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IMMIGRATION MARCH 15, 2024 | The Indian Eye 42

How Corner Post Along with the Demise of

Chevron Deference Can Open Up Immigration

Regulations to Challenges

CYRUS MEHTA aggrieved” rather from when the Post would open the door to “the statutory definition of the 101(a)(15)(F)(i) by asserting
agency issues a rule. The Board many challenges to government F-1 visa class precludes the Sec- that “OPT’s nexus to an F-1 stu-
n February 20, 2024, the of Governors of the Federal regulations even beyond the six retary from exercising the time- dent’s course of study, together
Supreme Court heard Reserve issued Regulation II in year date from when they were and conditions authority to allow with the student’s application to
Ooral argument in Corner 2011, which capped the inter- issued. Moreover, on January 17, F-1 students to remain for school the school for approval and the
Post, Inc. v. Board of Governors change fees paid on debit-card 2024, the Supreme Court also recommended practical training school’s reporting responsibili-
of the Federal Reserve System. transactions. The North Dakota heard oral argument on January after they complete their course- ties to DHS, ensure that the addi-
This case could potentially ex- Retail Association and others 17, 2024 in Relentless, Inc. v. work”. Wash Tech read INA § tional time and practical training
pand the six year statute of limita- challenged this regulation under Department of Commerce and 101(a)(15)(F)(i) as authorizing opportunities available through
tions to challenge a regulation un- the APA. The Board moved to Loper Bright Enterprises v. Rai- DHS to allow F-1 students to re- the program help F-1 students to
der the Administrative Procedure dismiss arguing that the statute mondo whether to eliminate or main in the U.S. only until they cement the knowledge acquired
Act (APA). § 702 of the APA pro- of limitations had run out. They restrict the deference that courts have completed their course of in their coursework consistent
vides that “]a] person suffering added Corner Post, which was give to an agency’s interpretation study, as the provision does not with legal limits.”
legal wrong because of an agency incorporated in 2017 and began of an ambiguous statute under specifically mention post-grad- If the Supreme Court in
action, or adversely affected or operating in 2018. The Board Chevron U.S.A., Inc. v. Natural uation practical training. The Loper Bright and Relentless
aggrieved by agency action” may again moved to dismiss, and the Resources Defense Council, 467 court affirmed a district court eliminate Chevron deference,
seek judicial review. § 2401(a) of district court granted the motion U.S. 837 (1984). This is known judgment that upheld DHS’ and if Corner Post broadens the
the United States Code gener- holding that the statute of limita- as Chevron deference, which has current OPT rules. The court six year statute of limitations,
ally requires that the complaint tions under Section 702 began insulated the government from reasoned that the STEM OPT a different plaintiff can again
to commence such an action running when Regulation II was challenges to its interpretation extension is a valid exercise of challenge the OPT rule all over
must be “filed within six-years published in 2011. The Eight of a statutory provision. DHS’ authority under in INA again. The rule may most likely
after the right of action accrues.” Circuit affirmed rejecting the One can see how the evis- § 214(a)(1) to promulgate reg- withstand attack because it is not
In Corner Post, the plaintiffs argument that the six year stat- ceration of Chevron deference ulations that authorize an F-1 entirely based on Chevron def-
asserted that the six year statute ute of limitations began running in Loper Bright and Relentless, student’s stay in the U.S. beyond erence as it was also upheld un-
of limitations under the APA first only when Corner Post opened along with Corner Post relaxing graduation. The court further der Lorillard v. Pons. So even if
begins to accrue when the plain- in 2018. Corner Post sought the six year deadline for APA noted that “practical training not Chevron deference is eliminated,
tiff has suffered a “legal wrong” review by the Supreme Court. challenges, can result in chal- only enhances the educational under the doctrine established in
or been “adversely affected or If plaintiffs prevail, Corner lenges to immigration regula- worth of a degree program, but Lorillard it can be presumed that
tions even though they were often is essential to students’ Congress was aware of the gov-
promulgated more than six ability to correctly use what they ernment’s interpretation of F-1
years ago. For instance, in have learned when they return status as encompassing practical
Wash Tech v. DHS the F-1 to their home countries. That training each time it has amend-
Optional Practical Training is especially so in STEM fields, ed the INA. It can also be argued
(OPT) and STEM OPT where hands-on work is critical that the DC Circuit’s reliance on
rule promulgate in 2016 for understanding fast-moving Chevron was either an alternate
were both upheld by the technological and scientific de- holding or dicta. The following
First Circuit under Chev- velopments.” Judge Pillard, who extract from the decision indi-
ron deference. If Corner authored the opinion, noted that cates that the DC Circuit relied
Post broadens the six year the concept of post-coursework on the plain meaning of INA
limitation to challenge a practical training for foreign 214(a)(1); 8 USC 1184(a)(1)
rule, and if Chevron defer- students predates the Immigra- rather than paying Chevron def-
ence is eliminated, plain- tion and Nationality Act of 1952, erence to the DHS’s interpreta-
tiffs who claim they were pointing to a 1947 rule which “al- tion of those provisions:
aggrieved because they may lowed foreign students ‘admitted The 2016 Rule is within
have lost their job to an F-1 temporarily to the United States DHS’s statutory authority. Sec-
nonimmigrant under the . . . for the purpose of pursuing tion 1184(a)(1)’s time-and-con-
OPT rule, can again try to a definite course of study’ to ditions provision is the source of
challenge the rule even remain here for up to eighteen that authority, and the F-1 visa
though more than 6 years months following completion of class definition guides its use.
have passed. coursework for ‘employment for Because the 2016 Rule regulates
As background, the practical training’ as required or the “time” and “conditions” of
Washington Alliance of recommended by their school”. admission for F-1 visa-holders,
Technology Workers (Wash Under Lorillard v. Pons, 434 and because it is reasonably re-
Tech) challenged the Op- U.S. 575, 580 (1978), Congress lated to the distinct composition
m of tional Practical Training is presumed to be aware of an and purpose of that visa class, as
CYRUS D. MEHTA & PARTNERS PLLC (OPT) and the STEM Op- administrative interpretation of defined in the F-1 provision, the
tional Practical Training
a statute and to adopt that in-
Secretary had authority to pro-
(OPT). DHS allows eligible terpretation when it reenacts its mulgate it.

students in STEM fields an statutes without change. Practi- 50 F.4th at 177.
additional 24 month OPT cal training has been authorized

  extension beyond the usual even prior to the enactment of The most straightforward
   
­ 12 month OPT period. The the INA in 1952. In previous reading of the INA is that it au-
€
‚   2016 Rule restarted the blogs, we have discussed Con- thorizes DHS to apply to admit-
clock to challenge the stat- gressional authority for OPT at ted F-1 students the additional
“time” and “conditions” that en-
utory authority for the OPT length, see here, here, here, and able them to remain here while
here.
program as a whole along
with the new, STEM-specif- In addition, the court paid participating in OPT recom-
2 6th Floor ic extension. deference under Chevron to mended and overseen by their

    Wash Tech argued that the agency’s interpretation of respective academic institutions.
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