U.S. Educated Noncitizens Targeted Once Again
The Washington Alliance of Technology Workers (“Washtech”) has once again filed a lawsuit against foreign students in F-1 status from gaining post-graduation practical experience. Washtech is a union of science, technology, engineering, and math (STEM) workers that is challenging the twelve-month Optional Practical Training (OPT) program that matches F-1 students with temporary employment in their field of study as well as a 2016 rule that allows certain STEM graduates to extend their OPT. The union claims that Congress never gave the U.S. Department of Homeland Security authorization to allow F-1 students to remain in the U.S. after graduation or have a practical training program that does not include the same protections to U.S. workers that exist with H-1B visas.
In the past, Washtech successfully challenged the 2008 DHS rule, which allows F-1 students to receive up to a seventeen-month extension of their training. A court ruled that the 2008 was invalid because DHS failed to follow proper procedures of giving public notice and time to comment on the rule before issuing it. The 2008 rule was replaced with the current STEM OPT extension 2016 rule, which includes more stringent training requirements.
In the current case, the court rejected Washtech’s challenge to the 2016 rule, stating that the DHS does have the authority to allow F-1 students to extend their training. The court acknowledged that U.S. workers were protected under the H-1B visas and not F-1 visas, but stated that the two were “integrally related” because both require higher education. F-1 visas are for foreign students, including those studying at universities and H-1B is for jobs that at least require a bachelor’s degree.
Even though the court rejected Washtech’s challenge to the 2016 rule, Trump’s “Buy American Hire American” Executive Order directs the DHS Secretary to “supersede or revise” existing rules in order to protect U.S. workers. This may cause a rebuttal on the court’s decision on Washtech versus the DHS Extension.