

U.S. Supreme Court

• On May 1, 2023, Washtech asked the Supreme Court to review the appeals court's decision.
  • Read WashTech's petition for a writ of certiorari to the Supreme Court.
  • Read the Government's response brief (August 4, 2023).
  • Follow this on the SCOTUSblog website and Docket 22-1071 on the U.S. Supreme Court's website.
• On October 2, 2023, the petition for writ of certiori filed by WashTech (22-1071 WA ALLIANCE OF TECH. WKRS. V. DEPT. OF HOMELAND SEC., ET AL.) appears under the list of "Certiorari Denied" cases in the U.S. Supreme Court's Monday, October 2, 2023 Order List. This puts the case to rest once again, and leaves in place the lower courts' decisions that support the Department of Homeland Security's authority to create and maintain its F-1 Optional Practical Training programs.

Appeals Court

• On February 1, 2023, the court of appeals denied Washtech's petition for a full en banc review.
  • Its remedies being exhausted at the appeals court level, Washtech could decide to ask the Supreme Court to review the decision. Under Supreme Court Rule 13, Washtech had to file its petition for a writ of certiorari with the Supreme Court within 90 days of the February 1, 2023 court of appeals decision.
• On December 1, 2022, DHS filed a response to Washtech's petition for en banc review. The National Association of Manufacturers also filed a response as intervenors-appellees.
• On November 15, 2022, Washtech filed a petition requesting a review en banc (i.e., by all the court’s judges) of the court’s October 4, 2022 panel decision.
• On October 4, 2022, a 3-judge panel of the appeals court sided with DHS, denied Washtech's motion for summary judgement and granted DHS's motion. Read the panel decision of the U.S. Court of Appeals for the District of Columbia Circuit.
• On November 3, 2021, the appeals court heard oral argument on the WashTech case. A recording of the oral argument is available on the Court's YouTube channel.
• On June 21, 2021, NAFSA and the President's Alliance led 151 higher ed institutions in submitting an amicus brief to the appeals court in support of OPT in the ongoing WashTech litigation. "This brief describes the scope and importance of OPT to American colleges and universities. It places OPT within its proper historical context as but one example of experiential learning that has always been understood as integral to academic study in the United States. It details the benefits OPT brings to its participants, their host institutions, and the economy at large. And, finally, it describes the substantial costs these stakeholders will bear if WashTech prevails in this appeal."
  • Read the June 21, 2021 amicus brief, and view the signatories to the June 21, 2021 brief.
  • The June 21, 2021 brief is an update to the brief originally filed on November 21, 2019; also see the President's Alliance Amicus Brief Actions page.
• On March 26, 2021, the appeals court set the following briefing schedule:
  • APPELLANT Brief (by WashTech) due 05/05/2021. APPENDIX due 05/05/2021.
  • APPELLEE Briefs (by USCIS et al.) due on 06/04/2021.
  • APPELLANT Reply Brief (by WashTech) due 06/25/2021.
• On January 29, 2021, WashTech filed a notice of appeal with the D.C. Circuit Court of Appeals, to challenge the District Court's January 28, 2021 decision. The case number of the appeal is 0:21-cvus-05028.

