Yesterday, Landmark filed an amicus brief at the U.S. Supreme Court, arguing on behalf of the petitioner in Washington Alliance of Technology Workers v. United States Department of Homeland Security, et al. We hope that the Court will accept this unique opportunity to correct the Biden administration’s dangerously broad interpretation of our nation’s immigration law.

Over the past two decades, the Department of Homeland Security has created a program that allows nonresidents on F-1 student visas to stay in the country for up to three years after graduation.  This so-called Optional Practical Training (“OPT”) program has no basis in the immigration scheme established by Congress. This case, colloquially known as Washtech, challenges the unlawful program.

The OPT exemplifies the most pernicious elements of America’s immigration law. It was first formulated over cocktails, during a private meeting between a Microsoft lobbyist and the Secretary of Homeland Security. Microsoft, alongside other big tech corporations, was unsatisfied with the limited amount of H1-B workers available for employment. These foreign workers, who compete with Americans for job openings, are subject to a strict quota established by Congress in the Immigration and Naturalization Act (“INA”). Microsoft correctly hoped that the OPT would create an end run around these quotas.

In its current iteration, the OPT enables over 200,000 nonresidents to work in the United States despite being admitted under a student visa. The majority of these OPT graduates come from STEM fields, and often work for large tech companies. Moreover, the petitioners assert, “the OPT program has grown to surpass H-1B as the largest guestworker program in the entire immigration system.”

This massive worker program exists in plain contradiction of the F-1 student visa requirements. These requirements, laid out by Congress in the INA, state that a nonimmigrant student must be “a bona fide student” who seeks to enter the Country “temporarily and solely for the purpose of pursuing… a full course of study.”  But as we argue in our brief, a “full course of study… at an established college [or] university” does not encompass working for Microsoft.

The DHS points out that they have the authority to set the “time and conditions” for an immigrant’s entry into the United States. Traditionally, this clause was interpreted by courts to empower the DHS to administer deportations and the general process of entry into the United States. Ignoring this extensive history, the DHS claims that this “time and conditions” clause confers plenary authority to create new visa programs by regulatory fiat. This assertion is false.

Only Congress can establish a novel class of visaholders. The DHS may only administer those legislative perogatives. In breaching this well-established principle, the DHS, and the D.C. Circuit who upheld their erroneous reading of the law, have created a circuit split with every other federal court of appeals. Never before has a federal court endorsed such a brazen reading of the INA. The Supreme Court must accept this petition for certiorari to correct the error.

In this case, Landmark is facing off against some of the most powerful special interests in America. At the circuit level, groups such as Apple and SAP filed amicus briefs in defense of the OPT. Fortunately, among the amici at SCOTUS, we are joined by other constitutionally-minded writers including Senator Ted Cruz and conservative state Attorneys General. These amicus briefs will hopefully encourage the Court to recognize the importance of this issue.

Landmark will continue to closely monitor Washtech’s progress at the Supreme Court. Likewise, we will remain vigilant in defending the rule of law as it is applied to the essential arena of immigration.

Read our brief.