Supreme Court doesn't want to hear union's beef about STEM grad work visas

The US Supreme Court has handed foreign students, the tech industry, and academic institutions a final victory by declining to hear a union's appeal against the duration of a STEM work visa.

The program at issue is known as Optional Practical Training, or OPT, and allows international students in America studying on a student visa to work during their studies, or up to one year afterward. Some variation or another of OPT has been around in the US for decades.

Of particular contention in the case is a rule added by the Department of Homeland Security in 2008 and modified in 2016 that extends the program for up to 36 months after graduation. That extension is only available to students seeking employment in the science, technology, engineering or math (STEM) fields.

In other words - with tech companies. 

That STEM extension led to the Washington Alliance of Technology Workers (Washtech), a Communication Workers of America affiliate, filing a lawsuit against the change in a Washington DC federal court way back in 2014. The alliance battled to overturn the extension all the way through the courts to the Supremes, who have now declined to hear the challenge with no explanation other than "petition denied."

Washtech was seeking to have the STEM extension eliminated from the OPT program, returning it to a 12-month limit. Leaving the extension in place, Washtech argued in its pitch to the Supreme Court, would let tech employers bypass the H-1B visa program that the industry uses to fill roles with foreign workers. Bosses can recruit foreigners on a three-year STEM OPT rather than apply for H-1B visas for those workers; a fairly limited number of H-1B visas are issued each year, versus the number of applicants, and are assigned by lottery.

The STEM OPT route therefore can be less of a hassle, plus holders of the visas can apply for a green card during their time in the US and stay in the country permanently, just like H-1B holders can.

On its journey to the Supreme Court, Washtech lost a number of appeals - most crucially a DC Circuit Court of Appeals decision [PDF] last year. In its original case, the union argued Homeland Security didn't have the authority to create the OPT STEM extension, and its appeal of that 2022 decision to the Supreme Court argues that the appeals court ruling was also wrong in its decision to uphold that element of the the dept's power.

According to Washtech, the appeals court essentially "restructur[ed] the entire system of non-immigrant visas … and undermines the system of protections for American workers" in the process.

Washtech received broad support from conservative lawmakers including Senator Ted Cruz (R-TX), who was joined by several of his fellow Republican Senators and 31 Republican members of the House in filing amicus briefs in support of Washtech. Eleven conservative-leaning states also issued an amicus in support of Washtech.

We've asked Washtech for further comment, and we'll let you know if we hear from them.

H-1Bypass?

While the matter has been decided with finality, we can see why some people think the STEM OPT visa is being abused to the point that jobs that could be filled by skilled American workers are instead being taken by foreigners, who are happy to take lower pay and long hours if it means building a life in the United States with their families.

According to a 2022 report [PDF] from the Congressional Research Service, there's no cap on the number of students eligible for the OPT program. In 2007, fewer than 25,000 students participated in the OPT program. By 2017 that number had risen to 204,000, though participation slipped to 164,528 in the pandemic year of 2021. Meanwhile, 85,000 H-1Bs are issued a year.

"Opponents argue that what was initially intended to give students work experience in their field has become a large-scale temporary worker program without safeguards in place to protect US workers and students," the CRS noted in its report. 

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Applications for H1-B visas have skyrocketed, with many worried it's indicative of rampant fraud in the program, generally involving employers making multiple registrations in a bid to game the lottery for staff. And STEM OPT extensions are frequently used by businesses to secure H-1B visas for student workers once their eligibility for OPT expires. 

"While entirely the creation of regulation [and not Congressional action], OPT is now the largest alien guest worker program in the immigration system," Washtech said in its argument to the Supreme Court. 

That doesn't matter, though, because the OPT program and its STEM extension will remain, a decision immigration rights group Fwd.us welcomed.

"The OPT program is more than a lifeline for international graduates; it is a lifeline for the US itself," Fwd.us president Todd Schulte said in a statement.

"By allowing US-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." ®