District Court

• In a January 28, 2021 decision, the U.S. District Court for the District of Columbia granted DHS's and intervening parties' (NAM, Chamber, ITI) motion for summary judgment (See 11/29/2019 cross-motion for summary judgement and supporting memorandum), finding that "DHS did not exceed its statutory authority in issuing the 2016 OPT Program Rule." This means that court concluded that both the standard 12-month OPT and the STEM OPT extension programs were lawfully within DHS's authority to promulgate. The court also denied WashTech's motion to strike the Presidents’ Alliance amicus brief. The same day, WashTech appealed to the D.C. Circuit Court of Appeals.
• In a November 30, 2020 order, the district court denied Washtech motions of summary judgement and granted DOJ crossmotions for summary judgement. This order included the statement, "It is further ORDERED that this Order is not a final Order subject to appeal." If the court's eventual final judgement is as expected consistent with the order on the motions and goes against Washtech, Washtech could file a notice of appeal within 60 days of the final judgement.
• On August 18, 2020, the court further postponed the next status conference to December 1, 2020. The minute order stated: "The Court requiring additional time to consider the pending motions in this case, it is hereby ORDERED that the status conference currently scheduled for September 4, 2020, is CONTINUED to December 1, 2020, at 2:30 p.m."
• On April 9, 2020, the Court postponed until September 4, 2020 at 2:30 p.m. the status conference that had been scheduled for May 1, 2020. Judge Wilson's minute order stated that the court needed "additional time to consider the pending motions in this case," which includes WashTech's February 17, 2020 motion to strike the November 21, 2019 amicus brief filed by public and private universities and colleges. The amici schools filed an opposition to WashTech's motion which the court will also consider.
• In an August 6, 2019 order, the Court set deadlines for receiving amicus briefs and the intervening parties' cross-motion for summary judgment and opposition to WashTech's motion for summary judgement, as well deadlines for several other matters. The order also set the next status conference date. An October 23, 2019 order reset the dates as follows: Amicus Briefs due by 11/25/2019. Cross Motions due by 11/25/2019. Response to Cross Motions due by 12/9/2019. Summary Judgment motions due by 11/25/2019. Response to Motion for Summary Judgment due by 1/3/2020. Reply to Motion for Summary Judgment due by 12/9/2019. Status Conference reset for 5/1/2020 at 10:00 AM in Courtroom 16 before Judge Reggie B. Walton.
• The Court held a status conference on August 6, 2019.
• On July 22, 2019, the Government answered the WashTech Complaint, and asked the Court to dismiss the case.
• On July 15, 2019, interventing parties answered the WashTech Complaint.
• On July 11, 2019, the U.S. District Court for the District of Columbia set a July 22, 2019 deadline to receive the Government's answer the WashTech Complaint.
• In a July 1, 2019 decision, the U.S. District Court for the District of Columbia:
  • Found that DHS's 2016 STEM OPT rulemaking also had the legal effect of reopening the legacy INS 12-month post-completion OPT regulation that had been finalized in 1992. This means that the Court no longer considers a challenge to DHS's statutory authority to implement standard post-completion OPT to be outside the statute of limitations, and that the WashTech plaintiffs can challenge DHS's underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well. In its decision, the Court did not determine that DHS does not have such authority, but rather that it will consider the parties' arguments for and against that authority. NAFSA is engaged on the issue with other higher education and industry groups.
  • Granted the motion to intervene as defendants filed by the National Association of Manufacturers, the Chambers of Commerce of the United States of America, and the Information Technology Industry Council.
• In a June 8, 2018 decision on WashTech's appeal of the district court's dismissal of its claims, the appeals court reversed the district court's dismissal of Count II of WashTech's complaint, which asserted that DHS did not have the statutory authority to promulgate the 2016 STEM OPT rule. The appeals court did not render an opinion on the issue itself, but rather found that the basis for the district court's dismissal of that claim was insufficient. And so, the appeals court remanded that issue back to the district court, which must now revisit the assertion that DHS lacks the statutory authority to establish any optional practical training benefit beyond the standard 12-month benefit.
• WashTech appealed the district court's April 19, 2017 dismissal of its claims, to the U.S. Court of Appeals for the District of Columbia Circuit (appeals court).
• On April 19, 2017, the Washington D.C. District Court dismissed WashTech's June 17, 2016 suit against regular and 24-month STEM OPT. In its final order and opinion dismissing the case, the Court found that:
  • WashTech did not have standing to sue on their claim against the 1992 regular 12-month OPT rule,
  • WashTech did have standing to sue on their claim against the 2016 24-month STEM OPT rule, but,
  • WashTech failed to adequately state a claim on which relief could be granted against the 2016 24-month STEM OPT rule
   
• On March 30, 2017, the Washington D.C. District Court issued an order "granting in part and denying in part" the Government's August 29, 2016 Motion to Dismiss WashTech's suit for lack of subject matter jurisdiction and failure to state a claim. The Court stated in its order that it will set forth its reasons in a Memorandum Opinion "to be issued by the Court within the next thirty days, absent extraordinary circumstances." The Court will issue a final Order at the same time it issues its Memorandum Opinion. No further details regarding the order are available.
• On March 6, 2017, the status conference on WashTech's June 17, 2016 lawsuit was rescheduled for April 10, 2017. The status conference was originally scheduled for December 12, 2016, was then delayed until March 9, 2017, and now has been further continued until April 10, 2017, "In light of the Court still seeking to resolve the pending motion in this case."
• Between August 29, 2016 to September 16, 2016, the parties to WashTech's June 17, 2016 lawsuit filed the following: On August 29, 2016, DHS filed a motion to dismiss WashTech's suit for lack of subject matter jurisdiction and failure to state a claim (read DHS' memorandum in support of their motion); On September 9, 2016, WashTech filed a response to DHS' motion (read WashTech's reponse); on September 16, 2016, DHS filed a response to WashTech's response (read DHS' response).
• On August 8, 2016, the U.S. District Court judge that heard WashTech's original complaint filed against the 2008 17-month STEM OPT rule (the rule that was vacated effective May 10, 2016), granted in part a WashTech motion for attorney fees from that litigation. WashTech had asked for $465,002.62 from DHS, the court awarded them $42,239.59. Read the court's opinion.
• On June 17, 2016, WashTech filed a new lawsuit with the U.S. District Court for the District of Columbia (district court), this time against the 2016 STEM OPT rule. The new filing, which was expected by DHS, raises many of the same substantive issues brought up in the original lawsuit, but now in the context of the 2016 STEM OPT rule rather than the 2008 rule. It also raises new procedural claims. Read WashTech's complaint.
• On May 13, 2016, the D.C. Circuit Court of Appeals dismissed as moot WashTech's appeal of the District Court's August, 2015 decision on the 2008 STEM OPT rule. And so that suit, originally filed in 2014, came to a close except for a subsequent determination of attorney fees.