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Will Trump Opt to Restrict Foreign Student Work Program?

The Trump administration is reportedly considering temporary restrictions on a program that lets more than 200,000 international students stay in the U.S. and work after they graduate.

May 29, 2020
 
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Advocates for international students are raising alarm bells about a possible Trump administration plan to curtail a popular program that lets international students work in the U.S. for up to three years after graduating college. The advocates say restrictions on the program could have far-reaching economic implications for the American labor market and for colleges that recruit international students and rely on the revenues they bring in.

An estimated 223,085 international students participated in optional practical training, or OPT, in the 2018-19 academic year, and participation in OPT has surged in recent years.

“It’s an essential part of the package of benefits that we offer to international students who come to the United States,” said Brad Farnsworth, vice president for global engagement for the American Council on Education. ACE joined with nine other higher education associations in sending a letter to the White House last week requesting a meeting to discuss the OPT program.

"The opportunity to get practical work experience that is aligned with their course of study is a huge draw," Farnsworth said. "The market for international students is a global market, and students who are coming from the major source countries, China and India, have really attractive choices. For example, the U.K. just restored their equivalent to OPT."

The Wall Street Journal recently reported that the Trump administration is considering placing temporary restrictions on OPT, which allows international students in STEM fields to work for a U.S. employer for up to three years after they graduate and students in all other fields to work for one year, all while staying on their student visas. It’s not clear what the restrictions may look like -- various options are reportedly under consideration -- but Trump administration officials said they're designed to help American graduates looking for entry-level work during the economic downturn. Administration officials cited the 26 percent unemployment rate among 18- to 24-year-olds, who would ostensibly be competing for jobs with international students, as a reason for placing temporary restrictions on the program.

A May 7 letter from a group of four Republican senators -- Tom Cotton, of Arkansas; Ted Cruz, of Texas; Chuck Grassley, of Iowa; and Josh Hawley, of Missouri -- urged Trump to suspend OPT along with several guest worker programs, arguing, “There is certainly no reason to allow foreign students to stay for three additional years just to take jobs that would otherwise go to unemployed Americans as our economy recovers.”

A coalition of College Republican chapters has also called on Trump to end the OPT program, saying that rescinding work authorization for foreign nationals would "ease the economic suffering of American college students and recent graduates looking for meaningful employment in these trying times."

Advocates for reducing immigration have long disliked the OPT program, which, unlike the H-1B skilled worker visa program, is not subject to requirements that companies pay a competitive wage to reduce the likelihood of companies hiring immigrant workers at lower pay than American workers. Opponents of the program also point to the fact that some OPT participants (and by extension, their employers) don’t pay Social Security or Medicare taxes, making them cheaper to hire than their American counterparts.

An ongoing lawsuit challenging the program filed by the Washington Alliance of Technology Workers argues that the Department of Homeland Security exceeded its authority in creating OPT and that the program creates “unfair competition with American workers.”

“Now is the perfect time to downsize the OPT program,” David North, a fellow at the Center for Immigration Studies, a think tank that promotes reducing legal immigration, wrote in a May 26 blog post. North proposes shrinking the program -- which currently is open to any international student -- to include only those students who graduate in the top quarter of their class at highly ranked American universities.

But businesses have been highly supportive of the OPT program. More than 300 employers and business groups signed on to a May 21 letter to Trump urging him not to restrict the OPT program or other visa programs for high-skilled workers. The letter cites research published by the Business Roundtable in December 2018 that found that reducing OPT participation by 60 percent would negatively affect the U.S. economy and result in the loss of 443,000 jobs over a decade, including 255,000 jobs held by native-born workers.

"This result reinforces the findings of myriad prior studies that show that foreign-born workers actually create jobs for native-born workers on aggregate, rather than displace them," the research report states.

Another study published last year by the National Foundation for American Policy, a research organization focused on trade and immigration, found “no evidence that foreign students participating in the OPT program reduce job opportunities for U.S. workers. Instead, the evidence suggests that U.S. employers are more likely to turn to foreign student workers when U.S. workers are scarcer.”

An issue brief released by NFAP earlier this month noted that unemployment in computer occupations -- a popular field for OPT participants and H-1B visa holders -- has actually decreased during the economic downturn, declining from 3 percent in January to 2.8 percent in April.

"The data raise questions about the Trump administration’s ability to use the unemployment rate for computer professionals to justify the new restrictions being considered for H-1B visa holders and international students working on Optional Practical Training," the report states.

The Trump administration has long signaled plans to introduce a new proposed rule that would overhaul the OPT program -- plans for such a rule are a regular feature of its biannual regulatory agenda -- but has yet to produce such a rule. Supporters of the OPT program say two recent presidential actions framed as intended to stimulate the economy give them reason to worry action on OPT might be coming.

The first, a presidential proclamation issued in April suspending entry of certain immigrants, directs the secretaries of homeland security, labor and state to review all nonimmigrant programs -- a category that includes international student visas and OPT, as well as the H-1B program -- and recommend “measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

The second, an executive order published in the Federal Register last week, directs agencies to “address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”

Stephen Yale-Loehr, a professor of immigration practice at Cornell University, said the Trump administration could take a number of actions in relation to OPT, ranging from introducing a proposed rule -- a lengthy process that entails a public notice and comment period -- to issuing an executive order immediately terminating or suspending the program, an action that would likely be immediately challenged in court. A middle option, he said, would be to temporarily modify the rules governing OPT in light of last week's executive order giving agency heads broad discretion to set aside or revise rules deemed to inhibit economic recovery -- an action that Yale-Loehr said also would likely be challenged in court.

“I personally think that the president is likely to go the first option of instructing the Department of Homeland Security to start rule making, because I think he’s getting a lot of pushback from companies that rely on OPT,” Yale-Loehr said. “A proposed rule would give him political cover while not actually suspending the OPT program.”

“The nightmare scenario that a lot of international students are worried about is some kind of bolt-from-the-blue suspension of the program where everybody who’s applied is out of luck and everybody who’s on the program has to leave the country,” said Doug Rand, who worked on immigration policy in the Obama White House and is now co-founder of Boundless Immigration, a technology company that helps immigrants obtain green cards and citizenship. “That seems extremely unlikely. I don’t want to say it’s impossible, but it’s hard to even imagine a legal authority they could point to to do that.”

Rand said that while the president has expansive powers to deny entry of foreign nationals to the U.S., presidential powers are much more limited when it comes to the immigration statuses of individuals already in the U.S.

Even if in the end nothing is done to temporarily restrict OPT, Farnsworth, of ACE, said the perception the program is vulnerable matters in and of itself.

“International students are reading the same things we’re reading,” he said. “Even an active discussion of suspending OPT has an impact.”

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