Litigation and Court Decisions

October 5, 2023

Supreme Court Denies Certiorari in WashTech Litigation

Following the D.C. Court of Appeals decision upholding the STEM Optional Practical Training (OPT) regulations in October 2022, the Washington Alliance of Technology Workers (WashTech) filed a petition for certiorari with the U.S. Supreme Court in May 2023.  On October 2, 2023, the Supreme Court denied WashTech's petition, ending litigation that began in 2016.  This leaves in place the lower courts' decisions that the Department of Homeland Security has the legal authority to create and maintain its F-1 OPT program for F-1 students. 

U.S. Federal District Court Rules Biden Administration's DACA Regulation Invalid

On September 13, 2023 the U.S. District Court for the Southern District of Texas ruled that the Biden Administration's regulation seeking to preserve the DACA program violates the Administrative Procedure Act.  The regulation was published in August 2022 and was set to take effect October 31, 2022.  The Court's ruling allows the DACA program to continue for current DACA beneficiaries who can apply for renewal of DACA and DACA employment authorization, but prohibits the Immigration Service from adjudicating applications for new DACA benefits.  The statement issued by the Department of Homeland Security can be found here.

October 10, 2022

U.S. Court of Appeals Affirms Validity of OPT/STEM OPT in WashTech Litigation

On October 4, 2022 the U.S. Court of Appeals for the District of Columbia Circuit denied WashTech's motion for summary judgement, deciding that DHS has the authority to authorize OPT and STEM OPT employment for F-1 students.  The WashTech litigation began in the U.S. District Court for the District of Columbia in June 2016 as a challenge to the OPT and STEM OPT rules and has been ongoing.  Dartmouth previously joined other colleges and universities in signing onto amicus briefs filed with the courts in support of OPT and STEM OPT employment. 

September 17, 2021

U.S. District Court Vacates DHS Rule Seeking Wage-Based Selection Process for Cap-Subject H-1B Petitions

On September 15, 2021 the U.S. District Court for the Northern District of California found that the Dept of Homeland Security rule entitled "Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petition" should be set aside because the Acting DHS Secretary at the time the rule was enacted had not been lawfully appointed.  The rule sought to prioritize selection of H-1B registrations based on wages and other factors. 

February 1, 2021

Federal Court Ends WashTech OPT Litigation

On January 28, 2021, the U.S. District Court for the District of Columbia granted summary judgment to the defendants and intervenors in the Washington Alliance of Technology Workers (Washtech) v. U.S. Department of Homeland Security litigation, ending the plaintiff's challenge to the F-1 Optional Practical Training (OPT) and STEM OPT programs. The decision confirms that the Department of Homeland Security (DHS) did not exceed its authority in issuing the 2016 OPT program rule. The WashTech litigation began in 2016, with the plaintiffs arguing that DHS did not have the authority to promulgate either the 12-month OPT program or the 24-month STEM extension of OPT. Following the Court's most recent decision, WashTech filed an appeal with the D.C. Court of Appeals.

August 4, 2020

Supreme Court Allows Public Charge Rule to be Enforced

In November 2019 the U.S. District Courts for the Southern District of New York, Northern District of California, Eastern District of Washington, the Northern District of Illinois and the District of Maryland issued orders stopping Department of Homeland Security from implementing and enforcing the final rule on Public Charge.  Most of the injunctions were nationwide and prevented USCIS from implementing the rule anywhere in the U.S.  

On January 27, 2020, the U.S. Supreme Court granted the federal government's request for a stay of the nationwide injunction against the Department of Homeland Security's Public Charge rule, allowing the rule to go into effect nationwide except in the State of Illinois, where a statewide injunction of the rule is still in effect.  This means that the agency can implement the rule while litigation challenging the rule continues. 

On July 29, 2020 the U.S. District Court for the Southern District of New York issued two separate orders enjoining the Department of Homeland Security and the Department of State from enforcing the public charge rule during the COVID-19 crisis. 

August 04, 2020

Status of DHS Unlawful Presence Memo

In August 2018 USCIS issued a Memorandum implementing a major change to how the agency determines whether an F or J visa holder has "overstayed" their period of authorized stay in the U.S.

The change in policy took effect on August 9, 2018. NAFSA, the Association for International Educators, has a helpful summary of the changes.

Dartmouth joined more than 60 U.S. colleges and universities in signing onto an amicus brief filed in support of a legal challenge to the unlawful presence policy.  The brief was filed in the U.S. District Court for the Middle District of North Carolina on December 21, 2018, in support of a lawsuit filed by Guilford College and four other plaintiffs against Secretary of Homeland Security Kirstjen Nielsen.   The amicus brief argued that the new unlawful presence policy harms international students and scholars holding F, J and M status, and the institutions which host them.

On May 3, 2019 the U.S. District Court issued a nationwide injunction temporarily blocking the Department of Homeland Security from enforcing the unlawful presence policy.  The Court injunction will continue until the litigation is resolved. OVIS will continue to monitor the case as it develops and will update our website. 

On February 6, 2020 the U.S. District Court issued a permanent injunction invalidating the 2018 Unlawful Presence memo. The injunction was implemented nationwide.

In April 2020 Department of Homeland Security appealed the District Court's decision to the Fourth Circuit Court of Appeals, but on July 31, 2020 the agency filed a motion to dismiss its own appeal.  On August 3, 2020 the Fourth Circuit dismissed the appeal, ending the litigation on the Unlawful Presence policy change. It is still possible that the federal government will seek to adopt this change through the rulemaking process and introduce it as a new regulation rather than a change in policy.  OVIS will provide updates as new information becomes available.

July 15, 2020

Government rescinds July 6 SEVP guidance and July 7 FAQs

At the July 14, 2020 federal court hearing in the lawsuit filed by Harvard and MIT, the federal government agreed to rescind its July 6 policy directive and the accompanying FAQs released on July 7.  The government plans to revert to the guidance issued in March 2020.   Dartmouth's press release can be found here.

July 12, 2020

Dartmouth Joins Amicus Brief Supporting Legal Challenge to Recent ICE/SEVP Guidance

On July 12, 2020, Dartmouth joined with 58 other institutions of higher education to file an amicus brief with the U.S. District Court for the District of Massachusetts supporting Harvard and MIT's legal challenge to the implementation of the July 6 ICE/SEVP guidance. 

The amicus brief is attached here.