Court Victory for American Workers but No Immediate Relief in Sight

My CIS colleague David North has documented the existence of a suspect program begun in 2008 and broadened to disturbing lengths in 2012. The program, initiated and expanded by federal regulations, permits foreign students who have graduated (and thus fulfilled the basis for being granted a visa) to remain in the United States for extended periods of time to engage in "optional practical training" (OPT), which is in fact designed to allow them to enter the workforce and compete directly against struggling American workers in the areas of science, technology, engineering, and math (STEM).

North has also documented the efforts of another Center fellow, John Miano, who helped the Washington Alliance of Technology Workers file suit to overturn the regulations promulgated by the Department of Homeland Security (DHS) that expanded this misuse of OPT at the expense of citizens and lawful permanent resident (LPR) workers. Miano also has reported on the ongoing legal effort.

The latest good news is that the presiding judge agreed with the plaintiffs, and this week issued an order finding that the rules had been promulgated in violation of legally required administrative procedures. The more sobering news is that she is holding the vacating of the regulations in abeyance until February 12, 2016, presumably in recognition that immediate rescission would be disruptive for employers and OPT workers already in the marketplace.

The period between issuance of the order and the February 2016 date will also permit DHS to re-promulgate a regulation in the Federal Register and solicit appropriate public comments, which it failed to do previously, claiming that emergency factors existed justifying its failure to go through the normal processes required by the Administrative Procedures Act. (A full copy of the judge's order can be seen here.)

While I'm heartened by the decision, I'm disappointed that it will not be put into immediate force. What about the serious disruptions that the regulation has already caused, and will continue to cause, to thousands of American and LPR STEM workers displaced or never hired?

And I am, of course, deeply suspicious that merely being required to go through the pro forma act of publishing a proposed rule in the Federal Register and wait for public comments to be filed — many of which will, of course, vigorously oppose the program, especially those from displaced or unemployed tech workers — necessarily translates into the administration giving a tinker's damn about what the comments actually say. After all, when you are the embodiment of divine enlightenment, as this White House and its minions seem to believe, then you know what's best for everybody, don't you, without regard to what they themselves believe?