Challenge to Work Rule for Foreign Tech Students Dismissed

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By Laura D. Francis

A regulation that allows international students who graduate with science, technology, engineering and mathematics degrees to work in the U.S. for up to three years survived a legal challenge.

The Washington Alliance of Technology Workers argued that the rule that created the optional practical training program allows employers to skirt the H-1B temporary visa program for high-skilled workers without providing labor protections for U.S. workers. A federal judge in Washington, D.C., April 19 decided that the union representing U.S. STEM workers didn’t show that the Department of Homeland Security had done anything wrong with the regulation, either in its substance or in the process of issuing it ( Wash. All. of Tech. Workers v. Dep’t of Homeland Sec. , 2017 BL 128459, D.D.C., No. 1:16-cv-01170, 4/19/17 ).

The judge did agree that the workers represented by the union face increased competition as a result of the regulation. The Trump administration’s focus on protecting U.S. workers from displacement by foreign labor could put the Obama-era regulation at risk of being heavily revised or scrapped entirely.

No Word Yet on Changes

So far the administration has remained mum about the training program, OPT. A spokeswoman for the Department of Homeland Security told Bloomberg BNA April 20 that the judge’s decision doesn’t affect the regulation. She declined to comment on whether the DHS is looking at changing it.But the DHS recently told a federal appeals court that it is taking a second look at a separate regulation giving work permits to the spouses of H-1B workers waiting for their green cards.

The departments of Justice, Homeland Security and Labor also have issued messages warning employers not to discriminate against U.S. workers when hiring foreign workers. U.S. Citizenship and Immigration Services, the agency that administers the H-1B program, also has set up an email address for tips and complaints about employers’ use of the visas.

President Donald Trump April 18 also signed an executive order that emphasizes hiring American workers. The order asks the heads of various agencies to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system.”

Work Authorization Cutbacks Expected

The DHS’s continued defense of the STEM OPT regulation likely has more to do with the stage of litigation than anything else, William Stock, the president of the American Immigration Lawyers Association, told Bloomberg BNA April 20. The lawyers already had filed their briefs, and so it was logical to see it to the end, he said.

What the agency does if WashTech appeals the dismissal of its case may be more telling, said Stock, who practices with Klasko Immigration Law Partners in Philadelphia.

New Jersey attorney John Miano of the Immigration Reform Law Institute, who’s representing WashTech, couldn’t immediately be reached for comment on the case.

The direction of immigration regulations in the Trump administration is likely to be informed by the views of Attorney General Jeff Sessions, Stock said. As a senator, Sessions indicated a belief that any work authorization that isn’t specifically authorized by Congress “is somehow illegal,” he said.

That means a cutback on work authorization could reach not just international STEM graduates, but also other foreign nationals whose work permits stem from regulations rather than statute, Stock said.

But that’s not likely to happen anytime soon, he said. The regulatory process is lengthy and it could be several years before the DHS finalizes any change to existing regulations, he said. And there will be “powerful voices defending the use of STEM OPT,” including through litigation, Stock said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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