Why is an
amicus
brief in the WashTech case important?
On July 1, the federal district court judge in the
WashTech
case (
Washington Alliance of Technology Workers v. U.S. Department of Homeland Security)
held that the lawsuit, which began a number of years ago, be allowed to move forward.
The lawsuit challenges DHS’s statutory authority to implement the OPT program, including the 24-month STEM rule and the standard 12-month OPT. If the challenge succeeds, OPT could end. At the same time, the court ruled that organizations seeking to be intervenors so that they could defend OPT had standing to do so (the intervenors, Information Technology Council, National Association of Manufacturers, and Chamber of Commerce, are represented by Paul Hughes).
So now, there is an opportunity for the intervenors to defend the legality and implementation of OPT as well as for others to file
amicus
briefs in the case. The unique perspective of colleges and universities as to the important educational and training components of OPT is especially relevant.
It should be noted that one of the questions in the
WashTech
case has been whether the government will fully defend the legality of OPT. This is a concern, especially in light of signals from the U.S. Department of Homeland Security that it is planning to propose significant revisions to the OPT and OPT STEM program.
On Monday, July 22, the government filed a response in the
WashTech
case that thus far indicates that the U.S. Department of Justice plans to defend OPT. That is good news. We will continue to watch this closely.
Why is defending OPT important for higher education
- OPT permits foreign students studying in the United States on F-1 visas (except those in English language training programs) to pursue “practical training” with a U.S. employer in a position directly related to their course of study. The program allows students to supplement their higher education degree program with valuable experiential learning and training as they start their careers, as their domestic counterparts are able to do.
- A student can apply to U.S. Citizenship and Immigration Services for authorization to engage in OPT during his or her academic program (“pre-completion OPT”) or after completing the academic program (“post-completion OPT”). A student can apply for 12 months of OPT at each education level (e.g., one 12-month OPT period at the bachelor's level and another 12-month period at the master's level). While school is in session, the student may work up to 20 hours per week pursuant to OPT.
- Importantly, the internship, training, and career preparatory work opportunities that are available through OPT are part of the broader educational life cycle for all students, when they are enrolled and beyond graduation
- Access to OPT attracts international students, and is vital to the recruitment efforts of higher education institutions in the U.S. Indeed, many competitor countries like Australia and Canada have similar programs that attract students away from the United States.
Timeline for the case and
amicus
brief
A status conference in the case is scheduled for early August, following which we should have more information on the briefing schedule in the case and next steps. At this point, we anticipate that briefs may be due in late September or October.
Next week, we will share a one pager for campuses on tips and guidance for gathering campus information and student narratives that could be used for inclusion in the
amicus
brief, and more information on joining the brief.
We are working closely with NAFSA staff, members of the Alliance's Legal Advisory Council, Jenner & Block, and others in developing these materials.
