WA Alliance of Tech. Workers v. DHS

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2021 Decided October 4, 2022

No. 21-5028

WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
APPELLANT

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01170)

John M. Miano argued the cause and filed the briefs for
appellant. Dale L. Wilcox entered an appearance.

Julie Axelrod and Richard P. Hutchison were on the brief
for amici curiae Landmark Legal Foundation, et al. in support
of appellant.

Joshua S. Press, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause for appellees. With
him on the brief were Brian M. Boynton, Acting Assistant
Attorney General, and Glenn M. Girdharry, Assistant Director.
 2
Paul W. Hughes argued the cause for intervenor appellees.
With him on the brief were Andrew A. Lyons-Berg, Daryl
Joseffer, Paul Lettow, and Jason Oxman.

Leslie K. Dellon was on the brief for amici curiae
American Immigration Council and American Immigration
Lawyers Association in support of appellees.

Sean H. Donahue, Andrew D. Silverman, and Elizabeth R.
Cruikshank were on the brief for amici curiae FWD.us, et al.
in support of appellees.

Ishan K. Bhabha was on the brief for amicus curiae The
President’s Alliance on Higher Education and Immigration in
support of appellees.

Megan C. Gibson was on the brief for amicus curiae
Niskanen Center in support of appellees. Ciara W. Malone
entered an appearance.

Before: HENDERSON, TATEL, * and PILLARD, Circuit
Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion concurring in part and dissenting in part by
Circuit Judge Henderson.

PILLARD, Circuit Judge: Since before Congress enacted
the Immigration and Nationality Act of 1952 (INA), the
Executive Branch under every President from Harry S. Truman
onward has interpreted enduring provisions of the immigration

*
Judge Tatel assumed senior status after this case was argued and
before the date of this opinion.
 3
laws to permit foreign visitors on student visas to complement
their classroom studies with a limited period of post-
coursework Optional Practical Training (OPT). A 1947 Rule
allowed foreign students “admitted temporarily to the United
States . . . for the purpose of pursuing a definite course of
study” to remain here for up to eighteen months following
completion of coursework for “employment for practical
training” as required or recommended by their school. That
program has persisted and been continually updated across the
ensuing seventy years.

Today, over one million international students come to the
United States each year on student visas, and over one hundred
thousand of them complete a period of practical training. See
U.S. Immigration and Customs Enforcement: Student and
Visitor Exchange Program, 2021 SEVIS By the Numbers
Report 2, 4-5 (April 6, 2022). The current Department of
Homeland Security (DHS) OPT Rule authorizes up to one year
of post-graduation on-the-job practical training directly related
to the student’s academic concentration, with up to 24
additional months for students in science, technology,
engineering and mathematics (STEM) fields. The OPT Rule
requires an applicant for practical training to be enrolled on a
full-time basis at an authorized academic institution that
requires or recommends it as directly related to the student’s
coursework. The practical training must be approved by both
the school and DHS, the student must be registered with DHS
as an OPT participant, and the student’s practical training must
be overseen by both the employer and the school.

The Secretary of Homeland Security promulgated the
challenged OPT Rule pursuant to the Executive’s longstanding
authority under the INA to set the “time” and “conditions” of
nonimmigrants’ stay in the United States. 8 U.S.C.
§ 1184(a)(1). The Rule is an exercise of that authority over
 4
foreign students authorized to enter the country on
nonimmigrant F-1 student visas. 8 U.S.C. § 1101(a)(15)(F)(i).
The time-and-conditions authority and the foreign student visa
category were both already on the books when Congress
conducted its in-depth review and synthesis of immigration law
to enact the 1952 INA. Congress knew that the statutory
powers it chose to preserve in that Act had long been used by
the Executive to permit foreign students who had entered the
United States in order to attend school to stay after graduation
for a period of practical training as required or recommended
by their school. Lawmakers have closely scrutinized the
immigration laws many times since then. Congress has
repeatedly amended the pertinent provisions. But it has never
once questioned the statutory support for the Optional Practical
Training program.

Washington Alliance of Technology Workers (Washtech)
argues that the statutory definition of the F-1 visa class
precludes the Secretary from exercising the time-and-
conditions authority to allow F-1 students to remain for school-
recommended practical training after they complete their
coursework. But that argument wrongly assumes that, beyond
setting terms of entry, the visa definition itself precisely
demarcates the time and conditions of the students’ stay once
they have entered. Congress gave that control to the Executive.
The F-1 definition tethers the Executive’s exercise of that
control, but by its plain terms does not exhaustively delimit it.
We hold that the statutory authority to set the time and
conditions of F-1 nonimmigrants’ stay amply supports the
Rule’s OPT program.

The practical training opportunities the Rule permits
reasonably relate to the terms of the F-1 visa. The INA’s text
and structure make clear that Congress intended the Secretary’s
time-and-conditions authority to be exercised in a manner
 5
appropriate to the types of people and purposes described in
each individual visa class—a constraint that the Secretary’s
overarching administrative-law obligations confirm. To be
valid, the challenged post-graduation OPT Rule, including its
STEM extension, must reasonably relate to the distinct
composition and purpose of the F-1 nonimmigrant visa class.
We hold that they do. The Rule closely ties students’ practical
training to their course of study and their school. OPT is time-
limited, and the extension period justified in relation to the visa
class. The record shows that practical training not only
enhances the educational worth of a degree program, but often
is essential to students’ ability to correctly use what they have
learned when they return to their home countries. That is
especially so in STEM fields, where hands-on work is critical
for understanding fast-moving technological and scientific
developments.

Finally, Washtech sees another lack of statutory authority
for the Rule: In its view, the Executive cannot authorize any
employment at all, including for Optional Practical Training.
That argument fails, too. As Congress itself has recognized,
the Secretary’s statutory authority to set the “conditions” of
nonimmigrants’ stay in the United States includes the power to
authorize employment reasonably related to the nonimmigrant
visa class. Authorizing foreign students to engage in limited
periods of employment for practical training as their schools
recommend according to the terms set out in the Rule is a valid
exercise of that power.

As further explained below, we affirm the judgment of the
district court sustaining the OPT Rule’s authorization of a
limited period of post-coursework Optional Practical Training,
if recommended and overseen by the school and approved by
DHS, for qualifying students on F-1 visas.
 6
I. BACKGROUND

A.

The INA sets the terms on which consular officers at U.S.
embassies and consulates abroad may issue visas to both
prospective “immigrants” and “nonimmigrants.” 8 U.S.C.
§ 1201(a)(1). “Immigrant” visas are issued to foreign nationals
intending to move to the United States permanently.
“Nonimmigrant” visas are for foreign nationals seeking to
come into the country temporarily for an identified purpose.
The INA’s definitional section lists several dozen classes of
foreign nationals who may be eligible for nonimmigrant visas.
8 U.S.C. § 1101(a)(15). Those classes are often referred to by
their clause number within subparagraph (a)(15) of section
1101. For example, “A-1” visas grant entry to certain foreign
dignitaries, “B-1” to business travelers, “H-1B” to persons in
certain specialty occupations, “H-2A” to temporary
agricultural workers, “I” to journalists, and “P” to certain types
of visiting performers. See 8 U.S.C. §§ 1101(a)(15)(A)(i),
1101(a)(15)(B), 1101(a)(15)(H)(i)(b) & (ii)(a), 1101(a)(15)(I),
1101(a)(15)(P).

An F-1 foreign-student visa may be issued to:

an alien having a residence in a foreign country which
he has no intention of abandoning, who is a bona fide
student qualified to pursue a full course of
study and who seeks to enter the United
States temporarily and solely for the purpose of
pursuing such a course of study . . . at an
established college, university, seminary,
conservatory, academic high school, elementary
school, or other academic institution or in an
accredited language training program in the United
 7
States, particularly designated by him and approved by
the Attorney General after consultation with the
Secretary of Education, which institution or place of
study shall have agreed to report to the Attorney
General the termination of attendance of each
nonimmigrant student, and if any such institution of
learning or place of study fails to make reports
promptly the approval shall be withdrawn . . . .

Id. § 1101(a)(15)(F)(i). Like other visa classes defined in
section 1101(a)(15), F-1 identifies entry conditions but “is
silent as to any controls to which these aliens will be subject
after they arrive in this country.” Rogers v. Larson, 563 F.2d
617, 622-23 (3d Cir. 1977).

Those post-arrival controls are spelled out pursuant to
section 1184(a)(1), providing the Executive authority to set the
“time” and “conditions” of admission for nonimmigrant visa-
holders, including those who enter the country with F-1 visas.
Section 1184(a)(1) provides:

The admission to the United States of any alien as a
nonimmigrant shall be for such time and under such
conditions as the Attorney General may by regulations
prescribe . . . .

8 U.S.C. § 1184(a)(1); see Rogers, 563 F.2d at 622-23. The
balance of section 1184(a)(1) affords the Attorney General the
authority, as he “deems necessary,” to require of any
nonimmigrant

the giving of a bond with sufficient surety in such sum
and containing such conditions as the Attorney
General shall prescribe, to insure that at the expiration
of such time or upon failure to maintain the status
under which he was admitted, or to maintain any status
 8
subsequently acquired under section 1258 of this title
[allowing change in nonimmigrant status], such alien
will depart from the United States.

8 U.S.C. § 1184(a)(1). 1 The INA authorizes the Secretary to
“establish such regulations” as are “necessary for carrying out
his authority under” the statute and enforcing its terms. Id.
§ 1103(a)(1)-(3).

The INA thus defines categories of visa eligibility and
empowers the Secretary, guided by those visa categories, to
regulate how long and under what conditions nonimmigrants
may stay in the country.

B.

Pertinent aspects of the INA’s statutory framework date
back nearly a century, to the Immigration Act of 1924. In that
Act, Congress established a student visa category materially
the same as its modern F-1 counterpart, authorizing entry of
“[a]n immigrant who is a bona fide student . . . who seeks to
enter the United States solely for the purpose of study at an
accredited school . . . which shall have agreed to report to the
Secretary of Labor the termination of attendance of each
immigrant student.” Immigration Act of 1924, Pub. L. No. 68-
139, § 4(e), 43 Stat. 153, 155; accord 8 U.S.C.

1
A note on nomenclature: Section 1184(a)(1), which was enacted
when the Immigration and Naturalization Service was housed in the
Department of Justice, refers to the Attorney General. That authority
was transferred in 2002 to DHS so is currently exercised by the
Secretary of Homeland Security. At times we refer to either or both
DHS or its United States Customs and Immigration Service (USCIS)
and DOJ or its Immigration and Naturalization Service (INS) simply
as the Executive.
 9
§ 1101(a)(15)(F)(i). Then, as today, the Act specified that
“[t]he admission to the United States” of what were then called
“non-quota immigrants,” including visiting students, would
“be for such time as may be by regulations prescribed, and
under such conditions as may be by regulations prescribed.”
Immigration Act of 1924 § 15, 43 Stat. at 162-63; accord 8
U.S.C. § 1184(a)(1). The 1924 Act authorized the Attorney
General to require foreign students to post bonds to ensure
compliance with any prescribed time and conditions. § 15, 43
Stat. at 163.

Congress has repeatedly reinforced that approach, with F-
1 directly setting entry conditions and the Executive regulating
the terms of stay pursuant to its statutory time-and-conditions
authority. Congress made no changes across the intervening
decades to disapprove post-graduation practical training, even
as it overhauled other aspects of our immigration laws: The
Immigration and Nationality Act of 1952 created the modern
nonimmigrant categories—including the F-1 class—and
restated both the basic eligibility criteria for student visas and
the grant to the Executive of time-and-conditions authority
over the terms of nonimmigrants’ stay. See Immigration and
Nationality Act, Pub. L. No. 82-414, §§ 101(15)(F), 214(a), 66
Stat. 163, 168, 189 (1952).

Since it overhauled immigration law in 1952, Congress has
made some tweaks to the student visa and practical training
regimes. It has, for example, authorized the noncitizen spouses
and children of F-1 students to accompany them, Pub. L. No.
87-256, § 109(a), 75 Stat. 527, 534 (1961), required specific
employment authorization and verification by employers for
most noncitizens as a condition of their employment in the
United States, Pub. L. No. 99-603, § 101, 100 Stat. 3359, 3360-
74 (1986), and, after the September 11, 2001 attacks,
strengthened the program for monitoring permissions and
 10
approvals of foreign students’ study in the United States, Pub.
L. No. 107-173, §§ 501-502, 116 Stat. 543, 560-63 (2002). But
Congress has left unchanged the key terms and basic
framework that statutorily define visa categories and empower
the Executive to specify by regulation the terms of
nonimmigrants’ presence in the United States.

The Executive has consistently exercised those enduring
statutory powers to maintain and control the OPT program.
From at least the 1940s onward, the Executive has used its
statutory time-and-conditions authority to permit post-
coursework employment as a form of practical training for
student visa-holders. With key terms strikingly similar to the
wording in the current OPT Rule, the 1947 rule governing
students who were “admitted temporarily to the United States
. . . for the purpose of pursuing a definite course of study”
provided that:

In cases where employment for practical training is
required or recommended by the school, the [INS]
district director may permit the student to engage in
such employment for a six-month period subject to
extension for not over two additional six-month
periods, but any such extensions shall be granted only
upon certification by the school and the training
agency that the practical training cannot be
accomplished in a shorter period of time.

12 Fed. Reg. 5,355, 5,355, 5,357 (Aug. 7, 1947). The 1947
regulation authorized practical training to occur “after
completion of the student’s regular course of study.” S. Rep.
No. 81-1515, at 503 (1950).

The Executive has explicitly reaffirmed that understanding
in regulations spanning a dozen presidential administrations: It
has long used its statutory authority over the “time” of
 11
nonimmigrant admission to set the length of F-1 visa-holders’
permitted presence in the United States and the “conditions”
they must meet while here. 2 Rather than admitting F-1 students
for a particular interval of time, DHS admits them for the
“duration of [their] status.” 8 C.F.R. § 214.2(f)(5)(i); see id.
§ 214.2(f)(7)(i). Per DHS regulations, the duration of that
status includes the time during which they are full-time
students in approved courses of study. Id. § 214.2(f)(5)(i).
And it includes standardized periods when they may be here
under other, related conditions—for example, for up to a month
before and two months after starting coursework, id.
§ 214.2(f)(5)(i), (iv), up to five months during approved gaps
between educational levels, id. § 214.2(f)(5)(ii), (f)(8)(i), on
vacation between terms, id. § 214.2(f)(5)(iii), and—the subject
of this case—while they engage in capped periods of practical
training after completion of coursework, id. § 214.2(f)(5)(i),
(f)(10)(ii)(A)(3).

2
See, e.g., 34 Fed. Reg. 18,085, 18,085 (Nov. 8, 1969) (extending
the availability of practical training from 6 to 18 months); 38 Fed.
Reg. 35,425, 35,426 (Dec. 28, 1973) (reauthorizing the preexisting
practical training regime); 42 Fed. Reg. 26,411, 26,413 (May 24,
1977) (permitting students in certain fields to engage in practical
training “[a]fter completion of a course or courses of study”); 48 Fed.
Reg. 14,575, 14,581, 14,586 (Apr. 5, 1983) (allowing practical
training “after the completion of a course of study” regardless of
degree program); 57 Fed. Reg. 31,954, 31,956 (July 20, 1992) (using
the term “Optional [P]ractical [T]raining” for the first time to
describe the temporary employment available to F-1 students); 81
Fed. Reg. 13,040, 13,041 (Mar. 11, 2016) (extending the OPT period
for up to twenty-four months for F-1 students in STEM fields). We
discuss these regulations in further detail infra at 31-32.
 12
C.

Washtech challenges the Secretary’s statutory authority to
permit F-1 visa-holders who have completed their coursework
to undertake a capped period of employment as a form of
practical training—as recommended or required by their
schools and approved by the Secretary. See 8 C.F.R.
§ 214.2(f)(5)(i). As already noted, OPT continues the
Executive’s longstanding policy of authorizing visiting
students to work here in their field, under the auspices of their
school, for a limited period to cement their classroom learning
and ensure they can use that knowledge effectively at work
when they return to their home countries. See 57 Fed. Reg.
31,954, 31,954-57 (July 20, 1992) (detailing the terms of OPT).

