Will Work Program for Foreign Tech Students End?

By Laura D. Francis

The “next target” of the Trump administration’s changes to the immigration system may be a work program for foreign graduates of U.S. colleges and universities, Stuart Anderson of the National Foundation for American Policy said Oct. 10.

Last year, the Obama administration expanded optional practical training to allow foreign graduates with science, technology, engineering, and mathematics degrees to work in the U.S. for up to three years after graduation. That’s over and above the 12-month OPT period for foreign students with other types of degrees.

The idea in part was to allow the students multiple attempts at obtaining an H-1B high-skilled visa, which in recent years has drawn demand far above the annual cap of 85,000.

The March 2016 regulation survived a legal challenge, but the current administration has been skeptical of high-skilled immigration, Anderson said.

So far, however, there don’t appear to be any changes in the works.

Immigration and Customs Enforcement, which administers OPT, isn’t altering the program in any way, ICE spokeswoman Carissa Cutrell told Bloomberg BNA Oct 10. ICE’s OPT website continues to display information related to the 2016 regulation.

A representative for the White House didn’t respond to Bloomberg BNA’s request for comment.

‘There Would Be a Court Battle’

“I’m sure there would be a court battle” if the administration rescinded the regulation, Stephen Yale-Loehr, a professor of immigration law practice at Cornell University Law School, said Oct. 10. Any argument that the 2016 regulation was somehow illegal “would be very dubious,” he said.

A federal judge in Washington, D.C., in April rejected a challenge to the regulation brought by a union representing U.S.-born tech workers. The case has been appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

“The problem” for the administration “is that it would be difficult to get rid of the 24-month extension without getting rid of OPT entirely,” New Jersey attorney John Miano told Bloomberg BNA Oct. 10.

The program isn’t authorized under any law, yet the Department of Homeland Security and its predecessor, the Immigration and Naturalization Service, “have done it anyway,” said Miano, who’s representing the U.S. tech workers in the STEM OPT litigation. The parties are scheduled to file their opening briefs in the appeal at the end of the month, he said.

Economic Argument?

ICE could claim there’s “some economic disadvantage to American students” to justify rescinding the regulation, said Yale-Loehr, who also practices with Miller Mayer in Ithaca, N.Y. “We’ll just have to wait and see exactly how they go about rescinding STEM OPT, if they do,” he said.

But arguing that STEM OPT cuts down on job opportunities for U.S. workers also isn’t a winning argument, Anderson said.

For example, the Conference Board recently reported that there are almost five times as many online ads for computer and mathematical science positions as individuals listed as unemployed in those occupations: 510,000 online ads versus 110,000 unemployed, according to an Oct. 10 report from the NFAP.

Ending STEM OPT would cause multinational companies to move jobs overseas and create a chilling effect on foreign students’ willingness to study in the U.S., said NFAP, an Arlington, Va.-based research organization that focuses on trade, immigration, education, and “other issues of national importance.” That in turn would shrink science and engineering programs and impair colleges’ ability to attract and retain faculty, it said.

Foreign nationals account for 81 percent of full-time graduate students in electrical engineering and petroleum engineering; 79 percent in computer science; 75 percent in industrial engineering; 69 percent in statistics; 63 percent in mechanical engineering, economics, and statistics; 59 percent in civil engineering; and 57 percent in chemical engineering, according to a separate NFAP report.

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

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

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