Supreme Court Should Review Foreign-Student Guest Worker Case

ALF has filed an amicus brief urging the Supreme Court to decide whether the Department of Homeland Security (DHS) has authority to allow “F-1” student visa holders to stay in the United States and work for  computer or other technology-sector companies up to 3 years after receiving a Science, Technology, Engineering, or Mathematics (“STEM”) degree.  ALF’s brief takes no position on this important statutory interpretation question, but argues that its resolution will directly affect, one way or another, the size, composition, and permanence of the nation’s crucial, high-technology workforce, and thus, the national, and even global, economy. The brief also explains that given the intense, technology-related competition that the United States continuously faces from foreign adversaries, robust employment in the technology sector is a matter of long-term national security.

Issue Areas:

Effective Education, Free Enterprise, Separation of Powers

Read the Amicus Brief:
Question(s) Presented:

Whether the Immigration and Nationality Act (INA) authorizes the Department of Homeland Security (DHS) to create and operate a “Post-Completion” Optional Practical Training (“OPT”) program that allows holders of “F-1” nonimmigrant student visas to stay and work in the United States (currently up to 3 years) after receiving a university-level STEM degree.

Additional Background:

The INA defines numerous categories of “nonimmigrant aliens” who are eligible for visas allowing them to temporarily study, work, or stay in the United States.  See 8 U.S.C. §§ 1101(a)(15)(A)–(V).  One such visa category, commonly referred to as “F-1,” is for “an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study . . . at an established college [or] university.” 8 U.S.C. § 1101(a)(15)(F)(i). DHS, by regulation, has created a “Post-Completion Optional Practical Training (OPT) Program” that allows F-1 visa holders to stay and work in the United States up to 3 years after receiving a university-level STEM degree. Tens of thousands of F-1 visa holders participate in this program, often competing for employment with American technology professionals.

For more than a decade, the Washington Alliance of Technology Workers (“Washtech”) has pursued litigation challenging the STEM OPT Program, arguing that the INA nowhere authorizes F-1 nonimmigrant alien students to work in the United States. The D.C. Circuit, in a 2 to 1 decision authored by Circuit Judge Cornelia Pillard, held that the program is valid because a more general provision of the INA, 8 U.S.C. § 1184(a)(1), vests DHS with broad authority to set the duration of nonimmigrant visa holders’ stays in the United States, and the conditions under which they may work.  Circuit Judge Karen LeCraft Henderson’s dissenting opinion argues that the statutory criteria allowing F-1 students and other categories of nonimmigrant aliens to enter the United States also govern the conditions under which they may stay and work, if at all. See 50 F.4th 164 (D.C. Cir. 2022).

Circuit Judge Neomi Rao, joined by Circuit Judge Henderson, filed a dissent from the D.C. Circuit’s denial of rehearing en banc.  Washtech then sought Supreme Court review.


ALF’s Amicus Brief:

ALF’ s brief argues that the Supreme Court should review the case because the validity of DHS’s Post-Completion STEM OPT program is enormously important to the tens of thousands of F-1 students who seek to work in the United States after receiving their degrees, to the many U.S. technology- sector employers who depend on their availability, and to the highly educated American science and technology professionals who compete against them for STEM-related employment.

In view of the heavily utilized, policy-driven, STEM OPT guest-worker program at issue, and the lack of a specific INA provision clearly authorizing F-1 students to work in the United States after receiving their degrees, the potential role of the major questions doctrine in addressing the program’s validity is another significant reason why the Court should grant review.

ALF’s brief also explains that the question presented by Washtech’s certiorari petition has even broader significance because the D.C. Circuit majority opinion’s holding concerning DHS authority applies to all categories of nonimmigrant aliens. The case thus presents an important statutory construction issue that has far-reaching, multifaceted, national and international significance.

The Court’s review is needed, therefore, “given the broad practical importance of the question presented, the breadth and potential ramifications of the majority opinion’s interpretation of the INA nonimmigrant alien provisions, the dissenting judges’ contrary views, and the major policy-related decisions underlying the STEM OPT program.”


The petition for writ of certiorari was denied on October 2, 2023.


Email ALF Executive Vice President & General Counsel Lawrence Ebner

Date Originally Posted: May 11, 2023

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