A policy put in place by the Obama administration has been challenged but upheld. Foreign STEM (Science, Technology, Engineering, and Math) graduates who are on student visas continue to have up to three years of work authorization after graduation. The D.C. circuit court found the policy supports foreign STEM grads after graduation, supporting the reason behind the F-1 visa program.

The three-judge panel found that Congress clearly authorized the U.S. Department of Homeland Security (DHS) to establish the guidelines for foreigners’ stay that relate to the visa type used to enter the United States. As such, the F-1 visa Optional Practical Training (OPT) program satisfies that requirement, per the majority finding of the panel. Work experience furthers the educational value of the degree, with the panel stating that on-the-job training is particularly important for STEM graduates to apply the knowledge gained in the classroom setting. Further, the panel found that lawmakers never questioned the statutory support for OPT, even though Congress revised student visas and programs on multiple occasions.

This finding is the result of a 14-year-old lawsuit filed by a technology workers union. They claimed that the Immigration and Nationality Act (INA) solely granted student visas for academic purposes, not for working after completing their degree. With the post-graduate work authorization, or OPT program, DHS has essentially increased the number of available foreign workers competing for positions in the U.S.

In response, the D.C. Circuit found the INA focused solely on the requirements for foreign nationals to come to the U.S. to study via the F-1 visa. The INA does not address or make allowances to address how long these individuals can remain in the U.S. The ability to offer OPT is a matter of Congress.

Those opposed to the OPT program stated that DHS has effectively expanded the number of foreign highly skilled guest workers. With the option to extend OPT to allow foreign STEM grads to remain in the country even longer, individuals may remain giving more guest workers access to work in the U.S. than those who work under the H-1B specialty occupation visa program. As such, DHS is circumventing established foreign worker visas.

If you have questions about your student visa or any other immigration-related issue, contact us at ILBSG. We actively monitor ongoing immigration issues to ensure our clients get the right advice and optimize their chances for a positive outcome.

f-1 Foreign STEM grads OPT