OPT Case Still Not Decided after 10 Years

By John Miano on May 29, 2018

Today marks a milestone in my legal career. Ten years ago today I filed my first case in federal court.

In 2008, DHS promulgated a regulation designed to circumvent the quotas on H-1B visas by allowing aliens to work on student visas for up to 35 months after graduation on the Optional Practical Training (OPT) Program.

Ten years ago, we asked the courts whether DHS has the authority to allow non-students to work on student visas and the larger question of whether DHS has the authority to allow aliens to work through regulation.

A decade later, three iterations through the district courts, and four appeals, there is no decision on these questions and the case continues to go on, and on, and on, and on . . . .

Currently, we are awaiting a decision from the D.C. Circuit. However, we have no idea what issues the court will actually decide. The court could dismiss the case (that would mean another case would be filed and the litigation would continue on indefinitely); the court could remand the case to the D.C. District court (in that event, the case would probably take another two years to get back to the D.C. Circuit); or (the best possible circumstance) the court could decide the case, putting it on a path to ending.

Even under the latter outcome, the saga of OPT represents a total breakdown of the system of judicial review of agency actions. When it takes over a decade to get a final decision from the courts on whether an agency action is lawful, the system is simply not functioning.

Worse yet, the failure of the courts to decide the issues in the OPT case has created an explosion of litigation. In addition to the three times through the courts, the very same issues are popping up on other immigration-related cases. This has probably resulted in a 20-fold increase in the work for the courts.

Three years ago, I testified before the Senate Judiciary Committee on the case. One of the committee staff members told me, “Every year the Chief Justice sends us a report that says we need more judges but, when see cases like yours, we realize that, if we doubled the number of judges, the courts would just create more work for themselves and the new judges would be just as busy.”

I know several people who are waiting to write post-mortems on this case. The problem is that those have to wait until the case is over.