Brief of Amicus Curiae in Support of Petitioners in the Supreme Court in Washington Alliance of Technology Workers vs. U.S. Department of Security et al.

By George Fishman and Julie Axelrod on June 1, 2023


The D.C. Circuit Court of Appeals’ decision, Wash All. of Tech Workers v. DHS, 50 F.4th 164 (D.C. Cir. 2022), is fundamentally flawed because it

  1. failed to find arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), the Department of Homeland Security’s (“DHS”) rule, 81 Fed. Reg. 13040 (Mar. 11, 2016) (“2016 Rule”), extending the length of post-graduation Optional Practical Training (“OPT”) for certain alien participants in the “F” nonimmigrant foreign student program, 8 U.S.C. § 1101(a)(15)(F)(i), in a blatant attempt to subvert Congress’ goal of protecting American students when it twice increased only temporarily the numerical cap on the “H-1B” nonimmigrant worker program, 8 U.S.C. § 1101(a)(15)(H)(i)(B), and
  2. does fundamental harm to the Immigration and Nationality Act (“INA”) by confining the requirements Congress set forth for the F program, and potentially for all other nonimmigrant programs, to the visa-issuance process -- negating any need for aliens to continue to comply with them once admitted to the U.S., in conflict with the precedent of this Court and multiple Circuits.

For these reasons, this Court’s review is crucial.

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