The regulations governing practical training allow
approved students to remain in the United States for up to one
year following completion of their course of study if they are
“engag[ed] in authorized practical training.” 8 C.F.R.
§ 214.2(f)(5)(i), (f)(10), (f)(11). In 2008, the Department
promulgated a rule allowing F-1 visa-holders with STEM
degrees to apply for an OPT extension of up to seventeen
months. See 73 Fed. Reg. 18,944 (Apr. 8, 2008). The district
court vacated that rule as unlawfully issued without notice and
comment but stayed the vacatur to allow DHS to correct that
error. Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland
Sec. (Washtech I), 156 F. Supp. 3d 123 (D.D.C. 2015). In
2016, the Secretary did so, promulgating after notice and
comment a renewed STEM practical training extension
program. See 81 Fed. Reg. 13,040 (Mar. 11, 2016). We then
vacated the district court’s 2015 decision as moot. See Wash.
All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
(Washtech II), 650 F. App’x 13 (D.C. Cir. 2016). The 2016
Rule carries forward the existing allowance of up to a year of
practical training related to the student’s field of study and adds
 13
an extension for STEM students of up to twenty-four months.
See 81 Fed. Reg. at 13,041; 8 C.F.R. § 214.2(f)(10)(ii)(C).

The current OPT Rule defines the post-coursework
practical training at issue here as follows:

(A) General. Consistent with the application and
approval process in paragraph (f)(11) of this section, a
student may apply to [United States Customs and
Immigration Service] for authorization for temporary
employment for optional practical training directly
related to the student’s major area of study. The student
may not begin optional practical training until the date
indicated on his or her employment authorization
document, Form I-766. A student may be granted
authorization to engage in temporary employment for
optional practical training:

***

(3) After completion of the course of study, or, for a
student in a bachelor’s, master’s, or doctoral degree
program, after completion of all course requirements
for the degree (excluding thesis or equivalent).
Continued enrollment, for the school’s administrative
purposes, after all requirements for the degree have
been met does not preclude eligibility for optional
practical training. A student must complete all
practical training within a 14-month period following
the completion of study, except that a 24-month
extension pursuant to paragraph (f)(10)(ii)(C) of this
section [for STEM students] does not need to be
completed within such 14-month period.

8 C.F.R. § 214.2(f)(10)(ii). The Rule limits post-coursework
OPT to “an F-1 student who has been lawfully enrolled on a
 14
full time basis, in a [United States Customs and Immigration]
Service-approved college, university, conservatory, or
seminary for one full academic year,” allowing such a student
to seek “employment authorization for practical training in a
position that is directly related to his or her major area of
study.” Id. § 214.2(f)(10).

The preamble to the final rule explains that the “core
purpose” of the challenged STEM OPT extension is to “allow
participating students to supplement their academic knowledge
with valuable practical STEM experience.” 81 Fed. Reg. at
13,041. More specifically, the 24-month STEM extension will,
according to DHS, “enhance [participating] students’ ability to
achieve the objectives of their courses of study by allowing
them to gain valuable knowledge and skills through on-the-job
training that may be unavailable in their home countries.” Id.
at 13,042-43. The rule also “improves and increases oversight
over STEM OPT extensions” in order to further “guard[]
against adverse impacts on U.S. workers.” Id. at 13,040,
13,049.

To realize those purposes, the OPT Rule requires specific
actions by students, schools, employers, and the government to
design, approve, and monitor the practical training component
for each participating student. First, a school administrator
responsible for overseeing the education of F-1 students—the
Designated School Official—must recommend the student to
DHS as someone whose education will be enhanced by on-the-
job practical training, and DHS must favorably adjudicate the
application. 8 C.F.R. § 214.2(f)(10)(ii)(C)(3), (f)(11)(i)-(iii);
id. § 214.3(l)(1). Second, the student and the school official
must settle on a proposal for practical work “directly related to
the degree that qualifies the student for” the extension—in this
case, certain STEM degrees. Id. § 214.2(f)(10)(ii)(C)(4).
Third, the student and the prospective employer must then
 15
agree on a “training plan” that identifies the specific ways in
which the practical training will enhance the participant’s
education. Id. § 214.2(f)(10)(ii)(C)(7). They must submit their
agreed plan to the school’s designated official for review and
approval. Id. Finally, the prospective employer must attest,
among other things, that the employment will help the student
attain his or her training objectives, and that the student will
not replace a full- or part-time temporary or permanent U.S.
worker. Id. § 214.2(f)(10)(ii)(C)(10).

Once the student-trainees begin working, the school
official continues to superintend the practical training; the
students and their employers must periodically report back to
the school with evaluations of the student’s progress toward the
training goals. Id. § 214.2(f)(10)(ii)(C)(9)(i). The Designated
School Official must, in turn, submit the training plans and
follow-up reports to DHS. Id. § 214.2(f)(10)(ii)(C)(9)(iii).
DHS may, at its discretion, conduct site visits to ensure that
employers are meeting program requirements. Id.
§ 214.2(f)(10)(ii)(C)(11). Recordkeeping obligations of the
schools that are approved by DHS to enroll F-1 students
include maintenance of records on each student reflecting
“[w]hether the student has been certified for practical training,
and the beginning and end dates of certification.” Id.
§ 214.3(g)(1)(vii).

D.

Washtech challenged the 2016 OPT extension and
underlying practical training regime as unlawful on several
grounds. The district court dismissed the case. Wash. All. Of
Tech. Workers v. U.S. Dep’t of Homeland Sec. (Washtech III),
249 F. Supp. 3d 524 (D.D.C. 2017). It held that Washtech had
standing to challenge the 2016 Rule’s extension of the
maximum OPT period for STEM graduates, though not the
 16
preexisting regime generally authorizing a year of post-
graduation OPT. Id. at 535-54, 556. On the merits, the district
court credited the government’s argument that Washtech’s
“single, conclusory sentence” in its complaint asserting “that
the 2016 OPT Program Rule exceeds DHS’s authority” was
“facially implausible given the absence of any alleged facts
supporting this conclusory legal claim.” Id. at 555. Because
in opposing the motion to dismiss “Washtech failed to address”
the government’s arguments in support of its statutory
authority, the district court treated the government’s
characterization as “conceded.” Id. As for the APA challenge,
the district court observed that “Washtech contends that the
2016 OPT Program Rule was implemented arbitrarily and
capriciously because it ‘requires employers to provide foreign-
guest workers OPT mentoring without requiring that such
program be provided to American workers.’” Id. (quoting the
complaint). The district court rejected that argument as
similarly “threadbare” insofar as it simply ignored “the
extensive explanations provided in the 2016 OPT Program
Rule, including the explanations provided in the notice of
proposed rulemaking on which Washtech publicly
commented . . . .” Id. at 556.

We reversed the dismissal of the statutory-authority
challenge to the 2016 Rule, reasoning that by its nature “[a]
claim that a regulation exceeds statutory authority” does not
“require[] factual allegations about the defendant’s actions”
and that Washtech’s complaint “plainly identifies the perceived
disconnect between what the statute permits . . . and what the
regulations do.” Wash. All. of Tech. Workers v. U.S. Dep’t of
Homeland Sec. (Washtech IV), 892 F.3d 332, 343-44 (D.C. Cir.
2018). Washtech could therefore “rest on its complaint” which
“itself adequately states a plausible claim for relief,” without
thereby conceding that its claim was insufficiently pled. Id. at
345. We directed the district court on remand to consider
 17
whether the 2016 Rule placed in issue not just the 2016 STEM
extensions but, under the reopening doctrine, the Secretary’s
statutory authority to implement “the entire OPT program.” Id.
at 345-46.

Although Washtech had not timely challenged the
underlying rule itself, the district court on remand held that the
2016 Rule restarted the clock to challenge the statutory
authority for the OPT program as a whole along with the new,
STEM-specific extension. Wash. All. of Tech. Workers v. U.S.
Dep’t of Homeland Sec. (Washtech V), 395 F. Supp. 3d 1, 10-
15 (D.D.C. 2019). The district court also permitted the
National Association of Manufacturers, Chamber of
Commerce, and Information Technology Industry Council to
intervene in support of DHS to defend the OPT Rule. Id. at 15-
21.

Before us is the appeal of the district court’s order granting
summary judgment to DHS and the Intervenors. Wash. All. of
Tech. Workers v. U.S. Dep’t of Homeland Sec. (Washtech VI),
518 F. Supp. 3d 448 (D.D.C. 2021). The district court held that
Washtech had standing to challenge OPT, id. at 458-62, and
that the program was within the Secretary’s statutory authority,
id. at 463-75. The court reasoned that the INA’s text, together
with decades of apparent congressional approval, sufficed to
support the Department’s interpretation that it had authority to
allow post-graduation OPT. Id. The court also denied
Washtech’s motion to strike an amicus brief. Id. at 453 n.2.

II. ANALYSIS

A. Standard of Review

We review de novo the district court’s grant of summary
judgment, Save Jobs USA v. U.S. Dep’t of Homeland Sec., 942
F.3d 504, 508 (D.C. Cir. 2019), including its determinations
 18
about the plaintiff’s standing, Equal Rights Ctr. v. Post Props.,
Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011), and other legal
conclusions, Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 623
(D.C. Cir. 2020). A movant is entitled to summary judgment
“if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). For the reasons that follow, we
affirm the judgment of the district court.

B. Standing

On the earlier appeal from dismissal of Washtech’s case
for failure to state a claim, we relied on allegations in the
complaint to hold that the organization had standing. Washtech
IV, 892 F.3d at 339-42. Because Washtech at the summary
judgment stage supplied evidence supporting the allegations
we already held sufficient, we recognize its standing at this
stage, too. Washtech members submitted declarations in
opposition to summary judgment confirming that they
currently hold STEM jobs and that they have actively sought
and been denied other STEM positions, including with
employers that regularly hire OPT participants. Under the legal
standard established by binding circuit precedent, we hold that
a reasonable jury could find on this record that Washtech
suffered competitive injury in fact cognizable under Article III.

Because Washtech claims associational standing on behalf
of its members, it must show that “(1) at least one of its
members has standing to sue in her or his own right, (2) the
interests it seeks to protect are germane to its purpose, and
(3) neither the claim asserted nor the relief requested requires
the participation of an individual member in the lawsuit.” Save
Jobs USA, 942 F.3d at 508 (internal quotation marks omitted)
(formatting modified). Here, DHS contests only whether the
 19
identified Washtech members have standing in their own right.
We, too, focus our attention there.

To establish Article III standing, a plaintiff “must have (1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016). “[E]ach element must be
supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the
litigation.” Humane Soc’y of the U.S. v. Perdue, 935 F.3d 598,
602 (D.C. Cir. 2019) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992)). So, at the summary judgment stage,
“the plaintiff ‘must set forth by affidavit or other evidence
specific facts’ that prove standing.” Id. (quoting Defs. of
Wildlife, 504 U.S. at 561).

Here, Washtech asserts that its members have suffered
injury based on the competitor standing doctrine. The “basic
requirement” of competitor standing “is that the complainant
must show an actual or imminent increase in competition” in
the market in which he or she is a “direct and current
competitor[].” Washtech IV, 892 F.3d at 339-40; see Save Jobs
USA, 942 F.3d at 509-10; Mendoza v. Perez, 754 F.3d 1002,
1011-14 (D.C. Cir. 2014). The Supreme Court has long
recognized that businesses may be “aggrieved” by increased
competition in their sector. See, e.g., Ass’n of Data Processing
Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157 (1970). And we
have held that workers may likewise suffer injury from an
action that increases competition for jobs in their labor market.
See Mendoza, 754 F.3d at 1011; Int’l Union of Bricklayers &
Allied Craftsmen v. Meese, 761 F.2d 798, 802-03 (D.C. Cir.
1985) (recognizing construction craftworkers’ union standing
based on allegations that, “under the guise of B-1 status, the
 20
INS is allowing aliens into the country to perform work which
would otherwise likely go to union members”).

Even at the pleading stage, we recognized that “allegations
of increased competition in the STEM labor market are
supported by ‘facts found outside of the complaint,’” including
that 34,000 individuals participated in the STEM OPT
extensions in 2016. See Washtech IV, 892 F.3d at 340. The
district court on remand accepted as “undisputed” for summary
judgment purposes “that the OPT program increases the
amount of foreign labor in the STEM labor market.” Washtech
VI, 518 F. Supp. 3d at 461.

The dispute centers on whether Washtech’s members are
direct and current competitors in that labor market. We hold
that they are. At the motion-to-dismiss stage, we deemed
adequately alleged that Washtech members “compete with F-1
student visa-holders who are working in the OPT program
pursuant to the DHS’s regulations” and therefore that they
“‘participat[e] in the [STEM] labor market’ in competition with
OPT workers.” Washtech IV, 892 F.3d at 339-40 (quoting
Mendoza, 754 F.3d at 1013).

Washtech has now presented specific facts to support
those allegations. All three member declarations show that the
members have applied for many jobs within the STEM field
and continue to work in that field now. J.A. 201-22. And the
attachments to Mr. Sawade’s declaration include copies of job
postings stating that at least some of the STEM positions to
which he applied were also advertised as open to OPT
applicants. Id. 223-25. Thus, Washtech’s members have
sufficiently supported their allegations that they are direct and
current competitors with OPT participants and have therefore
suffered cognizable injury under the competitor standing
doctrine.
 21
The Department’s objections to Washtech’s standing fail
here for the same reasons that they did at the motion-to-dismiss
stage. The main thrust of DHS’s argument is that the Washtech
members have not provided evidence that they were, at the time
Washtech initiated the suit, “currently competing with F-1
students receiving OPT” or “currently searching for” STEM
jobs. Appellee Br. at 20, 25 (emphases in original). But
because the “supply side of a labor market is made up of those
individuals who are employed and those actively looking for
work,” Save Jobs USA, 942 F.3d at 511 (emphasis in original),
Washtech’s members can qualify as direct and current
competitors even if they were not actively seeking new jobs at
the time the suit commenced. To require evidence that
Washtech’s members were actively seeking a STEM job would
“overread[] our ‘direct and current competitor’ formulation,
which simply distinguishes an existing market participant from
a potential—and unduly speculative—participant.” Id. at 510;
see also Mendoza, 754 F.3d at 1013-14. It is enough that
nonimmigrant foreign workers “have competed with
[Washtech’s] members in the past, and, as far as we know,
nothing prevents them from doing so in the future.” Save Jobs
USA, 942 F.3d at 511. Washtech has shown injury to its
members that is cognizable under the competitor standing
doctrine.

Those injuries are also traceable to the practical training
rule and redressable by the relief Washtech seeks. As
discussed above, there is little dispute that the 2016 OPT Rule
has increased the labor supply in the STEM field. As we did at
the motion to dismiss stage, we reject the Department’s
contention that Washtech’s injury is not traceable to the Rule
because employment involves the independent hiring or firing
actions of third parties, see Appellee Br. at 19-20; we have
already identified the cognizable injury as “exposure to
increased competition in the STEM labor market—not lost
 22
jobs, per se,” Washtech IV, 892 F.3d at 341. And the relief
Washtech seeks, a holding that the INA bars post-graduation
practical training for F-1 visa-holders, would accordingly
reduce competition in that market, likely redressing the harms
that Washtech asserts. See id. at 341-42. As a result, we hold
that Washtech has standing to sustain its challenge to the 2016
Rule’s STEM extension.

C. Statutory Authority for Optional Practical Training

The 2016 Rule is within DHS’s statutory authority.
Section 1184(a)(1)’s time-and-conditions provision is the
source of that authority, and the F-1 visa class definition guides
its use. Because the 2016 Rule regulates the “time” and
“conditions” of admission for F-1 visa-holders, and because it
is reasonably related to the distinct composition and purpose of
that visa class, as defined in the F-1 provision, the Secretary
had authority to promulgate it.

