Foreign STEM Worker Issue Has Trump Folks Defending Obama Rule

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By Laura D. Francis

The Trump administration hasn’t been shy about dismantling Obama-era immigration programs, but there’s one that seems to be sticking around for the time being.

Justice Department lawyers Feb. 20 defended a 2016 regulation allowing foreign students with science, technology, engineering, and mathematics degrees to work in the U.S. for up to three years post-graduation.

The Immigration and Customs Enforcement regulation is being challenged by a group of U.S.-born technology sector workers who argue that it’s creating additional job competition and lowering wages.

“More labor means lower wages across the board,” New Jersey attorney John Miano told Bloomberg Law Feb. 21. Miano represents the Washington Alliance of Technology Workers (WashTech) in the case, and he argued on its behalf before the U.S. Court of Appeals for the District of Columbia Circuit Feb. 20.

Calls for U.S. Worker Protections

A common refrain in the Trump administration has been that immigration laws should be administered in a way that protects U.S. workers. The chorus became most prominent last April when President Donald Trump issued his Buy American and Hire American executive order, which the various agencies in charge of administering and enforcing immigration law have been implementing ever since.

But the three-judge appellate court panel that heard arguments Feb. 20 only is deciding whether a lower court should have dismissed the lawsuit early on in the case. The judges aren’t considering WashTech’s main argument--that the regulation is invalid--despite the workers’ request that they do so.

“We’re hitting the 10-year anniversary” of the lawsuit in May, and there are likely to be “years more of litigation” before the issue is finally resolved, Miano said.

The workers originally challenged a 2008 regulation from the George W. Bush administration that created the extended work period for STEM graduates in the optional practical training program. The 2016 regulation expanded what had been a 29-month post-graduate work period, creating a 36-month program with some additional requirements for participation.

In 2015, a federal judge in Washington, D.C., invalidated the 2008 regulation because ICE hadn’t gone through the proper procedures to implement it. But she said the regulation was fine otherwise and gave the agency a second chance to do things the right way.

A second federal judge in Washington, D.C., dismissed the lawsuit that the U.S. tech workers filed in response to the 2016 regulation, leading to WashTech’s current appeal. The workers never got to appeal the 2015 ruling because the D.C. Circuit decided that the 2016 regulation made their case against the 2008 regulation moot.

‘Bigger Question’ at Play

The lawsuit “just goes to show that this administration can in fact think about the long game in many ways,” attorney William Stock of Klasko Immigration Law Partners in Philadelphia told Bloomberg Law Feb. 21.

The administration’s defense of the regulation goes to the “bigger question” of the circumstances under which government regulations can be challenged, said Stock, the immediate past president of the American Immigration Lawyers Association. That’s “in many ways more important to the government than the substance of any individual regulation,” he said.

A representative for ICE declined to answer Bloomberg Law’s request for comment on the regulation. A representative for the DOJ couldn’t be reached for comment.

“There are a lot of forces at work,” Miano said. “Immigration policy was the issue that got Trump elected,” but “his party didn’t get the message,” he said.

Miano pointed to attempts by Republican lawmakers to increase immigration, such as a bill from Sens. Orrin Hatch (Utah) and Jeff Flake (Ariz.) to increase the number of H-1B high-skilled guestworker visas.

Preventing ‘Giant Guestworker Program’

It’s possible that the Trump administration wants to keep the STEM OPT program from being a “giant guestworker program” but doesn’t want it “going away completely,” Miano said. OPT was “underneath the radar” when it was a simple program that only allowed work for one year after graduation, he said.

But with the 2008 regulation, “the camel had its nose under the tent and now we have the full camel in the tent,” he said. You can’t put the camel’s nose back under the tent--you need to send him “back to his pen,” he said.

The number of OPT approvals jumped from 28,497 in fiscal year 2008--when Bush extended the program--to 136,617 in FY 2014, according to the Pew Research Center. Nearly as many international students are approved for OPT as are approved for H-1B visas: there have been 696,914 OPT approvals between FY 2008 and FY 2014, and 768,214 H-1Bs awarded during the same time.

Many OPT participants go on to obtain H-1B visas, and giving them multiple cracks at getting the coveted work visa was one justification for the program’s expansion in 2016.

White House Position Could Change

But Stock said the administration’s current defense of the program in court doesn’t mean it won’t proceed differently in the future. “Nothing’s going to change right away,” but “that doesn’t mean they’re not going to try,” he said.

It’s also unclear what the government’s litigation position will be if it has to defend the substance of the regulation, he said.

The D.C. Circuit judges “seemed upset that this case had been dismissed,” Miano said. If that decision is overturned, the case will continue in the lower court.

But if the appeals court agrees that the case should be dismissed, “we’re ready to file another case” with different plaintiffs, Miano said. There are so many individuals and groups that want to challenge the regulation that “we have to tell people no,” he said.

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