DHS’s OPT Rule: Contempt for Congress, for American Workers, and for American Students
Why SCOTUS should hear the challenge to the 'Optional Practical Training' program
By George Fishman and Julie Axelrod on June 12, 2023
Summary
In 1990, Congress set a 65,000 numerical cap for H-1B temporary foreign “specialty occupation” workers (largely encompassing workers in “STEM” occupations).
Beginning in 1998, the H-1B cap began to be hit on a regular basis. Congress responded by twice raising the cap, but only temporarily, after which it returned to 65,000. The House Judiciary Committee explained that the increase “should be of relatively brief duration” because American college “students have been enticed” by “brightening opportunities in this boom or bust profession” and “Congress should not imperil the[ir] future careers ... by expanding the H-1B quota indefinitely”.
At a D.C. dinner party in 2007, a Microsoft lobbyist asked DHS Secretary Michael Chertoff to issue a regulation (without notice and comment from the public) extending the time period under which foreign students could work for employers in the U.S. under the Optional Practical Training program after completing the coursework for their degrees, explaining that in light of the H-1B program’s “severely insufficient base annual cap”, “Microsoft ... must have access to the talent it needs” and “the Administration ... can take a simple, immediate step to help address this crisis: extend ... the period that students can work ... for OPT.”
The Washington Alliance of Technology Workers (“Wash Tech”) alleges that “DHS [then] worked in secret with industry lobbyists to craft regulations implementing Microsoft’s scheme” and “[j]ust as Microsoft requested, DHS published the resulting 2008 OPT rule as an interim rule without notice and comment”.
DHS’s 2008 rule extended OPT for STEM students for 17 months. DHS brazenly, unapologetically, contemptuously, and openly acted to subvert Congress’ objective of protecting American college students, stating that because Congress “has prohibited [DHS] from granting H-1B status to more than 65,000”, “[t]he inability of U.S. employers ... to obtain [such] status for highly skilled foreign students ... has adversely affected the[ir] ability ... to recruit and retain skilled workers”, that “the United States must be successful in the increasing international competition” for these workers, and “the oversubscription of the H-1B program makes [it] an uncertain prospect”, and that consequently the rule “will help ease this difficulty by adding an estimated 12,000 OPT students to the STEM-related workforce”.
After a federal district court vacated the 2008 rule for failure to provide notice and an opportunity for the public to comment in a lawsuit brought by Wash Tech, DHS issued a final regulation in 2016 extending STEM OPT for 24 months.
In 2022, the D.C. Circuit Court of Appeals upheld DHS’s new rule, finding it not to be arbitrary and capricious or unlawful. Wash Tech filed a petition for writ of certiorari with the U.S. Supreme Court last month, asking the nation’s highest court to review the case.
The Center for Immigration Studies has filed an amicus curiae brief asking the Supreme Court to grant Wash Tech’s petition for writ of certiorari and review the D.C. Circuit’s appalling decision. While the Supreme Court only grants certiorari to a tiny percentage of the petitioners that seek review, the Center for Immigration Studies believes that the Wash Tech decision presents a particularly strong case for certiorari. The government apparently agrees, as it plans to respond to the petition in July before the Supreme Court — a right it often waives when it does not feel threatened.
https://cis.org/Fishman/DHSs-OPT-Rule-Contempt-Congress-American-Workers-and-American-Students
