Washtech v. DHS: OPT and STEM OPT have a legal basis, and the challenge failsWashington Alliance of Technology Workers v. DHS, 50 F.4th 164 (D.C. Cir. 2022)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

Case at a glance

Background

The statutory definition of an F-1 student (INA 101(a)(15)(F)(i)) is a bona fide student who seeks to enter the United States temporarily and "solely for the purpose of pursuing" a course of study. The statute says nothing about "working after graduation" or "practical training." Post-graduation practical training was created by immigration authorities through regulation: student practical training appeared in regulations as early as 1947 and later developed into today's Optional Practical Training (OPT).

Under the current framework, an F-1 student can generally receive up to 12 months of OPT after completing each degree level; a student with a qualifying STEM (science, technology, engineering and mathematics) degree who is employed by an employer enrolled in E-Verify can apply for an additional 24-month STEM OPT extension. For many international students — for example, students from China — OPT and STEM OPT are an important bridge for staying in the United States to work after graduation and entering the H-1B lottery. See the F-1 student visa and OPT guide.

The Washington Alliance of Technology Workers (Washtech), a labor organization representing U.S. technology workers, has long argued that OPT puts foreign students in competition with American workers for jobs and that DHS has no statutory authority to create such a "work program."

Facts

• First round of litigation: Washtech first challenged the 2008 rule that set the STEM extension at 17 months. In 2015 a federal district court vacated that rule because it had not gone through notice-and-comment procedures, but stayed the vacatur to give DHS time to cure the procedural defect.
• The 2016 STEM OPT rule: After notice and comment, DHS published a new rule on March 11, 2016, lengthening the STEM extension to 24 months and adding training-plan and employer-obligation requirements; it took effect on May 10, 2016.
• Second round of litigation: In June 2016 Washtech sued again, arguing that DHS lacked authority to create OPT and STEM OPT. After several rounds of proceedings, the district court held in 2019 that the 2016 rule had effectively "reopened" the 1992 12-month OPT rule, so the plaintiff's challenge to OPT as a whole was not time-barred. In January 2021 the district court ruled for DHS, with the National Association of Manufacturers, the U.S. Chamber of Commerce and others supporting DHS as intervenors. Washtech appealed.

Issues

1. Does Washtech have standing?
2. Does the F-1 definition mean that a student may not remain in the United States in F-1 status once studies are complete?
3. Does DHS have statutory authority to allow F-1 students to engage in practical training related to their field of study after graduation, including the 24-month STEM extension?

What the court held

Standing: established

The court held that Washtech's members work in STEM jobs and had applied for jobs with employers that hire OPT students; OPT increases the competition they face, which supports "competitor standing."

Majority: the F-1 definition sets conditions for entry, not limits on remaining after graduation

Judge Pillard's majority opinion reasoned that the F-1 definition sets out the conditions a foreign national must meet to be admitted as a student; it does not require students to leave on the day they graduate. Reading every element of the definition as a condition that must be continuously met during the stay would produce unreasonable results; the plaintiff itself conceded that a post-graduation grace period is lawful.

Majority: INA 214(a) authorizes DHS to set the "time" and "conditions" of a stay

INA 214(a)(1) provides that the admission of nonimmigrants shall be for such time and under such conditions as regulations prescribe. The majority reasoned that this authority is constrained by the purpose of the F-1 category but is not limited to the literal words of the definition; it is enough that the regulation is reasonably related to the purpose of pursuing a "course of study." OPT, which is tied to the student's field, requires a school's recommendation and is supervised by the school, the employer and DHS, meets that requirement. Permitting employment is also among the "conditions" the statute authorizes.

History and congressional acquiescence

The majority also noted that post-graduation practical training for students dates back to 1947, that Congress was aware of the practice when it enacted the Immigration and Nationality Act in 1952, and that Congress has since amended the F-1 and nonimmigrant employment provisions many times without disapproving OPT. The court viewed this as further support for DHS's interpretation.

Judge Henderson's dissent

Judge Henderson concurred in part and dissented in part. She dissented on the merits, concluding that allowing students to continue working in F-1 status after completing their studies exceeds the authority granted by statute.

