International Students May Continue To OPT-In To Post-Graduate Employment

• Jurisdiction: United States,Federal
• Published date: 19 October 2023
• Subject Matter: Employment and HR, Government, Public Sector, Immigration, Employee Rights/ Labour Relations, Terrorism, Homeland Security & Defence, General Immigration
• Law Firm: Mayer Brown
• Author: Ms Elizabeth Espín Stern, Grace Shie and Morgan Bailey
• topic: Business of Law,Administrative Law,Constitutional Law,Intellectual Property,Immigration Law,Employment Law

The US Supreme Court has declined to consider a lawsuit that sought to eliminate a work authorization program widely utilized by foreign graduates of US universities. The move affirms a lower court decision which found that the Department of Homeland Security (DHS) acted within its regulatory mandate when adopting rules that allow students in F-1 status to work in the United States for up to three years after graduation. The Supreme Court's denial of a writ of certiorari ensures that foreign graduates may continue working through DHS's Optional Practical Training (OPT) program, eliminating a source of uncertainty for students, universities, and employers alike.

Congress expressly authorizes employment for only select visa categories. According to several Senators and some observers, the broader implication of the Supreme Court's decision is to effectively strip Congress of its authority to control the employment eligibility of non-immigrants, ceding that authority to the executive branch.¹ Accordingly, the executive branch is now empowered to grant employment eligibility to a wide range of non-immigrants'in 22 categories'including the dependent spouses of principal non-immigrant applicants.²

Effect on Employers

This outcome can be viewed positively by some employers, as the program offers access to a broad pool of international students and graduates who have been educated in the United States, providing them with a diverse set of skills and perspectives.³ Further, OPT may make it easier for organizations to attract and retain global talent, particularly in industries facing skills shortages or in need of specialized expertise'thus fulfilling short-term staffing needs and addressing skills gaps, which can be crucial for industries with dynamic labor demands. In some instances, international students may bring unique ideas, knowledge, and cultural insights that may enhance a company's innovation and international competitiveness. Advocates of OPT also note that it aids in retaining global talent, as well as maintaining the international appeal of US educational institutions by allowing students to apply their knowledge in a practical post-graduation setting.

Increasing Usage of Optional Practical Training

More than one million international students attended US universities in 2022, with the majority of them entering on F-1 visas.⁴ More than half of these students were pursuing master's and doctoral degrees. Under a series of regulations dating back to the...