DHS Renews Effort to Abuse Optional Practical Training Program to Circumvent Caps on Guest Workers, Charges FAIR
This is nothing more than a naked attempt to satisfy the demands of powerful business interests to circumvent mandated limits on the admission of foreign STEM workers designed to protect American workers.
-Dan Stein, President of FAIR
(October 19, 2015 — Washington, D.C.) – In August, a federal judge ruled that the Department of Homeland Security’s efforts to allow F-1 visa holders to work in the United States for up to 29 months after completing degrees in STEM fields failed to comply with the Administrative Procedures Act (APA) and gave the department until February to issue a new rule. Judge Ellen Huvelle issued that ruling in a suit brought by Washtech, an affiliate of the International Brotherhood of Electrical Workers. Washtech is represented by the Immigration Reform Law Institute (IRLI), a public interest law firm associated with the Federation for American Immigration Reform (FAIR).
Judge Huvelle struck down a DHS rule expanding employment eligibility under the Optional Practical Training (OPT) program from 12 months to 29 months because it bypassed the APA mandated public notice and comment. Equally significant, the court rejected DHS’s assertion that American workers do not have standing to sue when the government implements a rule that increases the potential for more competition in their job market.
DHS is now attempting to promulgate a new rule that could extend OPT eligibility up to 36 months after graduation, adding to the potential injury to American workers seeking STEM jobs. Moreover, the proposed rule offers the public only 30 days to comment whereas longer periods of time are usually afforded to controversial and complex issues.
“DHS has published a rule for notice and public comment that will harm American workers. They have affirmed their disdain for American workers,” charged Dan Stein, president of FAIR. “Not only will these aliens compete with Americans for jobs, employers have tax incentives for hiring them because they will not be required to make Social Security contributions for them.”
“The latest DHS rule is also a blatant attempt to expand the definition of ‘student’ beyond all reasonable bounds in order to allow foreign STEM degree holders to fill jobs in the U.S.,” said Stein. “According to DHS’s own eligibility requirements, F-1 visa holders ‘must be enrolled as a full-time student at [an accredited] institution.’ Under the proposed OPT rule, people who have long completed their degrees would still be considered students.
“This is nothing more than a naked attempt to satisfy the demands of powerful business interests to circumvent mandated limits on the admission of foreign STEM workers designed to protect American workers,” Stein said. “The intent of the student visa program is to allow foreign students to train at American universities with the intent of returning to their home countries to pursue their careers. The plan to vastly expand the OPT program undermines the whole premise of the F-1 visa and impedes the ability of American graduates to pursue their careers in their chosen fields.”
IRLI is appealing the portion of Judge Huvelle’s ruling that gives DHS unduly broad latitude to define who is a ‘student.’ In addition, IRLI is renewing its argument that the OPT program as a whole exceeds DHS’s statutory authority.