Date: Fri, 6 Jun 2008 00:55:35 -0700 From: Norm Matloff To: Norm Matloff Subject: lawsuit filed against OPT extension To: H-1B/L-1/offshoring e-newsletter Before this year, even many critics of the H-1B program were unaware of a program that plays a key role in the hiring of H-1Bs from the pools of foreign students studying at U.S. universities, called Optional Practical Training (OPT). Now DHS' decision to extend OPT, done by administrative fiat rather than legislative action, has triggered a lawsuit by groups that wish to see the H-1B program reduced in scope. In order to understand the lawsuit, it's important to be aware of the goal of OPT, a goal that is reflected in the law and regulations. In this light, the validity of the lawsuit is very clear, I believe, as you'll see. The F-1 visa program was established to "educate the world," especially the impoverished countries of the world. OPT was intended to supplement a foreign student's book learning with some practical experience to take back home. OPT allows the student to work for some U.S. employer for one year. Up until at least the mid-1990s, the graduate student faculty adviser in the student's department had the responsibility of writing a letter in support of the student's request to the INS for OPT status. The professor would affirm that the job the student was about to take would provide the student with practical experience which would be valuable to the student when he returned to his home country. The experience had to be of a nature not readily available back home. I wrote such letters for many students (though I added that this would be useful only if the student really did return home; more on this below). Later the responsibility was moved from professors to university foreign student advisers. I'm not sure why, but in this business most actions have sinister reasons. My guess is that the INS found too many professors writing something like what I did, stating that to our knowledge the student wasn't going home anyway--which of course contravened the supposed goal of OPT. Whatever the INS did, the facts remain that (a) the F-1 student visa requires the student to state up front that he will return home and (b) OPT is intended as training for work in his home country. Note for instance this statement on the Web page of the International Office at Dartmouth (http://www.dartmouth.edu/~intl/updates/f1/optional.html): # If you have applied for post-completion OPT (i.e. for OPT after # graduation), it is not recommended that you travel outside the U.S. # until you receive the actual EAD [Employment Authorization Document] # card. If you do, you could be denied re-entry to the U.S. However, if # you must travel, in order to ensure re-entry to the U.S., you should # have...[lists various documents]. Immigration or Consular Officers can # ask you to prove non-immigrant intent, and though this is not commonly # used as a reason to deny entry under OPT, it is possible. To be safe, # you should have some evidence that you plan to return to your home # country after you complete your OPT, such as a job offer in your home # country, evidence of strong family ties there, or property ownership, # etc. See also this one at Oklahoma State University (see http://union.okstate.edu/iss/EmploymentTax/OPT.htm): # Practical training allows international students to accept paid work in # the U.S. Practical training should allow them to gain experience in # their field of study, which they normally could not obtain in their home # country. Yet in practice OPT has devolved to a means to stay in a holding pattern until the student's employer can get an H-1B visa for him. As you can see from the information above, this is quite counter to what OPT is supposed to be about. At any rate, this holding pattern used to be necessary for just a couple of months, but in the last few years the H-1B program has been oversubscribed, with the result that a student could exhaust his 12-month OPT time and thus lose his legal right to work in the U.S. So, under pressure from the industry lobbyists--and remember, this includes the American Immigration Lawyers Association--the DHS approved extending OPT from 12 months to 29 months for students in the STEM areas. The DHS took this action under an obscure law that says that in "emergency" situations, an administrative agency can, in effect, make its own laws. But it's pretty hard to see what the "emergency" is in this case. If the purpose of OPT is really to make foreign students more effective when they return home, the "emergency" would have to be in their home countries. Well, which countries does DHS have in mind, and what emergencies do they have? Of course, this is silly; the only "emergency" is the urgent need for both major political parties to get campaign donations from the industry lobbyists in this election year. The Programmers Guild and other groups critical of H-1B have now challenged this action in court. They contend that it is a backdoor way to expand the H-1B program, bypassing Congress. It certainly seems that way to me too. Do PG et al have standing to sue? Well, they certainly can show harm coming from DHS' action. Even the congressionally-commissioned NRC report, compiled by a largely industry-friendly committee that included members from Intel and Microsoft, pointed out that the H-1B program brings some harm to American workers in the fields in which H-1Bs are hired. And today, remember that salaries for new graduates in CS and EE have been flat or falling, after accounting for inflation. Thus the foreign students making use of OPT are cutting into job opportunities for the domestic students. So, to me, as a nonlawyer, it seems very clear that these groups have standing to sue. DHS will no doubt argue the opposite. It will be interesting to watch. Norm Computerworld H-1B opponents challenge Bush administration in court Suit filed over decision to extend work period on student visas to 29 months By Patrick Thibodeau May 31, 2008 The Bush administration's recent decision to extend the amount of time foreign nationals can work in the U.S. on student visas is being challenged in a federal lawsuit by H-1B visa opponents. The opponents argue that the administration exceeded its legal authority by stretching the rules for foreign students by extending the length of the visas from one year to 29 months. The suit, filed in U.S. District Court in Newark, N.J., by the Immigration Reform Law Institute and joined by The Programmers Guild and other groups, charges that the administration's decision in April to extend the work period for students under the Optional Practical Training provision is little more than an effort to get around the H-1B cap limit. "They did this with absolutely no legal basis," said John Miano, founder of The Programmers Guild in Summit, N.J. He said the federal extension will hurt U.S. workers who are seeking job training because it will divert training resources to foreign workers. "We hear over and over again that U.S. workers do not have the skills to do the job," he said. Others that have joined in the lawsuit are the American Engineering Association and Brightfuturejobs.com. Until the Bush administration, through the U.S. Department of Homeland Security, made the change earlier this year, foreign national students typically worked for one year after graduation on their student visa while their employers filed for an H-1B visa. Tech industry groups, however, had sought the extension because of the backlog for H-1B visas. The U.S. has an annual H-1B visa cap of 85,000, which includes 20,000 reserved for advanced degree holders. But demand for the visas has exceeded the cap and for the last two years the government has quickly exhausted the number of visas available. Industry groups argued that, as a result, it was becoming impossible for students to apply for an H-1B visa, through their employer, in the same year they graduate.