Supreme Court rejects IT worker challenge of OPT

The U.S. Supreme Court declined to hear a case brought by IT workers challenging the legality of the Optional Practical Training program. The court's decision came Tuesday without comment.

The OPT program permits science, technology, engineering and math graduates to work for up to three years under an F-1 student visa. The lawsuit, filed by the Washington Alliance of Technology Workers (WashTech), contended that the program, which was created without authorization from Congress, introduced unfair competition in the IT labor market.

John Miano, the attorney representing WashTech in this case, said the court's decision means "it's the end of the road" for this effort. WashTech is a state labor organization of the Communications Workers of America, an affiliate of AFL-CIO.

Miano believes the implications of the court's decision are "just staggering." He said it "strips Congress of the ability to control nonimmigrant programs," such as OPT, the H-1B visa program and others designed to provide temporary guest workers.

In the most extreme example of what the decision might allow, Miano said it theoretically enables the White House to let people on tourist visas work.

The decision "gives more authority to the federal government to do what it wants," he said.

Despite the Supreme Court's decision, the challenge to the OPT had received significant backing. A group of Senate Republicans, including Sen. Ted Cruz (R-Texas), argued in briefs filed with the court that the federal government was using the OPT program to sidestep the annual H-1B visa cap. More than 30 Republican House members also filed a brief in support.

Eleven states -- Alabama, Idaho, Indiana, Kansas, Mississippi, Missouri, Montana, Nebraska, North Dakota, Tennessee and Virginia -- also supported WashTech's case.

Unlike the H-1B visa with its annual cap of 85,000, the OPT program does not have a cap. OPT use has increased from less than 25,000 in 2007 to approximately 165,000 in 2021.

Industry and educational groups filed briefs in support of the case. Todd Schulte, president of FWD.us, an industry group focused on immigration, said in a statement that the Supreme Court's action "is great news for tens of thousands of international students seeking to contribute their talents to the United States."

"By allowing U.S.-educated scientists, researchers, and engineers to gain hands-on experience in their fields of study, OPT fuels our economy, strengthens our global competitiveness, and bolsters our national security," Schulte said.

At a hearing last month before the Senate Committee on the Budget exploring the impact of immigration, Ron Hira, an associate professor of public policy at Howard University, said the U.S. administration of the OPT program is so poor that "the program has effectively no controls, accountability or worker protections."

Hira has argued that OPT graduates are directly competing with recent U.S. graduates.

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.