CPT Lawsuit: DHS Defends F-1 Internship Broadcasts

The CPT lawsuit over F-1 student internships was set for its first hearing this week, and the government’s defense is now on the record: the Department of Homeland Security says the two August messages that narrowed Curricular Practical Training are not a rule at all. In an Oct. 28 brief, DHS told the federal court in Boston that the Student and Exchange Visitor Program broadcasts “merely clarify” existing requirements, that schools “can continue to authorize CPT,” and that the four higher-education groups suing have no standing because no enforcement action has occurred. Judge Julia E. Kobick scheduled a hearing on the groups’ request to suspend the messages for Nov. 6; no ruling had been reported as of Nov. 7.

The timing matters. Spring and summer placements are being arranged now, and many schools have stopped approving elective, for-credit internships until they know whether the government’s new reading will hold.

What the CPT lawsuit is about

The case, Association of American Universities v. U.S. Department of Homeland Security, No. 1:26-cv-14520 (D. Mass.), was filed Oct. 5 by AAU, NAFSA: Association of International Educators, the Presidents’ Alliance on Higher Education and Immigration and the Association of Independent Colleges and Universities in Massachusetts. It targets Broadcast Message 2608-01 (Aug. 12) and Broadcast Message 2608-02 (Aug. 24), which told designated school officials that CPT is available only when the training is required of every student in the program. Under that reading, an elective internship taken for academic credit no longer qualifies, even though the regulation, 8 C.F.R. 214.2(f)(10)(i), has not changed. According to the complaint, the messages warned that noncompliant authorizations could cost a school its SEVP certification.

The groups want the broadcasts stayed under 5 U.S.C. 705, arguing they reverse decades of practice, apply retroactively and are a new rule issued without notice and comment. (Earlier coverage: the lawsuit’s filing and the two broadcasts.)

DHS’s defense: no rule, no injury, nothing to review

The government leads with standing, which it calls its argument “first and foremost.” Its core claim is that nothing has legally changed. Both broadcasts carry a disclaimer that the message is not “itself a rule or a final action by SEVP,” and the brief argues that under Bennett v. Spear guidance that does not alter the legal regime cannot be challenged under the Administrative Procedure Act. On the merits, DHS says the messages restate what “integral part of an established curriculum” already required and are a clarification, not a change in position. It distinguishes Presidents’ Alliance v. Noem, an earlier Boston ruling that treated an SEVP broadcast on SEVIS terminations as reviewable, because that message announced definitive termination grounds.

The tension in that position is the gap between what the government says in court and what schools are doing on campus. The complaint says more than a dozen member universities have already narrowed CPT approvals because officials read the certification warning as binding. DHS’s answer is that those were the schools’ own choices. If the court accepts that framing, the effect could cut both ways: the government would avoid review, but a finding that the broadcasts bind no one would give school officials room to resume approving elective CPT until DHS acts through rulemaking or enforcement.

What it means for F-1 students now

The litigation does not change any authorization by itself. CPT is approved by the designated school official and recorded on the student’s Form I-20, so whether an elective placement goes ahead this spring depends on each school’s policy. Students whose CPT has already been authorized should keep the I-20 entry, the course registration and a record of how the training fits the curriculum, because the complaint’s sharpest allegation is retroactive scrutiny of past CPT when students later apply for H-1B status or a green card.

CPT is not a niche benefit. ICE’s 2024 SEVIS by the Numbers report counted 130,586 F-1 and M-1 students with CPT authorizations in calendar year 2024, against 1,582,808 active student records, a little over 8 percent based on ICE’s figures. Pre-completion Optional Practical Training is the usual fallback, but it requires an EAD from USCIS and draws down the 12 months available after graduation, and the program faces its own pressure from DHS’s proposal to charge schools $70,000 for a first OPT authorization.

Judge Kobick’s ruling on preliminary relief comes next. A stay would restore the pre-August practice nationwide while the case proceeds, and the losing side could seek review in the First Circuit. A ruling for the government on finality or standing would leave the broadcasts in place but would not settle whether their reading of the regulation is correct, and that question would likely return the first time SEVP acts against a school or a student.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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