1.

We begin with the source of the Secretary’s authority.
Congress granted the Executive power to set the duration and
terms of statutorily identified nonimmigrants’ presence in the
United States. The INA provides that nonimmigrants’
“admission to the United States . . . shall be for such time and
under such conditions” as the Executive prescribes “by
regulations.” 8 U.S.C. § 1184(a)(1). The plain text of section
1184(a)(1) validates continued admission for periods of
practical training specified in the Rule: The allowance of up to
a year of practical training as recommended by the school and
approved by DHS, with up to an additional 24 months for
STEM graduates, is “time” that the Department has “by
regulations” set for the duration of F-1 students’ continued
“admission to the United States” on the condition that they
engage in qualifying practical training as the Rule defines it.
 23
See, e.g., CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 619 (6th
Cir. 2002) (recognizing section 1184(a)(1)’s grant of authority
over duration and terms of extension of nonimmigrants’ stay).
Section 1184(a)(1) thus empowers the Department to permit
temporary, post-graduation practical training for F-1 visa-
holders.

Section 1184(a)(1)’s interplay with the INA’s definitions
of admissible nonimmigrants reinforces that section 1184(a)(1)
supports the OPT Rule. It provides time-and-conditions
authority specifically for the “admission to the United States of
any alien as a nonimmigrant.” 8 U.S.C. § 1184(a)(1)
(emphasis added). Notably, however, the INA does not define
“nonimmigrant” as a general category, but only as a set of
discrete classes. Id. § 1101(a)(15)(A)-(V). Those dozens of
class definitions are each very brief, specifying little more than
a type of person to be admitted and the purpose for which they
seek to enter. No definition states exactly how long the person
may stay, nor spells out precisely what the nonimmigrant may
or may not do while here for the specified purpose. 3 Those are
parameters that Congress expected the Executive to establish
“by regulations,” which is exactly what section 1184(a)(1)
grants DHS the authority to do. In short: The INA uses visa
classes to identify who may enter temporarily and why, but
leaves to DHS the authority to specify, consistent with the visa
class definitions, the time and conditions of that admission.

Here, the F-1 class definition serves as the Secretary’s
guide. It provides that the F-1 visa applicant must be a “bona

3
Unlike F-1, two of the twenty-two nonimmigrant visa class
definitions state the maximum allowable time of admission for that
class. See 8 U.S.C. § 1101(a)(15)(Q) (“for a period not to exceed 15
months”); id. § 1101(a)(15)(R) (“for a period not to exceed 5 years”).
Even those provisions do not dictate the time of admission that DHS
could set within those limits.
 24
fide student” who is “qualified to pursue a full course of study”;
her purpose must be “to enter the United States temporarily”
and to do so “solely for the purpose of pursuing such a course
of study” at a DHS-approved U.S. academic institution.
8 U.S.C. § 1101(a)(15)(F)(i). This definition governs the
decisions of consular and immigration officers who are
responsible for granting visas and who must ensure that the
qualified F-1 student’s purpose in coming to the United States
is genuinely for study. But the F-1 provision says nothing
about when that visit should begin or end. Id. In fact, the
provision cannot rationally be read as setting forth terms of
stay. For example, F-1 requires that the prospective
nonimmigrant must “seek[] to enter the United States.” Id.
Once admitted, an F-1 visa-holder cannot continuously “seek[]
to enter the United States” throughout his or her stay. Id. The
F-1 provision therefore sets the criteria for entry and guides
DHS in exercising its authority to set the time and conditions
of F-1 students’ stay; it does not, itself, delineate the full terms
of that stay.

Preexisting regulations applicable to F-1 visa-holders (and
not at issue here) illustrate how this structure plays out. To
allow F-1 students time for moving in and out of the country,
Department regulations admit them into the United States for
up to 30 days before their course of study begins, 8 C.F.R.
§ 214.2(f)(5)(i), and permit them to remain in the country for
up to 60 days after it ends, id. § 214.2(f)(5)(iv). The rules also
allow F-1 students to stay during periods of academic vacation
between terms, id. § 214.2(f)(5)(iii), and even during gaps
between entirely distinct educational programs, id.
§ 214.2(f)(5)(ii).

Washtech accepts that the Executive’s time-and-
conditions authority empowers it to authorize students’
presence in the United States beyond the time they are actually
 25
enrolled in and attending classes. Oral Arg. Tr. at 15-16. But
it claims the 2016 Rule goes too far. We disagree. Where
Congress has delegated general authority to carry out an
enabling statute, an agency’s exercise of that authority
ordinarily must be “‘reasonably related’ to the purposes of the
legislation.” Doe, 1 v. Fed. Election Comm’n, 920 F.3d 866,
871 (D.C. Cir. 2019) (quoting Mourning v. Family Publ’ns
Serv., Inc., 411 U.S. 356, 369 (1973)); see also, e.g., Keating
v. FERC, 569 F.3d 427, 433 (D.C. Cir. 2009) (agency action
“was not arbitrary or capricious” because agency “articulated
rational reasons related to its statutory responsibility”). As
noted, the INA grants general regulatory authority to DHS to,
among other things, set the time and conditions for the lawful
continued admission of each nonimmigrant class. 8 U.S.C.
§§ 1103(a)(1)-(3), 1184(a)(1). Thus, in Narenji v. Civiletti,
“[r]ecognizing the broad authority conferred upon” DHS by
sections 1184(a) and 1103(a), we held that the INA “need not
specifically authorize each and every action taken by [DHS],
so long as [its] action is reasonably related to the duties
imposed upon [it].” 617 F.2d 745, 747 (D.C. Cir. 1979). We
recognize that same constraint here. Pursuant to the
Secretary’s obligation to exercise its rulemaking power in
keeping with the statute’s text and structure, DHS must ensure
that the times and conditions it attaches to the admission of F-1
students are reasonably related to the purpose for which they
were permitted to enter.

The 2016 Rule is reasonably related to the nature and
purpose of the F-1 visa class: pursuing a full course of study at
an established academic institution. The 2016 Rule explains in
detail DHS’s educational rationale for authorizing practical
training for F-1 students. Many students, especially those in
the fields of science, technology, engineering, and
mathematics, can succeed at classroom training but need
practical training in a workplace setting to operationalize their
 26
new knowledge. In computer science, for example, practical
opportunities to work with colleagues and managers supplied
with the requisite hardware and software and adept with skills
to deploy what a recent graduate learned only in the classroom
may be critical to the graduate’s ability to transfer the value of
the classroom education to a workplace in their home country.

DHS notes, for example, that the Optional Practical
Training program “enriches and augments a student’s
educational experience by providing the ability for students to
apply in professional settings the theoretical principles they
learned in academic settings.” 81 Fed. Reg. 13,040, 13,051
(Mar. 11, 2016); see also id. at 13,041-43, 13,049, 13,051.
Hundreds of students and academic institutions confirmed that
view during the rulemaking, observing, for example, that “OPT
allows students to take what they have learned in the classroom
and apply ‘real world’ experience to enhance learning and
creativity while helping fuel the innovation that occurs both on
and off campus,” that “[l]earning through experience is distinct
from learning that takes place in the classroom,” and that
“[e]xperential learning opportunities have become an integral
part of U.S. higher education.” Id. at 13,050. The Department
agreed, explaining that “practical training is an accepted and
important part” of F-1 students’ education. Id.

With respect to the STEM extension specifically, DHS
further explained that the duration of the extension “is based on
the complexity and typical duration of research, development,
testing, and other projects commonly undertaken in STEM
fields.” Id. at 13,088. Notably, the Department rejected the
suggestion that it allow practical training unrelated to the F-1
student’s field of study, instead imposing a requirement of a
“nexus” with the academic concentration in order to
“minimize[] potential abuse or exploitation.” Id. at 13,051.
The Department also observed that work authorization without
 27
such a nexus would be inconsistent with the purposes of
Optional Practical Training, which is, “at its core, . . . a
continuation of the student’s program of study.” Id. Washtech
does not challenge any of those observations or conclusions.

The 2016 OPT Rule’s design closely ties it to the purposes
of the F-1 visa class. Before an F-1 student can even apply for
OPT, an administrator at the student’s academic institution
must recommend the student for it. 8 C.F.R.
§ 214.2(f)(10)(ii)(C)(3), (f)(11)(i); id. § 214.3(l)(1). Once
recommended, an OPT applicant can only seek practical
training via employment that is “directly related to the
student’s major area of study.” Id. § 214.2(f)(10)(ii)(A); see
id. § 214.2(f)(10)(ii)(C)(4) (STEM OPT extensions must be
“directly related to the degree that qualifies the student for [the]
extension”). STEM OPT students and their potential
employers must submit to the institutional recommender a
“training plan” that “identif[ies] goals for the STEM practical
training opportunity, including specific knowledge, skills, or
techniques that will be imparted to the student, and explain[s]
how those goals will be achieved through the work-based
learning opportunity with the employer; describe[s] a
performance evaluation process; and describe[s] methods of
oversight and supervision.” Id. § 214.2(f)(10)(ii)(C)(7). The
recommender must then submit that training plan to DHS. Id.
§ 214.2(f)(10)(ii)(C)(9)(iii). Then, while the practical training
is ongoing, participants and their employers must report back
to the institutional recommender—who in turn reports to
DHS—on participants’ educational progress. Id.
§ 214.2(f)(10)(ii)(C)(9)(i)-(iii). At every stage of the program,
OPT and its STEM extension are confined to professional
opportunities that enhance the value and practical effectiveness
of the classroom study for which all F-1 nonimmigrants come
in the first place.
 28
The INA constrains the Department to set only such times
and conditions for F-1 students’ admission as are reasonably
related to their visa class. OPT falls within those limits. The
program is thus a valid exercise of DHS’s statutory authority.

2.

Before turning to the other bases Washtech urges for
invalidating the OPT Rule, we review the powerful historical
evidence that Congress meant to do what section 1184(a)(1)’s
text says: to grant the Executive power to allow nonimmigrants
who come to the United States for higher education to engage
in limited periods of practical training as an educational
complement to their classroom studies.

Congressional ratification of post-graduation practical
training periods dates back over 70 years. Congress enacted
the Immigration and Nationality Act in 1952 using terms and
phrases it knew were present in the predecessor legislation, and
that it also knew had been relied on by the Executive at least as
early as 1947 to permit foreign students to engage in practical
training following their regular course of study. Just as
enactment of “a statute that had in fact been given a consistent
judicial interpretation . . . generally includes the settled judicial
interpretation,” Pierce v. Underwood, 487 U.S. 552, 567
(1988), “repetition of the same language in a new statute
indicates, as a general matter, the intent to incorporate its
administrative . . . interpretations as well,” Bragdon v. Abbott,
524 U.S. 624, 645 (1998). “If a statute uses words or phrases
that have already received authoritative construction by . . . a
responsible administrative agency, they are to be understood
according to that construction.” Antonin Scalia & Bryan A.
Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS
322 (2012).
 29
It is unusually clear that Congress was aware of the prior
practice of authorizing foreign students’ practical training.
When “Congress adopts a new law incorporating sections of a
prior law, Congress normally can be presumed to have had
knowledge of the interpretation given to the incorporated law,
at least insofar as it affects the new statute.” Lorillard v. Pons,
434 U.S. 575, 581 (1978). That presumption is “particularly
appropriate” when “Congress exhibited both a detailed
knowledge of the [relevant] provisions” and interpretations of
those provisions when it adopted the new law. Id. But there is
no need for presumptions here, given that Congress readied
itself to enact the INA in 1952 by directing the Senate Judiciary
Committee to conduct “a full and complete investigation of our
entire immigration system,” S. Rep. No. 81-1515, at 1 (1950).
The resulting study disclosed the same kind of program as an
exercise of the same statutory power at issue here. The Senate
Judiciary Committee’s “two-year study” was the “genesis” of
the Immigration and Nationality Act, overhauling the 1924
statutory regime and providing the foundation for U.S.
immigration law that persists today. 1 CHARLES GORDON ET
AL., IMMIGRATION LAW & PROCEDURE § 2.03[1] (2019).

Five years before Congress enacted the 1952 INA, the
Immigration and Naturalization Service had promulgated a
regulation governing visiting students which provided that
“[i]n cases where employment for practical training is required
or recommended by the school, the district director may permit
the student to engage in such employment for a six-month
period subject to extension for not over two additional six-
month periods.” 12 Fed. Reg. 5,355, 5,357 (Aug. 7, 1947). The
1950 Senate Report specifically recognized that, “since the
issuance of the revised regulations in August 1947 . . . practical
training has been authorized for 6 months after completion of
the student’s regular course of study.” S. Rep. No. 81-1515, at
503 (1950) (emphasis added).
 30
With full knowledge that the Executive was permitting
post-graduation practical training for visiting students under
the time-and-conditions authority conferred on it by the 1924
statute, and “[a]gainst [that] background understanding in
the . . . regulatory system,” Congress in 1952 “made a
considered judgment to retain the relevant statutory text.”
Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive Communities
Project, Inc., 576 U.S. 519, 536 (2015). The 1952 INA, like
the 1924 Immigration Act, authorized the Executive to admit
nonimmigrants “for such time” and “under such conditions” as
it set by regulation. Compare Immigration Act of 1924, Pub.
L. No. 68-139, § 15, 43 Stat. 153, 162-63, with Immigration
and Nationality Act, Pub. L. No. 82-414, § 214(a), 66 Stat. 163,
189 (1952). And the F-1 student visa defined by the 1952 INA,
like the analogous permission under the 1924 Act, rendered
eligible “a bona fide student” seeking to enter “solely for the
purpose of . . . study at an” academic institution. Compare
Pub. L. No. 68-139, § 4(e), 43 Stat. 153, 155, with Pub. L. No.
82-414, § 101(15)(F), 66 Stat. 163, 168. See Review of
Immigration Problems: Hearings Before the Subcomm. on
Immigr., Citizenship, and Int’l Law of the H. Comm. on the
Judiciary, 94th Cong. 24 (1975) (“Chapman Testimony”)
(statement of Hon. Leonard F. Chapman, Jr., Comm’r, INS)
(noting that F-1 “is a provision that has really been in effect
under earlier law for about 50 years, starting in 1924”). This is
“convincing support for the conclusion that Congress accepted
and ratified” the INS’s interpretation and implementation of
that reenacted text. Texas Dep’t of Hous. & Cmty. Affs., 576
U.S. at 536.

In sum, evidence reaching back several generations shows
“that Congress intended to ratify” the Executive’s
interpretation “when it reiterated the same definition[s] in” the
INA that it had used in the 1924 Act. Bragdon, 524 U.S. at
645.
 31
3.

More than seventy years of history and practice since it
enacted the 1952 INA shows that Congress has not changed its
mind. If Congress has continually declined to disturb a
longstanding interpretation of a statute, that “may provide
some indication that Congress at least acquiesces in, and
apparently affirms, that interpretation”—particularly “if
evidence exists of the Congress’s awareness of and familiarity
with such an interpretation.” Jackson v. Modly, 949 F.3d 763,
772-73 (D.C. Cir. 2020) (formatting modified) (citing
Cannon v. Univ. of Chi., 441 U.S. 677, 703 (1979)); see Bob
Jones Univ. v. United States, 461 U.S. 574, 599-602 (1983); cf.
Abourezk v. Reagan, 785 F.2d 1043, 1055-56 (D.C. Cir.
1986), aff’d, 484 U.S. 1 (1987). And indeed, Congress is well
aware that, time and again, immigration authorities under
multiple administrations of both major parties reaffirmed a
practical training component available to F-1 students under
executive branch rules pursuant to the Executive’s time-and-
conditions powers.

