Supreme Court Ends Legal Challenge to STEM OPT Program

On October 2, 2023, the U.S. Supreme Court ended a multi-year legal challenge to a popular program that temporarily expands the applicant pool for difficult-to-fill positions while providing practical training for international students. The Court has refused to hear a union challenge to the validity of the Optional Practical Training (OPT) and STEM OPT programs. These programs allow employers to hire international college students and recent graduates. Employment authorization under OPT is limited to 12 months or less. The STEM OPT program allows certain students who receive science, technology, engineering, and mathematics (STEM) degrees to get a 24-month extension of their post-graduation employment eligibility under OPT. 

In 2014, a union representing technology workers initiated a challenge to the legality of OPT and STEM OPT. Six years later, the U.S. Court of Appeals for the D.C. Circuit held that OPT and STEM OPT programs were legal. This year, the union petitioned the Supreme Court for review of the lower court decision. The October 2^nd Supreme Court refusal to review the decision ends the litigation.

Programs giving limited employment eligibility for international students through optional practical training have existed since 1947. In 1991, the OPT program was split into pre-graduation and post-graduation employment eligibility. In 2008, the STEM OPT post-graduation program was established to extend the employment eligibility for STEM graduates. Within the last year, the federal government expanded the kinds of degrees that satisfy the eligibility requirements for the STEM OPT program. More than 200,000 people are currently eligible to participate in OPT and STEM OPT. Employers taking advantage of STEM OPT must show that the employee is not replacing a U.S. worker and will receive similar pay to the employer’s similarly situated U.S. employees.

For more information on OPT and STEM OPT, see https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/optional-practical-training-opt-for-f-1-students.