A detail worth noting: Chevron

After concluding that the most natural reading of the statute supports DHS, the majority added, as an alternative ground, that even if the statute were ambiguous, DHS's interpretation was reasonable and would be entitled to deference under the Chevron doctrine. In 2024, the Supreme Court overruled Chevron in Loper Bright. However, Washtech's main reasoning is an analysis of the statutory text, history and congressional acquiescence, and the Supreme Court has already denied certiorari, so the outcome of this case is not directly affected. But if a new lawsuit challenges OPT or changes to it in the future, the court will no longer rely on Chevron deference and must decide for itself the best reading of the statute.

What it means for applicants

• F-1 students: OPT (up to 12 months) and the STEM OPT extension (24 months) remain in effect, and you can apply for work authorization on Form I-765 under the current rules. Washtech removed the near-term risk that a court would eliminate OPT for "lack of statutory authority."
• Employers: Employers of STEM OPT students must meet the training plan (I-983), E-Verify and other requirements; these are part of the 2016 rule, and compliance records are subject to review.
• Limits to keep in mind: The case answered only whether DHS has the authority to create OPT; it did not say DHS must keep OPT. OPT is set by regulation, and DHS can modify, tighten or even eliminate it through notice and comment; Congress can also change it by statute.

Later developments (as of October 9, 2026)

1. DHS says it is re-evaluating OPT (early 2026): Reportedly, in a January 9, 2026 letter responding to Senator Eric Schmitt, the Secretary of Homeland Security said the department was re-evaluating the scope and duration of OPT (including STEM OPT) and might propose changes to the practical training rules (the letter was made public in late February 2026); a related rulemaking also appears on the federal regulatory agenda. As of October 9, 2026, no proposed rule shortening or eliminating OPT had been published in the Federal Register.
2. Proposed OPT fee rule (October 8, 2026): U.S. Immigration and Customs Enforcement (ICE) published the "Optional Practical Training Fees" proposed rule (RIN 1653-AB01) in the Federal Register, proposing new fees for OPT recommendations: one tier for initial OPT and another for subsequent OPT (including STEM OPT extensions), to be paid by the school before the designated school official (DSO) enters the OPT recommendation in SEVIS (schools may pass the cost on to students or employers); no additional fee for changing employers. The public comment period runs through November 9, 2026. DHS said in the proposal that the fee is only a "first step" and did not rule out further changes to OPT. This is only a proposed rule and has not taken effect; the final content and fee amounts will be those in the final rule published in the Federal Register.
3. The final rule ending "duration of status" (D/S) has been postponed: On July 17, 2026, DHS published a final rule replacing "duration of status" for F, J and I nonimmigrants with fixed admission periods, originally effective September 15, 2026; the rule does not eliminate OPT but would change the period of stay and the extension procedure during OPT. On September 14, 2026, in a suit brought by higher-education groups, NAFSA, labor unions and others, the U.S. District Court for the District of Massachusetts postponed the rule's effective date under section 705 of the Administrative Procedure Act and barred DHS and ICE from taking further steps to implement it, with nationwide effect; the government appealed to the First Circuit on September 30, 2026. The existing D/S system continues to apply for now.

These developments are still evolving; check the current announcements of DHS, ICE (SEVP) and USCIS for the rules in effect. For the status of each case, see the immigration litigation tracker.

Practical tips

• Current students should plan their OPT filing timeline under the current rules and talk early with the school's international student office (DSO); do not delay or give up an application because of rumors.
• Watch for the final version and effective date of the proposed OPT fee rule; if your OPT application will be filed close to the date the rule takes effect, confirm with your school which rules apply.
• During STEM OPT, make sure the employer is enrolled in E-Verify, that the I-983 training plan is followed as written, and that employment changes are reported as required.
• If you plan to change to H-1B or another status, evaluate the timing in advance; H-1B and other work visa rules have changed frequently in recent years, so verify the latest rules before filing.

Frequently asked questions

Opinion text and sources

• Washtech v. DHS, No. 21-5028 (D.C. Circuit opinion)
• Supreme Court docket No. 22-1071 (certiorari denied October 2, 2023)
• 2016 STEM OPT rule (81 FR 13040)
• Proposed OPT fee rule (Federal Register, 91 FR 64566, October 8, 2026)
• Final rule ending D/S (Federal Register, July 17, 2026)
• 8 CFR 214.2 (including F-1 practical training rules)

Related reading

• F-1 student visa and OPT guide
• Form I-765 explained: applying for work authorization
• H-1B visa guide
• Loper Bright explained
• Immigration litigation tracker (as of October 9, 2026)

This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.