In this case, evidence of congressional acquiescence
abounds. The INS under the Nixon administration, for
instance, reauthorized the practical training regime for training
recommended by the student’s school following completion of
coursework, and increased the training period from 6 to 18
months. See 34 Fed. Reg. 18,085, 18,085 (Nov. 8, 1969); 38
Fed. Reg. 32,425, 34,426 (Dec. 28, 1973). During the Carter
administration, the INS continued practical training programs,
again explicitly describing their availability “[a]fter
completion of a course or courses of study.” 42 Fed. Reg.
26,411, 26,413 (May 24, 1977). The Reagan administration
did the same, clarifying that post-graduation practical training
was not limited to particular degree programs. 48 Fed. Reg.
14,575, 14,581, 14,586 (Apr. 5, 1983). When it reorganized
 32
the practical training system for F-1 students, the
administration of George H.W. Bush coined the term “Optional
practical training” in describing temporary, on-the-job
educational opportunities. 57 Fed. Reg. 31,954, 31,956 (July
20, 1992). And, in the 2016 Rule Washtech challenges here,
DHS in the Obama administration extended the maximum
post-coursework practical training period for F-1 students in
STEM fields. 81 Fed. Reg. 13,040 (Mar. 11, 2016).

That longstanding practice was no secret to Congress.
Witnesses at congressional hearings across the decades spoke
directly of F-1 students staying in the country for temporary
periods of practical training. In 1975, for example, the INS
Commissioner told Congress that, while “[t]here is no express
provision in the law for an F-l student to engage in
employment,” the INS had “[n]evertheless, for many years . . .
permitted students to accept employment under special
conditions.” Chapman Testimony at 26. That permission
included “employment for practical training,” which could “be
engaged in full time” for “increments of 6 months, not to
exceed 18 months.” Id. at 23. In the Commissioner’s view,
that program was entirely “consistent with the intent of the
statute” to ensure that a student “come[s] here solely to pursue
his education” rather than “with the expectation and intention
of working.” Id. at 21. Similarly, 1989 testimony publicly
reminded Congress that F-1 visa-holders were being
“appropriately given the opportunity to engage in a brief period
of practical training upon completion of their university
education and in furtherance of their educational goals.”
Immigration Reform: Hearing Before the Subcomm. on
Immigr. and Refugee Affs. of the S. Comm. on the Judiciary on
S. 358 and S. 448, 101st Cong. 485-486 (1989) (statement of
Frank Kittredge, Pres., Nat’l Foreign Trade Council). And
decisions by the Board of Immigration Appeals throughout this
period also confirm the existence of post-graduation practical
 33
training. See, e.g., Matter of Lee, 18 I. & N. Dec. 96, 96 (BIA
1981); Matter of Kalia, 14 I. & N. Dec. 559, 559 (BIA 1974);
Matter of Wang, 11 I. & N. Dec. 282, 283 (BIA 1965); Matter
of Alberga, 10 I. & N. Dec. 764, 764-65 (BIA 1964).

Washtech argues that prior practical training programs
have not always been identical to the 2016 Rule at issue here.
But the variations are immaterial. What matters is that multiple
presidential administrations for over 70 years have read section
1184(a)(1) to empower the Executive to authorize F-1 students
to remain in the United States for post-graduation practical
training overseen by their schools. And Congress is well aware
of that shared understanding and the continuous executive
practice in conformity with it, yet has never disturbed the
Department’s determination that it has authority to allow post-
graduation practical training for F-1 visa-holders.

This is not a case of longstanding provisions persisting
unnoticed in some statutory backwater. Congress regularly
amends the INA. And it has several times amended provisions
bearing specifically on F-1 visas and nonimmigrant work rules.
See, e.g., Pub. L. No. 87-256, § 109(a), 75 Stat. 527, 534 (1961)
(allowing noncitizen spouse and minor children to accompany
F-1 visa-holder); Pub. L. No. 99-603, § 101, 100 Stat. 3359,
3360-74 (1986) (requiring specific employment authorization
for nonimmigrant workers); Pub. L. No. 101-649, § 221(a), 104
Stat. 4978, 5027-28 (1990) (adding temporary pilot program
for off-campus employment unrelated to F-1 visa-holder’s field
of study); Pub. L. No. 104-208, §§ 625, 641, 110 Stat. 3009,
3009-699-700, 3009-704-07 (1996) (adding limitations related
to F-1 nonimmigrants at public schools); Pub. L. No. 107-173,
§§ 501-502, 116 Stat. 543, 560-63 (2002) (adding monitoring
requirements for foreign students); Pub. L. No. 111-306, 124
Stat. 3280, 3280-81 (2010) (requiring accreditation for
language training programs).
 34
Congress’s repeated amendments of INA provisions
regarding foreign students and nonimmigrant work
opportunities evidence its approval of the practical training
programs it left undisturbed. The Supreme Court has
underscored that, “when Congress revisits a statute giving rise
to a longstanding administrative interpretation without
pertinent change, the ‘congressional failure to revise or repeal
the agency’s interpretation is persuasive evidence that the
interpretation is the one intended by Congress.’” CFTC v.
Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell
Aerospace Co., 416 U.S. 267, 275 (1974)). We recently
reemphasized that the interpretive value of congressional
acquiescence is strengthened where “Congress has amended
various parts” of a statutory regime, “including the specific
provision at issue” in the case at hand, “but has never sought to
override” the relevant interpretation. Modly, 949 F.3d at 773.

Washtech raises just two arguments against the weight of
all this history. First, it points to the wording of the 1947
practical training rule in place when Congress enacted the 1952
INA. Washtech contends that the rule’s reference to practical
training as “required” by the academic institution means it
“must have taken place before graduation,” so shows no
congressional approval of post-coursework practical training.
Appellant Br. at 37. But that slender reed bears no weight. The
1947 rule supported practical training “required or
recommended” by the school, 12 Fed. Reg. 5,355, 5,357 (Aug.
7, 1947) (emphasis added), undercutting the point on its own
terms. And, again, the Senate Committee itself, based on its
investigation of the operation of the 1947 rule soon after it was
promulgated, expressly reported to the Congress that the rule
authorized practical training “after completion of the student’s
regular course of study.” S. Rep. No. 81-1515, at 503 (1950).
 35
Washtech’s second effort to rebut the weight of history
draws on three isolated statements in congressional reports
that, in its view, reveal Congress’s actual intent to disallow
post-graduation practical training. Those statements establish
no such thing. First, a 1952 House Report noted that foreign
students “are not permitted to stay beyond the completion of
their studies.” H.R. Rep. No. 82-1365, at 40 (1952). But the
point there had nothing to do with post-coursework practical
training; rather, it explained that, because of the temporary
nature of their stay, foreign students were identified in the bill
as “nonimmigrants,” i.e., persons intending to return home,
rather than “non-quota immigrants” as they had been in past
legislation, which erroneously implied they intended to resettle
here permanently. Id.; see Immigration Act of 1924, Pub. L.
No. 68-139, § 15, 43 Stat. 153, 162-63 (referring to foreign
students as “non-quota immigrant[s]”).

Second, Washtech pulls out of context a reference in a
Senate Judiciary Committee Report preceding the 1982 INA
amendments. That report noted the amendments would
“specifically limit [the F-1 provision] to academic students,” S.
Rep. No. 96-859, at 7 (1980), which Washtech says shows
Congress’s intention to confine F-1 students to academic, as
distinct from practical, forms of education. In fact, the report
distinguished “academic” students admitted under F-1 from
“nonacademic or vocational students” for whom Congress had
“create[d] a new nonimmigrant category, subparagraph (M),”
which “provide[d] for their entry according to the same terms
and conditions as those set forth for (F) academic students.” Id.
The Report has no bearing on the lawfulness of the OPT
program.

Lastly, Washtech highlights a House Report
accompanying the Immigration Act of 1990, which noted that,
“to assure compliance with the student visa,” the Act would
 36
require visiting students “to be in good academic standing,”
H.R. Rep. No. 101-723, at 66 (1990). Washtech claims the
report “directly contradicts” allowing F-1 students
“employment outside of a course of study.” Appellant Br. at
32. The report’s reference to good academic standing sought
to ensure that the program not be “administered as a temporary
worker program” under which workers might seek to enter as
F-1 students without the requisite purpose to complete
coursework. H.R. Rep. No. 101-723, at 67 (1990). But that
comports with Congress’s approval of OPT. The government
agrees that OPT participants must fulfill academic
requirements as well as obtain their school’s recommendation
of OPT. Indeed, the very passage Washtech quotes in the
House Report also identifies a “concern[]” that those OPT
participants “do not have adequate labor protections” in their
practical training jobs. Id. at 66. Consistent with the terms and
intent of the entire OPT program to authorize employment as
practical training opportunities for foreign students without
displacing U.S. workers, Congress sought to ensure “payment
of prevailing wages” to F-1 students so they would not
undercut wages to which U.S. employees are entitled. Id.

The statements Washtech identifies do nothing to call into
question the robust legislative and administrative practice
showing Congress’s longstanding awareness and repeated
embrace of post-coursework practical training for qualifying
F-1 students.

4.

The centerpiece of Washtech’s challenge is the F-1
provision, which it interprets to preclude reliance on section
1184(a)(1) as support for the 2016 Rule. Washtech misreads
F-1 to exhaustively delineate rather than inform and constrain
 37
the authority Congress separately conferred on the Executive
to set the time and conditions of nonimmigrants’ admission.

The F-1 provision appears in the “Definitions” section of
the INA. See 8 U.S.C. § 1101. Its primary function is to
establish one of several dozen categories of foreign nationals
who may be eligible for a nonimmigrant visa: The applicant
for an F-1 visa must be a “bona fide student” who is “qualified
to pursue a full course of study,” and she must be “seek[ing] to
enter the United States temporarily and solely for the purpose
of pursuing such a course of study” at a U.S. academic
institution. Id. § 1101(a)(15)(F)(i).

Washtech’s central argument is that F-1 goes beyond
identifying who may enter for what purposes; in its view, F-1
also imposes a bright-line graduation-day limit on the
Secretary’s authority to set nonimmigrants’ terms of stay.
Washtech argues that, because F-1 describes “a bona fide
student . . . temporarily and solely . . . pursuing . . . a course of
study . . . at an established . . . academic institution,” id.
(emphasis added), the Secretary lacks authority under section
1184(a)(1) to allow F-1 students to remain in the United States
for any period after they have graduated. That is to say,
according to Washtech, post-graduation practical training
exceeds the Department’s statutory time-and-conditions
authority as constricted by the F-1 provision.

But Washtech overreads F-1’s text, prompted in large part
by its misapprehension of the relationship between F-1 and
section 1184(a)(1).

Start with the text. The F-1 provision itself shows that the
student-visa entry criteria are not terms of stay. Again, take for
example the F-1 criterion that the person “seeks to enter the
United States . . . .” 8 U.S.C. § 1101(a)(15)(F)(i). Washtech’s
reading, which treats any failure to continually meet the F-1
 38
definition as grounds for deportation, nonsensically would
require an admitted F-1 student to continue throughout her stay
to seek to enter the country. It is also awkward at best to read
F-1 to require students to be continually “qualified to pursue a
full course of study” once they have already been admitted and
enrolled, let alone after they have already completed any
significant portion of that course of study. Id. These
“implausible” and “counterintuitive” readings illustrate the
error in Washtech’s view of the F-1 provision and its role in the
statutory scheme. Yellen v. Confederated Tribes of Chehalis
Rsrv., 141 S. Ct. 2434, 2448 (2021); see also, e.g., Republic of
Sudan v. Harrison, 139 S. Ct. 1048, 1060 (2019). Correctly
understood, the F-1 provision sets threshold criteria for entry;
it does not spell out the ongoing terms of stay.

Washtech itself acknowledges that the F-1 criteria it
highlights as continuous requirements are not invariable
constraints on the government’s section 1184(a)(1) power to
regulate the terms of stay. Despite its claim that F-1 prevents
students in that visa class from staying in the country beyond
graduation, for example, Washtech recognizes the
Department’s “discretion” to adopt a rule that permits F-1
students to remain at least for 60 days past graduation, since
students “can’t leave the next day and instantly be gone.” Oral
Arg. Tr. at 16; see 8 C.F.R. § 214.2(f)(5)(iv). But see Diss. Op.
5 n.3. More generally, Washtech does not challenge the
stretches of time DHS allows F-1 students to remain in the
country between school terms or between degree programs, see
8 C.F.R. § 214.2(f)(5)(ii)-(iii), even though students are not
“pursu[ing] a full course of study” at an “academic institution”
during those periods, see 8 U.S.C. § 1101(a)(15)(F)(i).

To some extent, then, Washtech acknowledges the
Department’s authority to allow students to remain here at
times that do not strictly meet the F-1 provision’s entry criteria.
 39
In so doing, it implicitly accepts that F-1 works together with
section 1184(a)(1) to empower the Executive to design
workable and meaningful educational programs for
nonimmigrant foreign students. Washtech points to no
statutory support for its distinction between the Rule’s
allowance for practical training after graduation, which it
challenges, and the exercises of section 1184(a)(1) time-and-
conditions authority that Washtech approves—even though the
latter, too, would contravene F-1 if the provision were treated
as specifying the outer limit of the Secretary’s regulatory
authority over nonimmigrants’ terms of stay.

By seizing on graduation day as the bright-line limit,
Washtech both misapprehends the primary function of F-1 and
fails to grapple with the critical role of the Executive’s time-
and-conditions power under section 1184(a)(1). Congress’s
decision in F-1 to admit foreign students “solely for the purpose
of pursuing” a “full course of study” at an academic institution
was not to impose an end-of-coursework time limit on F-1
nonimmigrants’ admission, but to prevent entry into the
country for the wrong reasons or under false pretenses. “By
including restrictions on intent in the definition of some
nonimmigrant classes, Congress must have meant aliens to be
barred from these classes if their real purpose in coming to the
United States was to immigrate permanently.” Elkins v.
Moreno, 435 U.S. 647, 665 (1978); see S. Rep. No. 81-1515,
at 503 (1950) (emphasizing, in the Senate report on which the
INA was based, that despite delays in approving foreign
students’ applications for work authorization, including for
practical training, the INS should remain involved to “prevent
people from coming in as students when their real intention is
to reside and work here”).

By design, both the longstanding practical-training regime
and its iteration in the 2016 Rule challenged here comport with
 40
the F-1 provision’s purpose requirement. The mere availability
of OPT to students for whom it is ultimately recommended
does not render foreign students ineligible to enter the United
States “solely for the purpose of pursuing” study at an
academic institution. Nor does a decision to participate in
practical training render foreign students retroactively
ineligible to have entered solely for that purpose. Training
through real-world employment overseen by one’s academic
institution has undisputed educational benefits. Supra at 14,
25-26. The 2016 Rule’s programmatic requirements link
employment for practical training with the student’s
coursework at, and recommendation from, their sponsoring
academic institution, and they demand ongoing oversight by
that institution as well as the employer and DHS. Supra at 14-
15, 25-27. Congress understood that it does not detract from
the accuracy or sincerity of F-1 students’ purpose to come to
this country “solely” to undertake a degree program that they
may, once here, participate in practical training recommended,
approved, and overseen by their school to augment the
educational value of that degree. That holds true whether the
student undertakes practical training as a limited period of full-
time employment after completion of coursework, or on a part-
time basis during the academic term. See 8 C.F.R.
§ 214.2(f)(10)(ii)(A)(2), (3).

Washtech’s insistence that practical training conflicts with
the terms of entry under F-1 is exceedingly formalistic. If the
statute did make graduation the temporal outer bound, colleges
and universities aware of the powerful educational advantages
of practical training could presumably design programs for
foreign students that included additional time to follow their
coursework with a year (or up to three years for STEM
students) of full-time practical training before they graduated.
Indeed, the Rule itself allows schools to postpone foreign
students’ graduation until the completion of practical training,
 41
specifying that “[c]ontinued enrollment, for the school’s
administrative purposes, after all requirements for the degree
have been met does not preclude eligibility for [O]ptional
[P]ractical [T]raining.” Id. § 214.2(f)(10)(ii)(A)(3). The Rule
reflects how closely OPT aligns with familiar educational
models—such as undergraduate “co-op” programs,
externships, work in STEM research laboratories, and medical
internships—that incorporate practical training upon
completion of related coursework, whether before or after
students receive their degrees. And, importantly, for many
decades and currently, schools are directly involved in
recommending and overseeing practical training whether or not
it occurs after graduation.

