Latest Update on OPT Case

By John Miano on November 6, 2018

The focus of this latest update on the Optional Practical Training (OPT) program litigation is "group theory". For those of you who have not studied advanced algebra, mathematicians define groups where the rules of arithmetic differ from the norm, such as having a group where 2+2 = 5 or where the value of 2+3 is different from the value of 3+2.

The OPT program now allows aliens admitted on student visas to remain in the United States for up to 42 months after they graduate to work or be unemployed.

The Washington Alliance of Technology Workers ("Washtech") v. U.S. Department of Homeland Security lawsuit presents the federal courts with a simple question of law: Are aliens who have graduated from college, and who are working full-time, bona fide students solely pursuing a course of study at an approved academic institution that will report their termination of attendance?

That simple question has been before the courts for over a decade of litigation with no final decision.

Two years ago, DHS made a motion to dismiss the case in the U.S. District Court for failure to state a claim and lack of jurisdiction (i.e., the plaintiffs lacked standing). The District Court held that Washtech had standing, but dismissed the case for failure to state a claim.

Appeal followed and in June the D.C. Circuit reversed and remanded the case back to the District Court.

The District Court permitted DHS to make yet another motion to dismiss. Two weeks ago DHS again moved that the case should be dismissed for lack of jurisdiction and failure to state a claim.

DHS's main argument for dismissal is that it claims the six-year statute of limitations to challenge a regulation published in 2016 expired in 1998.

You can't make this stuff up folks. That's how a case like this drags out over a decade.

The only remaining issue in the case is the question of law described previously. When a defendant moves that the plaintiff has failed to state a claim and that claim is purely a question of law, the court can decide the merits of the claim.

Therefore, Washtech asked the District Court to decide the question of law as part of DHS's motion. The court has to do an opinion anyway. It should not take much space to hold that 2016 + 6 = 2022 and not 1998. So the court might as well just decide the issue and put the case on track to ending.

If the court agrees, by February we could get a district court opinion on whether alien graduates working full-time are students.

Also in the case, the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, and the Information Technology Council moved to intervene as defendants. The folks at DHS must have started wolfing down Rolaids when they saw the motion because the affidavits in support of intervention undermined DHS's defense of OPT.

Both Washtech and DHS opposed the motion. I expect that the motion will not be granted because NAM et al. did not follow the rules to intervene. But those affidavits from the business groups will be a gift that keeps on giving to the end of this litigation.