White House slammed for foreign student visa program as GOP lawmakers push Supreme Court to step in

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FIRST ON FOX – More than two dozen Republican lawmakers have weighed in urging the Supreme Court to take up an immigrant-visa case in its next term that would have implications for reining in executive branch overreach. 

The case involves a group of tech workers challenging the existence of a student visa work program created by a federal rule from the Department of Homeland Security (DHS) that circumvents congressional oversight – which is required to invent such programs.

The Optional Practical Training (OPT) program has become the largest single guest worker program in the country, and was created entirely via regulation. 

OPT allows foreign students on F-1 visas to work for up to three years after they graduate. Foreign nations in the OPT program are exempted from payroll taxes, effectively giving employers an 8% cost advantage to hiring them over American workers.

The Immigration and Nationality Act (INA) includes no reference to postgraduate employment for F-1s and unambiguously states that the alien’s sole purpose in the United States is to pursue a course of study.

Homeland Security's Optional Practical Training program has become the largest single guest worker program in the country, and was created through regulation. (Celal Gunes/Anadolu Agency via Getty Images)

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Despite that, last year a D.C. Circuit Court panel found that the F-1 definition speaks only to the admission of aliens into the United States and is silent as to conditions of stay. In effect, the court said that as long as the executive branch follows the law when first admitting an alien, it can then create whatever rules it wants to apply to the alien once in the U.S.

The tech group is now appealing to the Supreme Court to have that decision overturned, and has 31 Republican lawmakers on their side. 

Rep. Brian Babin, co-chair of the House Border Security Caucus and signatory on the amicus brief. (Bill Clark/CQ-Roll Call, Inc via Getty Images)

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"Congress has authority over immigration law – NOT unelected bureaucrats," Rep. Brian Babin, R- Texas, co-chair of the House Border Security Caucus and signatory on the amicus brief, told Fox News Digital. 

"My colleagues and I are hopeful the Supreme Court will overturn the D.C. Circuit Court’s ruling and combat executive branch efforts to liberalize and manipulate immigration law without congressional authorization. This sets a dangerous precedent that cannot be ignored," he said. 

The Supreme Court on April 21, 2023, in Washington. (AP Photo/Alex Brandon, File)

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The lawmakers said in their brief that the D.C. Circuit's decision "has far-reaching consequences for the legislative branch beyond immigration law."  

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"The majority opinion creates a dangerous precedent whereby any congressional action is ripe for executive overreach and can be simply ignored. Where executive branch policy considerations are able to override the valid exercise of legislative functions, the separate yet equal branches of government are no longer equal," the brief states. 

The case is Washington Alliance of Technology Workers vs. Dept. of Homeland Security. The high court could decide whether to take up the case as soon as this summer.