Washtech’s statutory theory would seem to approve
practical training on the employment-before-graduation model
even as Washtech asserts lack of authority for post-graduation
practical training overseen by the same schools for the same
purposes. But the existing practical training regime and an
employment-before-graduation replacement structure are
almost identical: OPT participants pursue employment in their
fields to “improve[] their ability to absorb a full range of
project-based skills and knowledge directly related to their
study.” 81 Fed. Reg. 13,040, 13,049 (Mar. 11, 2016). And,
just as they would for a pre-graduation, post-coursework OPT
stint, school administrators—the Designated School
Officials—screen post-graduation work opportunities for their
educational value and monitor the specific work-based
experience to ensure that it enriches the participant’s course of
study. See 8 C.F.R. § 214.2(f)(11); supra at 14-15. The only
distinction between the hypothetical program and the
challenged one is its timing relative to graduation. But the F-1
provision makes no mention of “graduation” as the bright-line
outer bound for an F-1 student’s stay. And there is no evidence
Congress intended the Executive’s authority under section
 42
1184(a)(1) and F-1 to turn on such formalities in enrollment
structure. Indeed, all the relevant evidence suggests that
Congress has understood and approved of post-graduation
practical training for over seventy years.

Washtech’s only other argument from the text of F-1 is
that the provision’s instruction to schools to inform the
government if nonimmigrant students stop attending “requires
the alien’s course of study to take place at an academic
institution” that can be in a position to make such a report.
Appellant Br. at 19-20. The phrase on which Washtech relies
states that an F-1 student’s approved academic institution
“shall have agreed to report to the [Department] the termination
of attendance of each nonimmigrant student, and if any such
institution of learning or place of study fails to make reports
promptly the approval shall be withdrawn.” 8 U.S.C.
§ 1101(a)(15)(F)(i). According to Washtech, that text
“presupposes” that the academic institution will have “an
ongoing relationship” with the F-1 student “after admission,”
and therefore precludes F-1 students from remaining in the
United States for post-graduation practical training. Appellant
Br. at 19-20.

The most obvious shortcoming of that argument is that the
2016 Rule does require an ongoing relationship between the
academic institution and the F-1 student. As described above,
a school administrator oversees both the F-1 students’
academic studies and every stage of their practical training.
See supra at 14-15, 27. In any event, as the district court noted,
the reporting requirement applies to schools, not F-1 students;
the consequence of a school’s failure to communicate with
DHS regarding its F-1 students’ activities is that the school may
lose its status as an approved participant, not necessarily that
the student must leave the country. Washtech VI, 518 F. Supp.
3d at 467-68. Students who remain after graduation pursuant
 43
to DHS rules are not subject to immediate removal except
under the flawed inference Washtech draws from the reporting
requirements, bolstered by its misreading of the F-1 provision
as stating criteria for the duration of an admitted F-1 student’s
stay.

Washtech’s repeated reliance on the second clause of
section 1184(a)(1) is misplaced for similar reasons. That
clause authorizes the Executive in its discretion to require
nonimmigrants to post bonds to ensure their timely departure:
Congress told the Executive that its regulations “may . . .
prescribe . . . the giving of a bond” as an additional
enforcement tool “to insure that at the expiration of such time”
as the nonimmigrant is authorized to remain in the United
States, “or upon failure to maintain the status under which he
was admitted,” the nonimmigrant “will depart from the United
States.” 8 U.S.C. § 1184(a)(1). The 2016 Rule does not
include a bond requirement, see 8 C.F.R.
§ 214.2(f)(10)(ii)(A)(3), nor does Washtech argue that it must.
Its point is simply that the provision highlights the Executive’s
duty—with or without the aid of a bond—to “insure that” F-1
students “will depart from the United States” at the
“expiration” of their authorized “time,” or when they “fail[] to
maintain the status under which [they were] admitted.” The
2016 Rule’s allowance for post-coursework practical training,
says Washtech, violates that duty. But, as the district court
explained, “Washtech’s argument assumes the conclusion” that
a period of post-graduation practical training is not within the
permissible duration or status for F-1 students. Washtech VI,
518 F. Supp. 3d. at 468. “Washtech cannot answer a question
about the proper scope of the F-1 visa category by pointing to
an obligation to enforce that scope, whatever it may be.” Id.
For the reasons explained above, that conclusion is belied by
the text of both section 1184(a)(1) and the F-1 provision, as
well as their long history of interpretation by the executive and
 44
legislative branches, all of which confirm the Department’s
authority to act within reason to set the duration of F-1
students’ authorized stay.

In sum, we reject Washtech’s reading of the purpose and
dropout-reporting language in the F-1 provision and of section
1184(a)(1)’s bond clause as establishing that foreign students
who enter lawfully on F-1 visas may not be allowed to remain
in the United States for Optional Practical Training after
completion of their coursework. That reading misreads the
text, produces unworkable and arbitrary results, and
contravenes the demonstrated intent of Congress.

5.

Washtech’s final argument is a floodgates warning: If we
do not read the definitions of visa types in 8 U.S.C.
§ 1101(a)(15)(A)-(V) as specifying continuous terms of stay
on nonimmigrants, then DHS’s authority is effectively
boundless. The Department could “regulate out of existence
all differences among non-immigrant visas—other than what
the alien has to show at the time of admission,” such as by
allowing tourist visa-holders to stay and work in the country.
Appellant Br. at 21. Likewise, there would be “no limit to the
amount of time DHS can permit any non-immigrant to remain
in the United States.” Id. at 27. Specifically, if the F-1
provision does not require DHS to treat F-1 students as
unauthorized to remain in the country once they graduate, then
the Department could “allow them to abandon” their purpose
of studying at an academic institution “immediately after
[their] entry” into the United States and stay here indefinitely.
Id. at 20.

The INA’s structure and basic principles of administrative
law constrain DHS’s regulatory authority and prevent
Washtech’s predicted flood. As noted above, supra at 25-27,
 45
the exercise of the time-and-conditions authority must
“reasonably relate[]” to the distinct composition and purpose
of the subject nonimmigrant class. Doe, 1, 920 F.3d at 871;
Narenji, 617 F.2d at 747. That limiting principle is built into
the relationship between the Department’s section 1184(a)(1)
time-and-conditions authority and the visa class definitions,
including F-1. Section 1184(a)(1) applies to “admission to the
United States of any alien as a nonimmigrant,” and the INA
defines “nonimmigrant” class-by-class rather than in gross.

As explained in the prior section, the time and conditions
DHS sets are not cabined to the terms of the entry definition,
even as the cross-reference in section 1184(a)(1) links the two
provisions. The F-1 provision at issue here defines the
purposes of that student visa class, and accordingly provides
the touchstone for assessing the validity of the Department’s
exercise of its time-and-conditions authority over this class of
nonimmigrants. Time-and-conditions rules must be reasonably
related to the purpose of the nonimmigrant visa class. That
requisite relationship rebuts Washtech’s floodgates concern
and makes clear that DHS has no “plenary authority” to allow
F-1 visa-holders to stay indefinitely. Diss. Op. 10, 15. It
likewise prevents the Department from, to take Washtech’s
example, granting indefinite work authorization as a condition
of a B-2 tourist’s admission, the purpose of which is to enter
the country “temporarily for pleasure.” 8 U.S.C.
§ 1101(a)(15)(B). Admitting a nonimmigrant tourist is
different from admitting a nonimmigrant student, business
traveler, diplomat, agricultural worker, performer, or crime
witness, see 8 U.S.C. § 1101(a)(15)(A), (B), (F)(i), (H)(ii),
(P)(ii), (S), and the authority to set times and conditions on
those distinct admissions differs accordingly.

For the reasons discussed at length above, the 2016 Rule
is reasonably related to the nature and purpose of the F-1 visa
 46
class. See supra at 25-28. DHS designed the 2016 Rule to
advance the core purpose of admission for the F-1 visa class:
pursuing a full course of study at an established academic
institution. And the Rule imposes strict requirements to ensure
a “direct relat[ionship]” between the F-1 student’s practical
training and his or her coursework. 8 C.F.R.
§ 214.2(f)(10)(ii)(A); see id. § 214.2(f)(10)(ii)(C)(7); supra at
26-27. The OPT program is therefore a valid exercise of the
Secretary’s statutory authority.

III. OPT’s Work Authorization

Washtech further claims that OPT is unlawful because
DHS lacks the authority to provide any work authorization at
all. Appellant Br. at 27-32. That claim fails, too. The
Department’s charge to set the “conditions” of nonimmigrant
admission includes power to authorize employment—a fact
that Congress has expressly recognized by statute. The
Immigration Control and Reform Act (IRCA) defines non-
nationals authorized to work as persons so authorized “either”
by the statute “or by the Attorney General.” 8 U.S.C.
§ 1324a(h)(3). IRCA thereby acknowledges the Executive’s
prerogative, where otherwise appropriate, to use powers that do
not expressly mention non-nationals’ work to grant work
authorization.

A.

In its arguments regarding work authorization, Washtech
again ignores the INA’s explicit grant of authority to the
Department. The statute commands DHS to “establish such
regulations” as its Secretary “deems necessary for carrying out
his authority.” 8 U.S.C. § 1103(a)(3). And it specifically
provides that the “admission to the United States of any alien
as a nonimmigrant shall be for such time and under such
conditions as the Attorney General may by regulations
 47
prescribe.” Id. § 1184(a)(1). Here, the operative term is
“conditions,” which grants DHS authority to determine the
circumstances of a nonimmigrant’s stay in the United States.
See Condition, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 473 (2002) (“pl: attendant circumstances”). The
Department exercises that authority over F-1 visa-holders in
many ways. For instance, DHS regulations determine where
they can study, 8 C.F.R. § 214.2(f)(6), how many courses they
must take, id., what any accompanying spouse or children may
do while in the country, id. § 214.2(f)(15), and when visa-
holders can take temporary absences from the United States
and re-enter on the same visa, id. § 214.2(f)(4). Whether they
can work is no different; Washtech provides no basis to
conclude that employment opportunities are excluded from the
Department’s comprehensive control over nonimmigrant
students’ time in the United States. See 8 U.S.C. § 1184(a)(1).

History corroborates that Congress meant what it plainly
said in the INA when it granted DHS authority in section
1184(a)(1) to set the conditions of F-1 students’ admission.
Washtech does not contest, for instance, that DHS and its
predecessors have been authorizing student visa-holders to
work at jobs related to their studies since at least 1947. See 12
Fed. Reg. 5,355, 5,355-57 (Aug. 7, 1947). And across decades
of the Executive doing so openly, we have explained, Congress
has chosen to maintain the relevant provisions of the F-1
student category when it enacted the INA in 1952 and made
many ensuing amendments—all of which preserved both the
F-1 category and the section 1184(a)(1) authority under which
the Executive had long granted work authorizations. See, e.g.,
Proposed Rules for Employment Authorization for Certain
Aliens, 44 Fed. Reg. 43,480, 43,480 (July 25, 1979) (“authority
to grant employment authorization”).
 48
Indeed, when amending the INA in 1986 to create its
employment authorization regime, Congress appears to have
borrowed key terminology and concepts from earlier
Department regulations—regulations that both expressly
declared DHS’s power to grant work authorization and granted
it to certain nonimmigrant classes. See Br. of American
Immigration Council at 7-15. Even earlier, in 1961, Congress
also expressly exempted F-1 students from several forms of
wage taxes—a measure that would be completely unnecessary
if those students lacked authorization to work. 26 U.S.C.
§§ 3121(b)(19), 3306(c)(19); 42 U.S.C. § 410(a)(19); see Pub.
L. No. 87-256, § 110, 75 Stat. 527, 536-37 (1961). In other
words, “Congress has not just kept its silence by refusing to
overturn [an] administrative construction, but has ratified it
with positive legislation.” Schor, 478 U.S. at 846 (quoting Red
Lion Broad. Co., Inc. v. FCC, 395 U.S. 367, 381-82 (1969)).
We “cannot but deem that construction virtually conclusive.”
Id.

B.

The 1986 Immigration Control and Reform Act further
confirms that DHS may lawfully authorize employment for
nonimmigrants, including F-1 students. IRCA established a
“comprehensive scheme” to govern the employment of foreign
nationals in the United States. Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 147 (2002). As relevant here,
IRCA prohibits the employment of “unauthorized aliens.” 8
U.S.C. § 1324a(a)(1). And it defines an “unauthorized” alien
as one who is neither “lawfully admitted for permanent
residence” nor “authorized to be so employed by this chapter
or by the Attorney General”—now DHS. Id. § 1324a(h)(3).

IRCA’s express recognition that aliens may be “authorized
to be . . . employed . . . by” DHS confirms that Congress has
 49
deliberately granted the Executive power to authorize
employment. In denying a petition for rulemaking, the Reagan
administration reaffirmed the position the Executive has
maintained for decades:

[T]he only logical way to interpret [Section 1324a] is
that Congress, being fully aware of the Attorney
General’s authority to promulgate regulations, and
approving of the manner in which he has exercised that
authority in this matter, defined “unauthorized alien”
in such fashion as to exclude aliens who have been
authorized employment by the Attorney General
through the regulatory process, in addition to those
who are authorized employment by statute.

Employment Authorization; Classes of Aliens Eligible, 52 Fed.
Reg. 46,092, 46,093 (Dec. 4, 1987); see also 1 CHARLES
GORDON ET AL., IMMIGRATION LAW & PROCEDURE
§ 7.03[2][c] (2019) (reaching same conclusion).

Washtech asserts that section 1324a(h)(3) does not
expressly confer any authority to DHS, Appellant Br. at 28-30,
and that if it did, it would violate the nondelegation doctrine,
id. at 30-31. Because section 1324a(h)(3) could not grant the
power to issue work authorization, Washtech concludes, DHS
must not have that power at all. Those arguments miss the
mark. Washtech is right that section 1324a(h)(3) is not the
source of the relevant regulatory authority; it just defines what
it means for an alien to be “unauthorized” for employment. But
that was never the government’s point. What matters is that
section 1324a(h)(3) expressly acknowledges that employment
authorization need not be specifically conferred by statute; it
can also be granted by regulation, as it has been in rules
promulgated pursuant to DHS’s statutory authority to set the
“conditions” of nonimmigrants’ admission to the United
 50
States. The OPT Rule’s authorization for F-1 students to work
in jobs that provide practical training related to their course of
study is just such a rule. Washtech’s claim that the OPT Rule
conflicts with the congressional prohibition against
unauthorized aliens’ employment therefore fails.

IV. Any Remaining Ambiguity Counsels Deference

The most straightforward reading of the INA is that it
authorizes DHS to apply to admitted F-1 students the additional
“time” and “conditions” that enable them to remain here while
participating in OPT recommended and overseen by their
respective academic institutions. But at a minimum, even if it
is ambiguous on the point, the statute may reasonably be
understood as the Department has read it in support of the 2016
OPT Rule. That interpretation thus merits our deference.
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837
(1984). We readily conclude that OPT is “neither arbitrary or
capricious in substance, nor manifestly contrary to the statute,”
and “thus warrant[s] the Court’s approbation.” Astrue v.
Capato ex rel. B.N.C., 566 U.S. 541, 558 (2012) (internal
quotation marks omitted) (formatting modified). “[J]udicial
deference to the Executive Branch is especially appropriate in
the immigration context where officials exercise especially
sensitive political functions that implicate questions of foreign
relations.” I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)
(internal quotation marks omitted); see also Scialabba v.
Cuellar de Osorio, 573 U.S. 41, 56-67 (2014) (opinion of
Kagan, J.); Wang v. Blinken, 3 F.4th 479, 483 (D.C. Cir. 2021).

