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The Clear Path to Ending OPT

End OPT Now: A Post-Loper Bright, Textualist Opportunity for the President

In recent weeks, the immigration conversation has sharpened around a long-overdue reform: Rep. Glenn Grothman’s OPT Fair Tax Act, which aims to close a payroll tax loophole that gives employers a financial incentive to hire foreign students on Optional Practical Training (OPT) over American graduates. Ken Cuccinelli rightly called it “so long overdue,” while noting the deeper issue—OPT itself lacks a solid congressional foundation and displaces American workers by the tens of thousands. As someone who has been writing extensively about AI’s transformative impact on the economy, I see this not as a narrow immigration dispute but as a critical labor market decision in the age of rapid technological change.

The President should direct the Department of Homeland Security to end post-completion OPT through executive action and rulemaking—and confidently dare any challengers to sue. The legal landscape, reshaped by Loper Bright Enterprises v. Raimondo (2024) and reinforced by Justice Amy Coney Barrett’s recent textualist opinion in Montgomery v. Caribe Transport II (2026), has never been more favorable for restoring statutory limits on executive-created immigration programs.

The Problem with OPT

Optional Practical Training is a regulatory creation with no explicit statutory basis in the Immigration and Nationality Act. It allows roughly 330,000 foreign graduates each year—many in STEM fields—to work in the United States for up to three years under the F-1 student visa category. Recent ICE actions have uncovered over 10,000 suspected “phantom workers” exploiting the system, and the payroll tax exemption makes OPT hires materially cheaper than American graduates.

In the context of my recent pieces on AI, this matters profoundly. Artificial intelligence is automating routine tasks, intensifying competition for high-skill entry-level roles in tech, engineering, and data science. American graduates, many carrying student debt, deserve first access to these opportunities. Continuing a regulatory program that subsidizes foreign labor at the expense of domestic talent is not just outdated policy—it actively undermines our ability to build and retain the human capital needed to lead in an AI-driven world.

Legal Foundation for Ending OPT

OPT rests entirely on DHS regulations interpreting INA § 214(a), which authorizes the Secretary to prescribe the “time and conditions” for nonimmigrant admission. The statute, however, defines F-1 status around bona fide students “pursuing a full course of study.” Post-graduation employment—especially multi-year extensions—stretches that language beyond recognition. Practical training disconnected from active study is not incidental; it is a separate work authorization program invented by agency rulemaking.

For decades, this survived judicial review primarily because of Chevron deference, under which courts deferred to “reasonable” agency interpretations of ambiguous statutes. That shield is now gone.

How Loper Bright Changes the Game

Loper Bright overruled Chevron, requiring courts to exercise independent judgment on the meaning of statutes. No longer can agencies claim broad implied powers simply because a provision is less than crystal clear. Judges must determine the best reading of the law, giving appropriate respect to agency expertise but not blind deference.

This directly weakens prior decisions like the D.C. Circuit’s 2022 Washington Alliance of Technology Workers v. DHS ruling, which upheld OPT under the old deference regime. Post-Loper Bright, challengers and defenders alike must argue from the statutory text itself. The best reading of “pursuing a full course of study” does not naturally encompass years of post-graduation employment in the private sector. A President directing DHS to rescind these regulations would be correcting executive overreach, not inventing new policy.

Justice Barrett’s Textualism in Caribe II

This brings us to Justice Barrett’s unanimous opinion in Montgomery v. Caribe Transport II, decided just days ago on May 14, 2026. In interpreting the Federal Aviation Administration Authorization Act’s preemption provisions and its safety exception (“with respect to motor vehicles”), Barrett applied a disciplined textualist approach. She focused on ordinary meaning—“concerns” or “regards”—examined statutory context and structure, and refused to rewrite the law to avoid perceived anomalies or surplusage. As she noted, it is better to “live with the mystery” than to stretch or rewrite clear statutory text.

This methodology is devastating to any defense of OPT. Challengers to a rescission would need to convince courts that Congress implicitly authorized expansive post-study work programs through vague “time and conditions” language. Under Barrett’s framework, that argument faces an uphill battle. The plain text centers on students actively pursuing education, not graduates working full-time for private employers. Implied powers of this magnitude, especially in immigration where Congress has legislated extensively, do not survive rigorous textual scrutiny.

Strategic Recommendation: Executive Action + “Dare to Sue”

The path forward is straightforward. The President should issue an Executive Order directing DHS to undertake a review and initiate APA rulemaking to eliminate post-completion OPT (and the STEM extension). Additional tools include stricter enforcement priorities, enhanced fraud detection in SEVIS, and tighter interpretations of the “directly related” requirement for any remaining practical training.

This is not radical. It restores the statutory status quo that existed before agency expansion. Current participants could receive orderly wind-down periods. The administration should document the record thoroughly—citing displacement studies, fraud cases, and the tax incentive distortions—to insulate the rule from arbitrary-and-capricious challenges.

Critics will threaten lawsuits from universities, tech lobbies, and foreign students. Let them sue. In the post-Loper Bright era, with a Supreme Court increasingly committed to textualism as demonstrated in Caribe II, the government’s position is stronger than at any point in decades. Reliance interests and policy arguments about “talent shortages” carry far less weight when the statute does not support the program.

Counterarguments about innovation and shortages deserve examination, but data on American STEM underemployment, combined with AI’s productivity gains, suggest we can meet demand through domestic talent and targeted legal immigration reforms. Ending OPT levels the playing field without closing the door to high-skilled workers who follow the proper statutory pathways.

Broader Implications and Conclusion

This is not merely an immigration enforcement issue. In the AI era, every policy decision must strengthen America’s innovation base. Prioritizing American graduates for entry-level opportunities in critical fields is essential if we want to lead rather than follow in technological competition. Smart immigration policy complements technological progress by ensuring our own people capture the gains.

The administration has both the authority and the strengthened legal foundation to act. The OPT Fair Tax Act is a welcome incremental step, but it does not address the root problem. Ending the regulatory OPT pipeline outright would send a clear signal: executive power has limits, statutes mean what they say, and American workers come first in the labor market of the future.

The time is now. The legal environment has shifted decisively. The President should seize this opportunity—and dare the challengers to test it in court.

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James K. Bishop

James K. Bishop is a conservative writer and raconteur hailing from Texas, known for his incisive and often provocative takes on political and cultural issues. With a staunch commitment to originalist constitutional principles, he emphasizes limited government, individual liberties, and traditional American values. Active on X under the handle @James_K_Bishop, he frequently engages his audience with sharp critiques of progressive policies, media narratives, and overreaches by the federal government. His style is direct, often laced with humor and wit, which resonates strongly with his conservative followers.