The Supreme Court Refuses to Review Pro-OPT Court Ruling

Most recently, the D.C. Circuit Court ruled that the OPT program was legitimate

By David North on October 4, 2023

On October 2, the United States Supreme Court rejected an appeal to review a circuit court ruling on the Optional Practical Training program.

The OPT program — which is a major foreign worker scheme disguised as an educational program — is probably the second-largest of all the foreign worker programs, smaller only than the H-1B program for high-tech workers.

The case has been in and out of the federal courts for years, and has been pursued vigorously by John Miano, who is counsel to the Immigration Reform Law Institute and sometimes writes for the Center. Miano has argued that the Bush II administration had no right to create the program without the consent of Congress, which it did. The program was expanded — again by executive fiat — by the Obama administration and has been preserved by the Trump and Biden administrations.

Most recently, the D.C. Circuit Court ruled that the OPT program was legitimate, and Miano and his team sought a writ of certiorari, as we reported at the time. In addition to deciding cases after arguments, the Supreme Court has the option to hear, or not to hear, cases brought to them, as in this instance.

The specific issue raised by Miano was whether the Optional Practical Training program, which gives foreign grads of U.S. universities the right to work in the United States for a year after graduation, could have that right expanded by 24 months if they had majored in the STEM fields of science, technology, engineering, and math.

Major and minor U.S. employers like the program for three reasons:

  1. It is subsidized by the government in that employers do not have to pay the usual payroll taxes of about 8 percent;
  2. It is open-ended, all alien grads can qualify, without the expenses and uncertainty of the H-1B program, and;
  3. Many OPT employers (and workers) use it as a step on the way to the more permanent H-1B program.

Miano’s point was that large numbers of citizen and green card workers are displaced by the OPT program. There is no payroll tax exemption for an employer hiring an American STEM worker; it comes only to those who choose foreign workers over American ones.

The Bush II administration created the program by a bureaucratic sleight of hand; they decided that the alien college grads (of our institutions) were still “students” if they enrolled in either the one-year or the three-year version of OPT. This gave the employers of the “students” the tax break mentioned above.

Payroll taxes fund our Medicare, Social Security, and federal unemployment insurance programs; employers who prefer aliens to citizen workers are exempted from subsidizing our sick, elderly, and unemployed. It is an odd arrangement.

Miano has made these comments about the decision:

The key holdings are:

  1. Nonimmigrant visa statutes are strictly entry requirements. This strips Congress of the power to set terms for nonimmigrants in the U.S. and hands that power entirely to DHS.
  2. DHS can allow work on any visa. This allows DHS to continue to undermine the protections for Americans in the immigration system.
  3. Finally, the courts have validated the system of government by dinner party that created the rule.

The last comment relates to the generally accepted story that the OPT program was hatched at a Washington dinner party about two decades ago, a gathering of industry and government officials.