“[W]hen Congress grants an agency the authority to
administer a statute by issuing regulations with the force of
law, it presumes the agency will use that authority to resolve
ambiguities in the statutory scheme.” Encino Motorcars,
LLC v. Navarro, 579 U.S. 211, 220 (2016). Accordingly, Step
 51
One of the Chevron test asks whether the statute is
unambiguous in the relevant sense—that is, whether Congress
has “directly addressed the precise question at issue.” Mayo
Found. v. United States, 562 U.S. 44, 52 (2011). Here, the
question is whether DHS’s time-and-conditions authority
empowers the Department to permit F-1 students to stay in the
United States for post-graduation practical training. If the
statute is ambiguous on that point, we ask at Step Two whether
the agency has made a “a reasonable choice within [the] gap
left open by Congress.” Chevron, 467 U.S. at 866.

Washtech claims that Congress has directly addressed the
relevant question—specifically, that the F-1 provision’s visa
entry criteria impose continuous terms of stay, so preclude
DHS from allowing F-1 students to remain in the country if
they are not currently enrolled at an academic institution. But,
as we have explained, the best reading of the F-1 provision is
that it imposes threshold entry criteria; it does not itself spell
out the ongoing conditions under which F-1 students may
lawfully stay but rather constrains the exercise of time-and-
conditions authority under Section 1184(a)(1). Even if
alternative readings are available, making the statute materially
ambiguous, it is at least reasonably susceptible of the
Department’s interpretation.

The Department’s view of its F-1 and time-and-conditions
authority as supportive of the 2016 Rule is wholly reasonable.
Substantial and uncontested evidence in the record, together
with other public analyses amici highlighted, demonstrates the
educational value of practical training for OPT participants,
especially in the STEM field. See, e.g., 81 Fed. Reg. 13,040,
13,051, 13,088 (Mar. 11, 2016); J.A. 173-78 (Comment letter
of 12 major university associations); id. 147-50 (Comment
letter of NAFSA: Association of International Educators); Br.
of Amicus Curiae Presidents’ Alliance on Higher Education
 52
and Immigration at 6-11. And OPT’s nexus to an F-1 student’s
course of study, together with the student’s application to the
school for approval and the school’s reporting responsibilities
to DHS, ensure that the additional time and practical training
opportunities available through the program help F-1 students
to cement the knowledge acquired in their coursework
consistent with legal limits. See 8 C.F.R. § 214.2(f)(10)-(11);
81 Fed. Reg. at 13,041-42, 13,090-98, 13,063, 13,068-69. In
short, DHS applied its expertise to conclude that OPT serves
the purposes of the F-1 visa category and comports with the
powers and limits of the INA.

As neither “experts in the field” nor “part of either political
branch of the Government,” we have a “duty to respect
legitimate policy choices made by those who [are].” Chevron,
467 U.S. at 865-66. We appreciate that Washtech strongly
disagrees with those policy choices. Nonetheless, “[t]he
responsibilities for assessing the wisdom of such policy choices
and resolving the struggle between competing views of the
public interest are not judicial ones.” Id. at 866. The evidence
and analysis on which DHS relied in promulgating the 2016
OPT Rule demonstrate the reasonableness of the Department’s
interpretation of its time-and-conditions authority, 8 U.S.C.
§ 1184(a)(1), in the context of the F-1 visa program, id.
§ 1101(a)(15)(F)(i). That interpretation warrants “particular
deference” where, as here, it takes the form of a
“longstanding,” Barnhart v. Walton, 535 U.S. 212, 220 (2002);
see NLRB v. Bell Aerospace Co. Div. of Textron, 416 U.S. 267,
274-75 (1974), and widely known executive-branch program
that Congress has left undisturbed, even as it has frequently
revisited and amended the statutory scheme in other closely
related respects, Schor, 478 U.S. at 845-46; Creekstone Farms
Premium Beef, L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500
(D.C. Cir. 2008); see supra at 28-36. As a result, any ambiguity
 53
in the scope of the time-and-conditions authority counsels
deference to the Executive’s interpretation.

V. Washtech’s Motion to Strike

There is one final issue to resolve. Washtech asserts that
the district court erroneously denied its Motion to Strike the
Brief Amici Curiae of Institutions of Higher Education in
Support of Intervenors. As the district court noted, it has broad
discretion to allow amicus briefs when they provide “unique
information or perspective” that “can help the [c]ourt beyond
the help that the lawyers for the parties are able to provide.”
Washtech VI, 518 F. Supp. 3d at 453 n.2 (quoting Hard Drive
Prods. Inc. v. Does 1–1,495, 892 F. Supp. 2d 334, 337 (D.D.C.
2012)). Washtech asserts that the amicus brief contained
information that would be “inadmissible under the federal rules
of evidence” and that it “attempted to supplement the record.”
See Appellant Br. at 44-46. But the district court relied on
nothing outside the administrative record; it decided only the
legal question whether OPT exceeded the Department’s
statutory authority and mentioned the brief only to
acknowledge its existence when denying the motion to strike.
Washtech VI, 518 F. Supp. 3d at 453 n.2. Even if the disputed
amicus brief were impermissible, it was not shown to be
prejudicial in any way. We therefore affirm the district court’s
valid exercise of its discretion to deny the motion to strike.

* * *

For the foregoing reasons, we affirm the district court
decision denying Washtech’s motion for summary judgment,
granting the Department’s and Intervenors’ motions for
summary judgment, and denying Washtech’s motion to strike.

So ordered.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and dissenting in part:

Although I agree with my colleagues on standing, I part
company on the merits. On appeal from the district court’s
grant of summary judgment for the Department of Homeland
Security (DHS), the merits question is whether either 8 U.S.C.
§ 1101(a)(15)(F)(i) or 8 U.S.C. § 1324a(h)(3) authorizes the
DHS to allow nonimmigrant “students” to work in the United
States for up to three years past completion of their degree.
Because the first statute, the F-1 statute, plainly does not
delegate the asserted authority and the district court relied
entirely on that provision to grant summary judgment to the
government, 1 I would reverse and remand.

I. BACKGROUND

A. STATUTORY BACKGROUND

The Immigration and Nationality Act of 1952 (INA), Pub.
L. No. 82-414, 66 Stat. 163, and its subsequent amendments
define “classes of nonimmigrant aliens” for admission to the
United States. See 8 U.S.C. § 1101(a)(15). The DHS
administers the INA and is authorized to admit the specified
classes of nonimmigrants and to prescribe regulations setting
the duration and conditions of their admission. See id.
§ 1184(a)(1). 2 DHS regulations “insure that at the expiration of

1
As discussed infra at 20–22, the district court did not address
whether section 1324a(h)(3) provides independent statutory
authority for the optional practical training (OPT) program.
2
The statute refers to the Attorney General because the
Immigration and Naturalization Service (INS) was within the
Department of Justice and administered the INA before the DHS was
created in 2002. See Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005)
(citing 6 U.S.C. §§ 251(2), 252(a)(3), 271(b)). For ease of reference,
I refer to the DHS as the responsible government agency. See Wash.
 2
such [duration] or upon failure to maintain the status under
which he was admitted, . . . such alien will depart from the
United States.” Id.

Colloquially, a nonimmigrant’s class designates the type
of visa he holds. An F-1 visa holder is thus a nonimmigrant
admitted under the F-1 statute, 8 U.S.C. § 1101(a)(15)(F)(i). A
number of provisions of the INA are at issue in this case but
the primary provision is the F-1 statute, which describes an F-
1 visa holder as follows:

an alien having a residence in a foreign country
which he has no intention of abandoning, who
is a bona fide student qualified to pursue a full
course of study and who seeks to enter the
United States temporarily and solely for the
purpose of pursuing such a course of study
consistent with section 1184(l) of this title at an
established college, university, seminary,
conservatory, academic high school,
elementary school, or other academic institution
or in an accredited language training program in
the United States, particularly designated by
him and approved by the [Secretary of
Homeland Security] after consultation with the
Secretary of Education, which institution or
place of study shall have agreed to report to the
[Secretary of Homeland Security] the
termination of attendance of each nonimmigrant
student, and if any such institution of learning
or place of study fails to make reports promptly
the approval shall be withdrawn.

All. of Tech. Workers v. DHS (Washtech IV), 892 F.3d 332, 337 n.1
(D.C. Cir. 2018).
 3
8 U.S.C. § 1101(a)(15)(F)(i).

Another class of nonimmigrant is the H-1B visa holder. An
H-1B visa is available for employment in a “specialty
occupation,” 8 U.S.C. § 1101(a)(15)(H), or in those
occupations requiring “(A) theoretical and practical application
of a body of specialized knowledge, and (B) attainment of a
bachelor’s or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation in the
United States,” id. § 1184(i)(1). To qualify for a specialty
occupation, the nonimmigrant applicant must have received
“full state licensure to practice in the occupation, if such
licensure is required to practice”; have “complet[ed] . . . the
degree described [above] for the occupation”; or have
“experience in the specialty equivalent to the completion of
such degree, and . . . recognition of expertise in the specialty
through progressively responsible positions relating to the
specialty.” Id. § 1184(i)(2). Since the creation of the modern
H-1B visa in 1990, see Immigration Act of 1990, Pub. L. No.
101-649, § 205(c), 104 Stat. 4978, 5020, the Congress has
capped the total number of H-1B visas the DHS may issue each
year. 8 U.S.C. § 1184(g)(1), (g)(5).

The final piece of the statutory puzzle is the Immigration
Reform and Control Act of 1986 (IRCA), Pub. L. 99-603, 100
Stat. 3359 (1986), in which the Congress made the
“employment of unauthorized aliens unlawful,” id. § 101, 100
Stat. 3360 (codified at 8 U.S.C. § 1324a(a)). More precisely,
the IRCA makes it unlawful for an employer to “hire . . . for
employment in the United States an alien knowing the alien is
an unauthorized alien (as defined in subsection (h)(3)).” 8
U.S.C. § 1324a(a)(1)(A). The definitional provision, section
1324a(h)(3), states:
 4
As used in this section, the term “unauthorized
alien” means, with respect to the employment of
an alien at a particular time, that the alien is not
at that time either (A) an alien lawfully admitted
for permanent residence, or (B) authorized to be
so employed by this chapter or by the [Secretary
of Homeland Security].

8 U.S.C. § 1324a(h)(3).

B. REGULATORY AND PROCEDURAL BACKGROUND

Because we have previously addressed much of the
regulatory and procedural background during the long life of
this litigation, see Wash. All. of Tech. Workers v. DHS
(Washtech IV), 892 F.3d 332 (D.C. Cir. 2018), I confine this
background to the relevant components only.

The INA authorizes the Secretary of Homeland Security to
promulgate regulations “and perform such other acts as he
deems necessary for carrying out his authority under the
[INA].” 8 U.S.C. § 1103(a)(3). Relying on that authority and
the other authorities outlined above, the DHS thrice—in 1992,
2008 and 2016—promulgated regulations extending the F-1
nonimmigrant visa to include a period of employment after the
visa holder finishes his degree, which employment is termed
post-completion “optional practical training” or OPT. See, e.g.,
Pre-Completion Interval Training; F–1 Student Work
Authorization, 57 Fed. Reg. 31,954, 31,955–56 (July 20, 1992)
(1992 OPT Rule). To capture post-completion OPT, the DHS
defines a nonimmigrant student’s duration of F-1 status as “the
time during which an F–1 student is pursuing a full course of
study at an educational institution approved by the [agency] for
attendance by foreign students, or engaging in authorized
 5
practical training following completion of studies.” 8 C.F.R.
§ 214.2(f)(5)(i). 3

The 1992 OPT Rule allowed “[a]n F–1 student [to]
apply . . . for authorization for temporary employment for
[OPT] directly related to the student’s major area of study” and
authorized OPT to extend “[a]fter completion of all course
requirements for the degree” or “after completion of the course
of study.” 57 Fed. Reg. at 31,956 (codified at 8 C.F.R.
§ 214.2(f)(10)(ii)(A) (1992)). The 1992 OPT Rule permitted
up to twelve months of post-completion OPT. Id. (codified at
8 C.F.R. § 214.2(f)(11) (1992)).

In 2008, the DHS promulgated a regulation that allowed
F-1 students with Science, Technology, Engineering and
Mathematics (STEM) majors to apply for up to a seventeen-
month extension of OPT. Extending Period of Optional
Practical Training by 17 Months for F–1 Nonimmigrant
Students with STEM Degrees and Expanding Cap-Gap Relief
for All F–1 Students with Pending H–1B Petitions, 73 Fed.
Reg. 18,944, 18,944–56 (Apr. 8, 2008) (2008 OPT Rule). After
the Washington Alliance of Technology Workers (Washtech),
a labor union representing STEM workers, successfully
challenged the DHS’s failure to undertake notice and comment
before issuing the rule, the district court vacated the rule but
stayed its vacatur until 2016 to allow the DHS to correct the

3
Because foreign students are often admitted for “duration of
status,” they are not admitted until a specific date but instead until
their status ends. 2 CHARLES GORDON ET AL., IMMIGRATION LAW &
PROCEDURE § 18.03[7][b] (rev. ed. 2022). In the case of an F-1
student, the termination date is the day the “course of study” for
which he was admitted ends. 8 U.S.C. § 1101(a)(15)(F)(i).
 6
error. Wash. All. of Tech. Workers v. DHS (Washtech I), 156 F.
Supp. 3d 123, 145–49 (D.D.C. 2015). 4

In 2016, after undertaking notice and comment, the DHS
issued the final rule now under attack. Improving and
Expanding Training Opportunities for F–1 Nonimmigrant
Students with STEM Degrees and Cap-Gap Relief for All
Eligible F–1 Students, 81 Fed. Reg. 13,040, 13,040–122 (Mar.
11, 2016) (2016 OPT Rule). The 2016 OPT Rule again
extended the duration of permissible OPT—this time to
twenty-four months for STEM students. When combined with
the twelve-month extension promulgated in 1992, the 2016
OPT Rule thus permitted STEM F-1 students to remain and
work in the U.S. for up to thirty-six months after receiving their
degree. Id. at 13,087.

Shortly after the 2016 OPT Rule’s promulgation,
Washtech filed the instant complaint alleging, inter alia, that
the DHS’s issuances of the 1992 OPT Rule (Count I) and the
2016 OPT Rule (Count II) exceeded its statutory authority. The
district court dismissed the complaint, reasoning that Washtech
lacked standing as to Count I and that Washtech had
“conceded” that it had failed to state a claim for relief by not
responding to the DHS’s arguments in opposition to Count II.
Wash. All. of Tech. Workers v. DHS (Washtech III), 249 F.
Supp. 3d 524, 536–37 (Count I), 555 (Count II) (D.D.C. 2017).
Washtech appealed and we reversed in 2018. Washtech IV, 892
F.3d at 339. We affirmed the district court’s dismissal of Count
I on the alternative ground that the claim was untimely because

4
I use Washtech I to remain consistent with the majority’s
numbering. The district court’s earlier judgment in the case was
vacated as moot and is not relevant to this appeal. See Wash. All. of
Tech. Workers v. DHS, 74 F. Supp. 3d 247 (D.D.C. 2014), judgment
vacated, appeal dismissed, 650 F. App’x 13 (D.C. Cir. 2016)
(Washtech II).
 7
the six-year window to challenge the rule had closed in 1998.
Id. at 342. We noted, however, that “the dismissal of Count I
does not foreclose Washtech’s challenge to the statutory
authority of the OPT program as a whole because the 2016 Rule
may have reopened the issue anew.” Id. We instructed the
district court to consider on remand “whether the reopening
doctrine applies to the issue raised in Count II.” Id. at 339. On
Count II, we reversed the district court’s dismissal, concluding
that Washtech had standing to challenge the 2016 OPT Rule
based on increased competition faced by its members as a result
of the rule. Id. at 341–42.

