An influential union representing tech workers has plans to appeal a federal judge’s decision to uphold the optional practical training (OPT) program. The OPT program allows student-visa holders to hold apprenticeships upon graduation from accredited schools.

The issue is the inclusion of post-grads in the definition of “student”.  Per Judge Walton, the U.S. Department of Homeland Security (DHS) has interpretation discretion of the word “student” in the Immigration and Nationality Act.

The word “student” is not defined in the statute. As such, any ambiguities in its meaning can be reasonably construed by DHS under the Chevron doctrine, per Judge Walton. DHS enjoys “broad, delegated authority to enforce the INA and issue rules governing nonimmigrants,” he explained.

This is the latest development in an ongoing narrative that challenges the OPT program.

The most recent version of the OPT program allows an additional two-year extension on top of the already one year of work authorization for qualifying individuals.

Judge Walton called out a 2011 U.S. Supreme Court decision that stated Congress did not require students to be actively attending school to participate in post-graduate training programs.

Congress has comprehensively amended the INA since the government began to interpret the word “student” so expansively, Judge Walton outlined in his opinion.  As such, it is implied that Congress took no issue with the administration’s approach, Judge Walton wrote.

We will continue to monitor OPT program developments and provide our expertise to guide our clients, ensuring they get the right advice. If you have questions about the OPT program or any immigration related questions, contact us at any time.

immigration OPT