Overreach on OPT May Kill the Goose that Laid the Golden Eggs

By John Miano on October 30, 2017

I recently wrote about the lack of a legal basis for the Optional Practical Training program ("OPT"). OPT is a guestworker program that was created entirely through regulation, operating under the student visa program. Under OPT, DHS allows aliens to remain in the United States for years after graduation (i.e., when they are no longer students) and work.

A reporter who read my history of OPT called me last week. Another source had told her that the courts found OPT to be legal and she wanted an explanation of this apparent contradiction. Specifically, she mentioned an opinion in the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security case and said she was told that this opinion stated OPT was legal and will make it difficult for the Trump administration to roll back the program.

Yes, that opinion does state OPT is lawful, but there are several problems with the legal analysis she related. You are not going to see this in Google Scholar, but if you go to Lexis (other legal data providers will show similar) and look up the opinion, you find that it is displayed with this with a big red stop sign (or similar indication):



Follow the provided links to the subsequent history of the case and you find the D.C. Circuit vacated this opinion:



This opinion the reporter cited is legal nullity now that it has been vacated. Thus it provides no legal support for the proposition that OPT is lawful.

The second problem with the reporter's analysis is that this is a district court opinion, so it would not establish precedent even if it had not been vacated.

In theory, another court might adopt the reasoning of the district court here. However, that is extremely unlikely. The district court's opinion is based on the premise that the definition of student visa status can be read as merely being an entry requirement and that DHS is free to allow aliens to do whatever they want once they arrive. An appeals court is going to realize that such an interpretation would create chaos in the immigration system: Get a tourist visa and then DHS can allow you to work through regulation? This interpretation also ignores the provision in the student visa status definition that requires the alien to be a student, pursuing a course of study at an academic institution that will report termination of attendance. That can hardly be read as an entry requirement. In addition, this interpretation ignores other immigration provisions that require aliens to maintain the status for which they were admitted.

But, as I told this reporter, "Bad sources make bad articles."

After nine and half years of litigation, the courts have not been able to reach a final decision on whether OPT is legal or not. That is a story in itself. The litigation on OPT continues with no end in sight.

I imagine that the legal difficulty the Trump administration is having with the OPT regulations right now is that they face an all-or-nothing proposition. My guess is that that they wanted to roll OPT back to its original one-year length where it could return to being a short internship program by claiming the extensions to OPT made in 2008 and 2016 were unlawful. Now they have probably done their research and found that, if the OPT extensions were unlawful, the entire OPT program is unlawful.

If the OPT program does get invalidated by the courts, it will be a classic example of killing the goose that laid the golden egg. OPT would have gone on indefinitely if Microsoft had not gotten DHS to turn it into an H-1B substitute.