On remand, the district court held the DHS had reopened
the statutory authority issue as to the entire OPT program
because the DHS had “reconsidered its authority to implement
the OPT Program” in the 2016 OPT Rule. Wash. All. of Tech.
Workers v. DHS (Washtech V), 395 F. Supp. 3d 1, 14 (D.D.C.
2019). It also allowed three parties to intervene. Id. at 15–21.5
The case proceeded to summary judgment solely on Count II
of the complaint, which alleges that the “DHS policy of
allowing aliens to remain in the United States after completion
of the course of study to work or be unemployed is in excess of
DHS authority.” Compl. ¶ 63. In the order sub judice, the
district court granted summary judgment to the DHS and the
intervenors. Wash. All. of Tech. Workers v. DHS (Washtech
VI), 518 F. Supp. 3d 448, 453 (D.D.C. 2021). Borrowing much
of its reasoning from its vacated Washtech I opinion, the court
applied the Chevron doctrine and determined that at Chevron
step one, the F-1 statute is ambiguous because “Congress has
not directly addressed the precise question at issue, namely,
whether the scope of F-1 encompasses post-completion

5
The intervenors are the National Association of
Manufacturers, the Chamber of Commerce of the United States of
America and the Information Technology Industry Council.
 8
practical training.” Id. at 465 (citations and internal quotation
marks omitted). In particular, the district court determined that
“the statute’s lack of a definition for the term ‘student’ creates
ambiguity.” Id. (quoting in entirety Washtech I, 156 F. Supp.
3d at 139). At Chevron step two, the district court concluded
that “the [2016 OPT Rule] is a reasonable interpretation of the
F-1 statute.” Id. at 475. The district court did not address
whether another statutory provision independently provides
adequate authority for post-completion OPT. 6

II. ANALYSIS

“We review de novo the District Court’s grant of summary
judgment,” Castlewood Prods., LLC v. Norton, 365 F.3d 1076,
1082 (D.C. Cir. 2004), and more precisely, because the district
court in this case reviewed an agency action under the
Administrative Procedure Act (APA), see 5 U.S.C.
§ 706(2)(C), ‘[w]e review the administrative record and give
no particular deference to the District Court’s views.’” Genus
Med. Techs. LLC v. FDA, 994 F.3d 631, 636 (D.C. Cir. 2021)
(alteration in original) (quoting Eagle Pharms., Inc. v. Azar,
952 F.3d 323, 329–30 (D.C. Cir. 2020)). We review the DHS’s
decision to promulgate the 2016 OPT Rule “under the familiar
standards of the [APA], which require that we uphold the

6
The DHS primarily relied on the F-1 statute and its “broad
authority” under 8 U.S.C. § 1184(a)(1) “to determine the time and
conditions under which nonimmigrants, including F–1 students, may
be admitted to the United States.” 2016 OPT Rule, 81 Fed. Reg. at
13,044–45. It also cited 8 U.S.C. § 1324a(h)(3) as statutory support
for the assertion that the Secretary “has broad authority to determine
which individuals are authorized for employment in the United
States.” Id. at 13,045. The district court only held that the F-1 statute
authorizes OPT and did not mention whether section 1324a(h)(3)
additionally or independently authorizes the program. See Washtech
VI, 518 F. Supp. 3d at 475.
 9
[agency’s] decision unless it is . . . ‘in excess of statutory
jurisdiction, authority, or limitations.’” Id. (citing 5 U.S.C.
§ 706(2)).

I first address whether the F-1 statute authorizes the DHS
to promulgate the 2016 OPT Rule and to grant post-completion
OPT. 7 I would hold that it does not, necessitating a reversal of
the district court. Next, I address the other asserted statutory
authorities for the 2016 OPT Rule and the OPT program and
conclude that a remand is appropriate. See infra at Section II.B.

A. THE F-1 STATUTE

The parties agree that the two-step Chevron framework
applies to the F-1 statute analysis. Under this familiar
framework, we first ask “whether Congress has directly spoken
to the precise question at issue,” Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, 467 U.S. 837, 842 (1984), and, if it has, we
“give effect to [its] unambiguously expressed intent,” id. at
843. If we instead find that the Congress has not spoken to the
precise question at issue, we apply step two and examine
whether the agency’s interpretation “is based on a permissible
construction of the statute.” Id.

1.

I begin with the text. See Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253–54 (1992) (“[I]n interpreting a statute a
court should always turn first to one, cardinal canon before all
others. We have stated time and time again courts must
presume that a legislature says in a statute what it means and
means in a statute what it says there.” (citations omitted)).
Because “the plain language of [the F-1 statute] is

7
As noted earlier, I agree with my colleagues’ standing analysis
and join it in toto.
 10
‘unambiguous,’ ‘[the] inquiry [should] begin[] with the
statutory text, and end[] there as well.’” See Nat’l Ass’n of
Mfrs. v. DOD, 138 S. Ct. 617, 631 (2018) (quoting BedRoc
Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (plurality
opinion)).

The F-1 statute, see supra at 2–3, includes three modifiers
of the words “an alien” that effectively create requirements that
a nonimmigrant must meet to qualify for F-1 status. The DHS
may grant F-1 status to only an alien (1) “having a residence in
a foreign country which he has no intention of abandoning,”
(2) “who is a bona fide student qualified to pursue a full course
of study” and (3) “who seeks to enter the United States
temporarily and solely for the purpose of pursuing such a
course of study.” 8 U.S.C. § 1101(a)(15)(F)(i).

The DHS and the intervenors argue that the latter two
requirements plausibly include on-the-job training and impose
only entry requirements. See, e.g., Appellee Br. 28–31. As the
argument goes, the F-1 statute is silent as to the meaning of
“student” and “course of study,” which purportedly allows a
reading that “an F-1 student’s course of study . . . include[s] a
period of post-graduation practical training in the student’s
field of study.” Id. at 30; see also Intervenor Br. 15–16. As the
district court concluded, see Washtech I, 156 F. Supp. 3d at
139, they argue that the inclusion of “seeks to enter” means that
the F-1 statute’s “bona fide student” and “course of study”
requirements apply only at entry and that once the
nonimmigrant qualifies for entry, the DHS has plenary
authority to “formulat[e], by regulation, the ‘conditions’ for
maintaining [F-1] status after entry.” Intervenor Br. 16 (quoting
8 U.S.C. § 1184(a)(1)); see also Appellee Br. 31.

I am not so persuaded. Our court has previously
interpreted the first modifier—“having a residence in a foreign
 11
country which he has no intention of abandoning,” 8 U.S.C.
§ 1101(a)(15)(F)(i)—as an ongoing requirement to maintain F-
1 status. See Anwo v. INS, 607 F.2d 435, 437 (D.C. Cir. 1979)
(per curiam). The intervenors argue that unlike the first
requirement, the latter two requirements are set off by a
comma, a syntactic distinction that, by their lights,
differentiates the first as an ongoing requirement and the latter
two as entry requirements. Intervenor Br. 23 n.5. Where the
intervenors see a distinction, I see a list of three requirements
and the omission of an Oxford comma. More to the point, the
intervenors’ minor syntactic distinction is of no help because
in prioritizing syntax and separating the latter two modifiers
from the first, the intervenors ignore critical portions of the
text, leading to an “unnatural reading” of the F-1 statute. See
Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001); see
also United States v. Barnes, 295 F.3d 1354, 1361 (D.C. Cir.
2002) (“In interpreting a statute, . . . we are to determine its
true, natural meaning, where ascertainable, irrespective of
cumbersome syntax.”); United States v. Shreveport Grain &
Elevator Co., 287 U.S. 77, 82–83 (1932) (“To determine the
intent of the law, the court, in construing a statute will disregard
the punctuation, or will repunctuate, if that be necessary, in
order to arrive at the natural meaning of the words employed.”
(citations omitted)).

The second modifier is also naturally read as an ongoing
requirement because it contains no temporal restriction on its
requirement that an F-1 visa holder must be “a bona fide
student qualified to pursue a full course of study.” See 8 U.S.C.
§ 1101(a)(15)(F)(i). Intervenors obliquely argue that the
inclusion of “qualified to pursue a full course of study”
indicates that the Congress was “looking to matters as of the
date of entry.” Intervenor Br. 16 (emphasis added by
intervenors) (quoting 8 U.S.C. § 1101(a)(15)(F)(i) in the first
quotation). Of course, the potential F-1 visa holder must
 12
“qualif[y]” for admission into the United States but there is
nothing in the text of this modifier indicating that once
admitted, the F-1 visa holder may stop being a student. To the
contrary, the text reads “an alien . . . , who is a bona fide
student,” without mentioning entry at all. 8 U.S.C.
§ 1101(a)(15)(F)(i) (emphasis added). Even the DHS seems to
acknowledge the ongoing nature of this requirement. See Oral
Arg. Tr. 32:4–23 (DHS noting that because “some of the
September 11 attackers” entered on F-1 visas, the Congress put
the “onus on the universities to report students who were not
complying or were not going to classes, because at that point
they were out of status”). 8 Moreover, reading the second and
third requirements as entry-only requirements makes
superfluous the “is” in the “is a bona fide student” requirement.
Interpreting the second requirement as an ongoing requirement,
however, “gives effect to every clause and word of [the F-1]
statute.” Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 106
(2011) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))
(some internal quotation marks omitted).

To support its entry-only-requirement interpretation, the
DHS primarily relies on the third modifier’s use of “seeks to
enter” and on absurdly overbroad interpretations of “student”
and “course of study.” See 8 U.S.C. § 1101(a)(15)(F)(i)
(requiring an F-1 visa holder to be, inter alia, an “alien . . . who
seeks to enter the United States temporarily and solely for the

8
The intervenors also seem to acknowledge that “student” or
“course of study” constrain the DHS’s authority after entry. They
argue that “[a]fter a graduate reaches a certain point in his or her
career, continued employment would cease to be ‘reasonably related’
to the educational ‘purposes’ of the F-1 statute, and would no longer
be permitted.” Intervenor Br. 20 (quoting Doe, 1 v. FEC, 920 F.3d
866, 871 (D.C. Cir. 2019)). Where this point may be is undisclosed
but they concede that the educational aspects of the statute—
“student” and “course of study”—are not entry-only requirements.
 13
purpose of pursuing such a course of study” (emphasis added)).
The DHS argues that the “textual focus on the ‘purpose’ for
which one ‘seeks to enter’” makes the third requirement an
“initial requirement of admission,” not a “continuing
requirement.” Appellee Br. 31 (quoting 8 U.S.C.
§ 1101(a)(15)(F)(i)) (alteration accepted). It also argues that
because the Congress did not define “student” or “course of
study,” the legislature left it up to the “DHS ‘to [reasonably]
fill the statutory gap’” and that “the statutory language
naturally lends itself to the reading that a student could be
permitted to work as part of his ‘course of study.’” Appellee
Br. 16 (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 980 (2005)), 30 (quoting 8
U.S.C. § 1101(a)(15)(F)(i)). I cannot join in this tortured
interpretation—what Holmes dubbed “verbicide” 9—of “seeks
to enter” and “student.”

In view of “the language itself, the specific context in
which that language is used, and the broader context of the
statute as a whole,” however, “student” and “course of study”
cannot reasonably be read to include post-completion OPT. See
United States v. Wilson, 290 F.3d 347, 353 (D.C. Cir. 2002)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).
Read in its entirety, the statute places a key limitation on the
“course of study” referenced in both the second and third
requirements; it requires that the course of study be “at an
established college, university . . . or other academic institution
. . . , which institution or place of study shall have agreed to
report to the [Secretary of Homeland Security] the termination
of attendance of each nonimmigrant student.” 8 U.S.C.

9
“Life and language are alike sacred. Homicide and
verbicide—that is, violent treatment of a word with fatal results to its
legitimate meaning, which is its life—are alike forbidden.” OLIVER
WENDELL HOLMES, SR., THE AUTOCRAT OF THE BREAKFAST-
TABLE (1858).
 14
§ 1101(a)(15)(F)(i). Accordingly, because post-completion
OPT occurs after “attendance” “at an academic institution” has
concluded, the definition of “course of study” affirmatively
excludes those who “study” other than at academic institutions
and thus those engaged in post-completion OPT. That leaves
“student” and “seeks to enter” as the only statutory hooks
supporting post-completion OPT.

The district court referenced two definitions of “student”
and determined that “while some definitions of the word
‘student’ require school attendance, most include broader
notions of studying and learning.” Washtech VI, 518 F. Supp.
3d at 467 (cleaned up) (citing Student, MERRIAM-WEBSTER
DICTIONARY ONLINE, www.merriam-
webster.com/dictionary/student and Student, OXFORD ENG.
DICTIONARY, www.oed.com (visited Jan. 10, 2021)) [J.A. 25.].
Granted, “student” in other contexts can have a broader
meaning, cf. Student, WEBSTER’S THIRD INTERNATIONAL
DICTIONARY (2d ed. 1950) (“A person engaged in study; one
devoted to learning; a learner; a scholar; esp., one who attends
a school, or who seeks knowledge from teachers or books”),
but the explicit academic-institution attendance requirement of
a “course of study” in which the student is engaged narrows the
meaning of “student” in the F-1 statute to include only those
who have yet to “terminat[e] [their] attendance” “at an . . .
academic institution,” 8 U.S.C. § 1101(a)(15)(F)(i); see also
Am. Coal Co. v. Fed. Mine Safety & Health Rev. Comm’n, 796
F.3d 18, 25 (D.C. Cir. 2015) (“General-usage dictionaries
cannot invariably control our consideration of statutory
language, especially when the ‘dictionary definition of
. . . isolated words[] does not account for the governing
statutory context.’” (quoting Bloate v. United States, 559 U.S.
196, 205 n.9 (2010)). I am at a loss to see ambiguity in
“student” that would capture post-graduation employment.
 15
As for the “seeks to enter” modifier, see 8 U.S.C.
§ 1101(a)(15)(F)(i) (requiring an F-1 visa holder to be, inter
alia, an “alien . . . who seeks to enter the United States
temporarily and solely for the purpose of pursuing such a
course of study . . . at an established . . . academic institution
. . . , which institution or place of study shall have agreed to
report to the [Secretary of Homeland Security] the termination
of attendance of each nonimmigrant student”), the parties again
diverge on whether this language establishes an ongoing
obligation or an entry-only requirement to attend an academic
institution. I see the third modifier as an ongoing requirement
but under either approach, I fail to see how it transforms the
second requirement into entry-only requirement. See Ala.
Power Co. v. EPA, 40 F.3d 450, 455 (D.C. Cir. 1994)
(“Statutory text is to be interpreted to give consistent and
harmonious effect to each of its provisions.”).

The ongoing nature of the first two requirements
necessarily informs the reading of the third’s “seeks to enter”
language. See 8 U.S.C. § 1101(a)(15)(F)(i) (requiring an F-1
visa holder to be, inter alia, an “alien . . . who seeks to enter
the United States temporarily and solely for the purpose of
pursuing such a course of study . . . at an
established . . . academic institution . . . , which institution or
place of study shall have agreed to report to the [Secretary of
Homeland Security] the termination of attendance of each
nonimmigrant student”). As the DHS reads the statute, the
“seeks to enter” provision provides the DHS plenary authority
to define “student” and “course of study” to allow F-1 visa
holders to stay and work for years beyond their “termination of
attendance” at “an academic institution.” See Appellee Br. 30–
31. As already described, however, “student” and “course of
study” take on specific meanings that the second requirement
extends beyond admission. Far from expanding the DHS’s
authority after admission, the language in the “seeks to enter”
 16
modifier confirms the ongoing limits on F-1 status set by the
first two modifiers. In particular, “temporarily” and “solely for
the purpose of pursuing such a course of study” and the
“attendance” requirement manifest that there are limits to the
duration of stay, to who qualifies as a “student” and to what
counts as a “course of study.” See 8 U.S.C. § 1101(a)(15)(F)(i).
Moreover, even assuming arguendo that the third requirement
is an entry-only requirement, it does not follow that the second
requirement—“is a bona fide student”—is also an entry
requirement. That misreading is belied by the text itself and
would impermissibly rewrite the statute by inserting entry
language where none exists. See La. Pub. Serv. Comm’n v.
FCC, 476 U.S. 355, 376 (1986) (“As we so often admonish,
only Congress can rewrite [a] statute.”). Accordingly, the
second requirement serves as an ongoing constraint on
maintaining F-1 status, even if, again, arguendo, the third is
only an entry requirement.

2.

