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Is OPT in Peril?

Lawsuit challenges program that lets international students temporarily work in the U.S. Colleges say ending the program would harm students' education and recruitment abroad.

November 26, 2019
 
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More than 100 U.S. colleges signed on to an amicus brief opposing a lawsuit that seeks to end the optional practical training program, which allows international students to work in the U.S. for up to three years after graduating while staying on their student visas.

Colleges say that ending the program would severely harm the ability of U.S. universities to attract international students. Other countries with which the U.S. competes for international students such as Australia and Canada offer poststudy work programs -- the United Kingdom recently announced plans to expand poststudy work rights for international students -- and research has documented a positive relationship between policies that allow students to work on a temporary basis after graduating and international student growth rates.

The lawsuit, brought by the Washington Alliance of Technology Workers, a labor union, argues that the Department of Homeland Security exceeded its regulatory authority in creating the OPT program, effectively establishing a large-scale foreign guest worker program without congressional approval.

“Because aliens on OPT are not pursuing a course of study at an academic institution that will report termination of attendance, because there is no statute that authorizes employment on F-1 visas, and because no statute authorizes aliens to remain in student visa status after they have graduated and are no longer attending school, the OPT program is contrary to law and in excess of DHS authority,” the union, known as WashTech, said in a motion for summary judgment filed in September.

In their amicus brief defending the OPT program, the colleges argue that OPT is crucial both to the quality of education international students can get in the U.S. and to the ability of U.S. universities to attract international students. The brief notes that between 2004 and 2016, nearly 1.5 million international students and graduates participated in OPT, more than half in jobs in science, technology, engineering and mathematics fields.

“If WashTech has its way, OPT will cease to exist,” says the amicus brief from 118 colleges, which was filed on Thursday. “And if it ends, so too will the myriad benefits of OPT to international students, American colleges and universities, and the national economy. If OPT is eliminated, international students will have fewer opportunities to continue their education beyond the walls of the classroom -- something that research shows is often required to master complex fields such as those in the STEM area. Likewise, if OPT is ended or reduced, it will be harder for amici to compete for international students, particularly at a time when global competition is fierce and international students are already questioning whether they are welcome in the United States in light of recent changes in immigration policy and enforcement.”

"If students aren’t able to take what they’ve learned in the classroom and continue that learning in very high-powered work environments where the skills they’ve learned are used, it reduces the attractiveness of American universities -- and other countries are eager to fill that gap," said Ishan Bhabha, a co-author of the colleges' brief and a partner with the law firm Jenner and Block.

The lawsuit against OPT has a long history. WashTech initially filed suit in U.S. District Court in the District of Columbia in 2014; the lawsuit led to a judge throwing out a 2008 rule that extended OPT for certain international students on the grounds that it had been issued without proper public notice-and-comment procedures. The judge stayed her ruling by six months to give the government time to properly introduce new regulations, which it did in 2016.

The 2016 rule further extended the duration of OPT for certain students, so that students who study STEM fields can stay on OPT for up to three years after graduating. Students who study non-STEM fields continue to be eligible for just one year of postcompletion OPT, which has been the case since 1992.

The first lawsuit was ultimately dismissed. But WashTech filed suit again, and a judge ruled in July that it could challenge the entire postcompletion OPT program, not just the 2016 extension for STEM students.

Heather Stewart, counsel and director of immigration policy at NAFSA: Association of International Educators, said the authority of DHS to issue work authorization for postcompletion OPT has long rested with DHS and its predecessor agency, the Immigration and Naturalization Service.

“For over 50 years, some version of optional practical training has been available,” Stewart said. “Congress has had many decades if they wished to step into this area, and they have not because it has been such a feature of U.S. higher education that optional practical training would be available.”

"It’s critically important that higher education institutions are able to make the case that optional practical training is an integral part of U.S. higher education," Stewart said of the colleges' amicus brief, which NAFSA helped organize. "The judges need to hear that if OPT is imperiled or reduced or taken away, that would afford international students less of an educational opportunity in this country."

Rachel Banks, the director of public policy for NAFSA, added that the countries with which the U.S. competes for international students all offer poststudy work opportunities. "Most tellingly," she added, the U.K. has moved to restore those opportunities after seeing international enrollments stagnate without them. "It's viewed as an integral component to being attractive to international students to come and study. It's almost expected," Banks said.

John Miano, a lawyer for WashTech and counsel for the Immigration Reform Law Institute, said the amicus brief submitted by the colleges "was a striking admission by American universities that they no longer provide sufficient value to cover tuition. College tuition has been rising out of control for decades, and so they’ve had to turn to foreign students to subsidize it, and now even foreign students are saying it ain’t worth it. Our education doesn’t provide the value for the tuition; now we need the taxpayers to provide immigration benefits as well to us."

Miano said he feels confident OPT could be ended by court order this spring.

"Congress had made clear that student visas are to come to the United States, study and go home," he said. "What we now have is a cabal of the business groups and academia who want to transfer student visas into a mechanism to enter into the United States to enter the workforce, to use student visas as a means to supply foreign labor."

The lawsuit was brought by WashTech against the Department of Homeland Security, but several large business associations -- the National Association of Manufacturers, the Chamber of Commerce of the U.S. and the Information Technology Industry Council -- successfully petitioned to act as co-defendants in order to defend the legality of the OPT program. The groups argue that if OPT were to end, the companies that make up their membership "would lose thousands of employees, and the pipelines for new talent would be choked off."

The business associations added that their interests in protecting OPT are “not adequately represented by the government, which has already taken steps to reconsider the regulation being challenged in this suit.”

The Department of Justice -- which earlier this fall submitted a motion to dismiss WashTech's lawsuit -- declined to comment for this story.

In its recently released regulatory agenda, a biannual blueprint of planned rules and other proposed executive actions, the Trump administration set an August 2020 target date for issuing a new proposed rule on practical training programs for international students. There is scant detail about what such a new rule will entail; the notice says only that the administration “will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.”

In earlier versions of the regulatory agenda, the Trump administration took a more protectionist tone, suggesting it would propose a new rule to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas” and “reduce fraud and abuse.”

In an amicus brief supporting WashTech's motion for summary judgment, the Center for Immigration Studies, an organization that advocates reducing immigration, argues that OPT “permits the subsidized shouldering aside of hundreds of thousands of U.S. college graduates by foreign nationals each year” (subsidized because students on OPT and their employers do not have to pay taxes toward Medicare and Social Security, unless the student has already been in the U.S. for five years).

In its brief, CIS argues that colleges have limited ability to supervise the training provided to recent graduates who could obtain employment through OPT anywhere in the country. CIS describes the training that students receive on OPT as "nominal at best, merely a fig-leaf to cover OPT’s true nature as a foreign worker program."

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