After a 14-Year Battle, D.C. Circuit Rules 2-1 in Favor of OPT Worker Program

By David North on October 5, 2022

After a grueling, 14-year-long battle in the courts, the U.S. Court of Appeals for the District of Columbia Circuit has ruled two to one in favor of the existing Optional Practical Training program — probably the nation’s second-largest foreign worker program, after H-1B, according to a report by Law360.

The lawyers for a small labor organization, notably CIS Fellow John Miano, have argued that the government’s decision some years ago to define alien alumni (for up to three years) as “students” so that they could continue to work in the U.S. was a distortion of the law, and should be ended. Two of the court’s judges (David S. Tatel, a Clinton appointee, and Cornelia Pillard, an Obama appointee) constituted the majority, while Karen LeCraft Henderson, brought to the bench in the Bush I administration, was in dissent. Ironically it was the Bush II administration that created the OPT program, not the Obama administration, as reported by Law360.

The OPT program uses the government’s ability to define a student to allow alien graduates of American universities to continue to be regarded as students, and thus to work in U.S. government-subsidized jobs for one year for those with all majors and for three years for those who majored in the STEM fields of science, technology, engineering, and math. Most OPT workers are in the STEM field.

Though recent DHS data on the size of this population has been opaque, there are presumably about 200,000 alien alumni in the program; it is often used as a bridge between studies in the U.S. and a placement in the H-1B program. People from India constitute a major part of the OPT population, followed by those from China.

The OPT program is beloved by employers because of — as the press routinely fails to mention — an 8 percent cost break for hiring alien college graduates rather than American ones. This savings, which is also enjoyed by some of the aliens, comes from the fact that the OPT workers are formally regarded as “students” and their employers thus are not covered by the payroll taxes that the rest of us pay all our lives. These taxes support the Social Security, Medicare, and federal unemployment insurance programs, and thus it is America’s aging, ailing, and unemployed who are supporting subsidies to employers who decide to hire foreigners rather than Americans — an odd system just given a supporting vote by one of America’s most important courts.

The case has been in district court, then in an appeals court, then in district court again, and to the appeals level, again, over the last 14 years. The union bringing the case is the Washington Alliance of Technology Workers, and lawyer Dale Wilcox also appeared for that organization. The case is 21-5028 in the PACER files.

Perhaps the most quotable line, found in Judge Henderson’s dissent, was her description of the majority’s view of the power of the government to define workers as students as “akin to verbicide”.