Reading the “seeks to enter” modifier to transform the F-1
statute into an entry-only requirement is also incompatible with
the structure and text of the INA. First, the F-1 statute details
that a nonimmigrant may enter “solely for the purpose of
pursuing such a course of study . . . at an established
. . . academic institution,” 8 U.S.C. § 1101(a)(15)(F)(i), and the
INA separately requires that all DHS regulations placing
conditions on a nonimmigrant’s admission must, inter alia,
“insure that . . . upon failure to maintain the status under which
he was admitted , . . . such alien will depart from the United
States,” id. § 1184(a)(1). In other words, because the “solely”
requirement is an ongoing part of the nonimmigrant’s “status
under which he was admitted” but the 2016 OPT Rule permits
F-1 visa holders to stay past the completion of their “course of
study,” the DHS exceeded its statutory authority by expanding
 17
F-1 status to include those not “solely . . . pursuing a course of
study” at an academic institution.

Second, interpreting the “seeks to enter” modifier as an
entry-only requirement is inconsistent with its use elsewhere in
the INA. To wit, similar to the “attendance” and the “academic
institution” limitations on “student” and “course of study,” the
“seeks to enter” modifier in the K-1 visa provision, which gives
nonimmigrant status to the fiancé of a U.S. citizen, includes an
ongoing requirement that the fiancé complete the marriage
“within ninety days after admission.” 8 U.S.C.
§ 1101(a)(15)(K)(i); see Birdsong v. Holder, 641 F.3d 957, 958
(8th Cir. 2011) (interpreting “seeks to enter” provision as
ongoing requirement of maintaining status after admission);
see also Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063,
1066 (9th Cir. 2008) (interpreting managerial-capacity
requirement as ongoing requirement notwithstanding “seeks to
enter” modifier in 8 U.S.C. § 1101(a)(15)(L)).

Finally, interpreting “seeks to enter” as an entry
requirement effectively removes any statutory constraint on the
DHS’s authority after admission. Unsurprisingly, the DHS sees
this discretion as a feature, not a bug. But the interpretation
leads to an incongruous result when read in conjunction with
the rest of the INA. See Davis v. Mich. Dep’t of Treasury, 489
U.S. 803, 809 (1989) (“It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.”). For instance, the M-1 visa, which applies to
vocational students, includes the continuing residency modifier
and the “seeks to enter” modifier in language almost identical
to the F-1 statute. See 8 U.S.C. § 1101(a)(15)(M)(i).
Accordingly, if “seeks to enter” provisions apply at admission
only, there is no statutory constraint on who may qualify for an
M-1 visa as long as he continues to “hav[e] a residence in a
 18
foreign country which he has no intention of abandoning.” See
id. Moreover, the DHS interpretation has led to post-
completion OPT rivaling the H-1B visa as the largest highly
skilled guest worker program. Indeed, in 2016, the year in
which the DHS authorized the twenty-four-month STEM
extension, post-completion OPT surpassed the H-1B visa
program as the greatest source of highly skilled guest workers.
Neil G. Ruiz & Abby Budiman, Number of Foreign College
Graduates Staying in U.S. to Work Climbed Again in 2017, but
Growth Has Slowed, PEW RSCH. CTR. (July 25, 2018). This
makes the DHS interpretation even more unlikely given the
long history of statutory caps on the number of H-1B visas. See
8 U.S.C. § 1184(g)(1) (general caps), 1184(g)(5) (creating
exceptions to caps, including separate quota of 20,000 for
nonimmigrants with master’s or higher degree). The DHS’s
assertion of authority in this case creates an exception that
swallows the Congress’s caps. As the Supreme Court has
consistently reminded us, “absurd results are to be avoided and
internal inconsistencies in the statute must be dealt with.”
United States v. Turkette, 452 U.S. 576, 580 (1981) (citations
omitted). The entry-only requirement interpretation
accomplishes neither of these statutory-interpretation goals. 10

10
The district court and DHS rely extensively on legislative
history and the theory of congressional ratification or acquiescence.
See Washtech VI, 518 F. Supp. 3d at 471 n.14; Appellee Br. 4–5, 15–
17. But “[g]iven the straightforward statutory command [described
supra], there is no reason to resort to legislative history,” which in
this case “muddies the waters.” United States v. Gonzales, 520 U.S.
1, 6 (1997). As the DHS stated at oral argument, the “best” piece of
legislative history supporting its notion that the Congress envisioned
post-completion OPT in drafting the F-1 statute is a Senate Report
from 1950 before the INA’s 1952 enactment. See Oral Arg. Tr. 29:1–
7; see also Appellee Br. 34 (citing S. REP. NO. 81-1515, at 503 (1950)
(“[P]ractical training has been authorized for 6 months after
 19
There is no dispute that the DHS, via its 2016 OPT Rule,
believes that it has the authority to allow F-1 students to stay
and work for up to three years after completion of their “course
of study . . . at an established college, university . . . or other
academic institution.” 8 U.S.C. § 1101(a)(15)(F)(i); see, e.g.,
2016 OPT Rule, 81 Fed. Reg. at 13,045 (“[A]n F–1 student in
post-completion OPT does not have to leave the United States
within 60 days after graduation, but instead has authorization
to remain for the entire post-completion OPT period.”), 13,087
(“The 24-month [STEM] extension, when combined with the
12 months of initial post-completion OPT, allows qualifying
STEM students up to 36 months of [OPT].”). Because the F-1

completion of the student’s regular course of study.”)). The Senate
Report, however, conflicts with a contemporary House Report
indicating that legislators assumed those on a student visa were “not
permitted to stay beyond the completion of their studies.” H.R. REP.
NO. 82-1365, at 40 (1952). The district court ignored the danger of
using legislative history as it neglected to consider conflicting
legislative history relied on by Washtech. See Pl. Mot. for Summ. J.
at 3, Washtech VI, 518 F. Supp. 3d 448 (citing H.R. REP. NO. 101-
723, at 66 (1990); S. REP. NO. 96-859, at 7 (1980)).
As for congressional acquiescence, at whichever Chevron stage
it may apply, see Appellee Br. 46–53 (evaluating acquiescence at
Chevron step two); Intervenor Br. 24–41 (using acquiescence at
Chevron step one), it does not apply here. “Where the law is plain,
subsequent reenactment does not constitute an adoption of a previous
administrative construction.” Demarest v. Manspeaker, 498 U.S.
184, 190 (1991); see also Brown v. Gardner, 513 U.S. 115, 122
(1994) (“A regulation’s age is no antidote to clear inconsistency with
a statute . . . .”). Because the DHS’s reading of the F-1 statute
contravenes the statute’s plain meaning, I cannot understand how the
Congress has “agreed with” that reading. See Brown, 513 U.S. at 121
(“[C]ongressional silence lacks persuasive significance, particularly
where administrative regulations are inconsistent with the
controlling statute.” (internal quotation marks and citations
omitted)).
 20
statute is plainly not an entry-only requirement, its constraints
on F-1 nonimmigrant status are ongoing, making the DHS’s
2016 OPT Rule “in excess of [its] statutory . . . authority.” 5
U.S.C. § 706(2)(C). Accordingly, I would reverse the district
court and remand for further consideration, as explained
infra. 11

B. OTHER STATUTORY AUTHORITY

As briefly mentioned by the district court, Washtech VI,
518 F. Supp. 3d at 468–69, Washtech also argues that the
DHS’s separate statutory authority for its action, 8 U.S.C.
§ 1324a(h)(3), is inadequate to uphold the 2016 OPT Rule. See
Appellant Br. 27–32; Appellant Reply Br. 9–14; see also 2016
OPT Rule, 81 Fed. Reg. at 13,044–45 (asserting 8 U.S.C.
§§ 1103, 1184(a)(1) and 1324a(h)(3) as statutory authorities). 12
In particular, Washtech argues that section 1324a(h)(3)’s
definition of “unauthorized alien” confers on the DHS only the
authority to issue work authorizations expressly authorized by
statute, not independent authority to authorize the employment
of any alien. Washtech provides two grounds for its argument.
Washtech first argues that the structure of the INA supports its

11
After oral argument, the Supreme Court decided West
Virginia v. EPA, 142 S. Ct. 2587 (2022). The implication of that
decision is that the major questions inquiry appears to be a threshold
question to Chevron analysis. Because I believe that this dispute may
be a major question, I would either ask for supplemental briefing to
us or direct the district court on remand to treat the applicability of
West Virginia to the 2016 OPT Rule.
12
Recall that it is unlawful to employ “an unauthorized alien,”
as defined by section 1324a(h)(3). 8 U.S.C. § 1324a(a)(1)(A).
Section 1324a(h)(3) in turn states that an alien is not “unauthorized”
to work if “lawfully admitted for permanent residence, or
. . . authorized to be so employed by this chapter or by the [Secretary
of Homeland Security].”
 21
interpretation of section 1324a(h)(3) and that the Congress
would not have delegated the elephant-sized “co-equal power
to authorize alien employment” through a mousehole-sized
definitional provision. Appellant Br. 29–30 (citing, inter alia,
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
160 (2000)). Second, Washtech argues that the DHS’s section
1324a(h)(3) interpretation, which would purportedly allow the
DHS to authorize employment for any alien class, violates the
nondelegation doctrine. Id. at 30–31.

For its part, the DHS asserts almost in passing that section
1324a(h)(3)’s language— “authorized to be so employed by
this chapter or by the [Secretary of Homeland Security]”—
plainly confers on DHS the authority to authorize employment,
unless a statute “expressly prohibit[s]” such authorization.
Appellee Br. 17, 49–50. Expanding on the DHS’s argument,
the intervenors argue that the INA’s general delegation of
authority—to “establish such regulations . . . and perform such
other acts as [the Secretary] deems necessary for carrying out
his authority under the [INA],” 8 U.S.C. § 1103(a)(3), and to
promulgate regulations establishing the “conditions” of
admission for nonimmigrants, id. § 1184(a)(1)—includes work
authorization. Intervenor Br. 43–45. They also argue that with
the enactment of the IRCA, the Congress ratified the DHS’s
broad authority to authorize employment for any alien. Id. at
45–52.

I would not reach the merits of this dispute. Neither the
district court, nor any of the parties, explained how a post-
completion OPT program based on section 1324a(h)(3) only—
independent of the F-1 statute and F-1 status—would operate.
The district court’s brief analysis of section 1324a(h)(3)
assumed that the F-1 statute provided adequate statutory
authority and thus did not address whether section 1324a(h)(3)
independently provides sufficient statutory authorization for
 22
post-completion OPT. See Washtech VI, 518 F. Supp. 3d at
468–69 (“[T]he [2016 OPT Rule] only grants work
authorization to nonimmigrant foreign nationals who are
already legally present in the United States under the F-1
student visa program.”).

Accordingly, in assessing section 1324a(h)(3) authority, I
would instruct the district court to decide whether F-1 status is
severable from the post-completion OPT program. Severability
requires examining whether there is “‘substantial doubt’ that
the agency would have adopted the severed portion [of an
agency action] on its own,” Davis Cnty. Solid Waste Mgmt. v.
EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997) (per curiam)
(citations omitted), and whether the non-offending “part[] of
the agency action can ‘function sensibly without the stricken
provision,’” Nasdaq Stock Mkt. LLC v. SEC, 38 F.4th 1126,
1144 (D.C. Cir. 2022) (quoting Carlson v. Postal Regul.
Comm’n, 938 F.3d 337, 351 (D.C. Cir. 2019)). I believe
“substantial doubt” exists as to whether the DHS could have
adopted post-completion OPT if the participant aliens lacked
F-1 status, see Davis Cnty. Solid Waste Mgmt., 108 F.3d at
1459, because the entire premise of post-completion OPT is
that the “workers” are “students,” see, e.g., 2016 OPT Rule, 81
Fed. Reg. at 13,117 (stating that “a qualified [STEM] student
may apply for an extension of OPT while in a valid period of
post-completion OPT authorized under 8 C.F.R.
274a.12(c)(3)(i)(B),” which in turn authorizes employment of
a “nonimmigrant (F–1) student” (emphasis added)); id. at
13,040 (describing in “Purpose of the Regulatory Action” that
“[t]his final rule affects certain F–1 nonimmigrant students
who seek to obtain an extension of [OPT] based on study at a
U.S. institution of higher education in a [STEM] field, as well
as certain F–1 nonimmigrant students who seek so-called Cap-
Gap relief”).
 23
Moreover, far from “function[ing] sensibly,” the post-
completion OPT program would not function at all if the
participants lacked F-1 status. See Carlson, 938 F.3d at 351.
The 2016 OPT Rule includes that “[a] student who violates his
or her F–1 status during the STEM OPT extension period
. . . will not be able to continue working during the pendency
of [a] reinstatement application; such employment would be
considered unlawful.” 81 Fed. Reg. at 13,099. If it is unlawful
to work without F-1 status, it is hard to see how anyone
applying for a twenty-four-month STEM extension without F-
1 status could receive authorization. Further, DHS regulations
set out three classes of aliens authorized to obtain employment:
(a) “Aliens authorized employment incident to status”;
(b) “Aliens authorized for employment with a specific
employer incident to status or parole”; and (c) “Aliens who
must apply for employment authorization.” 8 C.F.R. § 274a.12.
In those regulations, the only mentions of post-completion
OPT appear under subsections for “nonimmigrant (F–1)
student[s].” See 8 C.F.R. § 274a.12(b)(6), (c)(3). Even on its
own terms, therefore, the DHS could not grant work
authorization to OPT participants sans F-1 status unless it
amends its employment classifications—an agency action not
before us. See MD/DC/DE Broads. Ass’n v. FCC, 236 F.3d 13,
23 (D.C. Cir. 2001) (holding “entire rule must be vacated”
because severing only unlawful aspects “would severely distort
the [agency’s] program and produce a rule strikingly different
from any the [agency] had ever considered or promulgated in
the lengthy course of these proceedings”).

On remand, the district court should also treat the effect of
West Virginia v. EPA, 142 S. Ct. 2587 (2022), on the section
1324a(h)(3) analysis. See supra note 11. In that decision, the
Supreme Court determined that a certain section of the Clean
Air Act did not give the EPA the authority to require, by
regulation, energy generators to shift from higher- to lower-
 24
emitting generation. West Virginia, 142 S. Ct. at 2616. Relying
on “[1] the ‘history and the breadth of the authority that [the
EPA] ha[d] asserted[;]’ . . . [2] the ‘economic and political
significance’ of that assertion,” id. at 2608 (quoting Brown &
Williamson, 529 U.S. at 159–60); and [3] the principle that
“[e]xtraordinary grants of regulatory authority are rarely
accomplished through ‘modest words,’ ‘vague terms,’ or
‘subtle device[s],” id. at 2609 (alteration in original) (quoting
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)),
the Court held that the case was a “major questions case,” id.
at 2610, and required the government to “point to ‘clear
congressional authorization’” of the regulatory action, id. at
2614 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324
(2014)). Because the relevant section of the Clean Air Act did
not “clear[ly] delegat[e]” to the EPA the authority to force
generation shifting, id. at 2616, the Court determined that the
EPA lacked the statutory authority to issue the generation-
shifting regulation, id. at 2615–16. As in West Virginia, section
1324a(h)(3), a definitional provision, may well be too “subtle
[a] device” and a “‘wafer-thin reed’ on which to rest” post-
completion OPT, 142 S. Ct. at 2608–09 (quotation omitted),
which, in 2016, surpassed the H-1B program as the largest
highly skilled guest worker program, Ruiz & Budiman, supra.
Moreover, as to breadth, the twenty-four-month STEM
extension triples the amount of time that STEM F-1 graduates
may stay in the country—an alarming expansion of DHS
authority under the F-1 statute. Like the EPA’s asserted
authority in West Virginia, see 142 S. Ct. at 2612, the limit of
the DHS’s asserted authority is unclear; if the DHS’s authority
to authorize employment is as broad as the intervenors suggest,
the DHS could extend post-graduate OPT beyond sixty
months, which would be greater than the statutory limit for H-
1B visa holders.

For the foregoing reasons, I respectfully dissent.