DHS Files Last-Ditch Motion to Preserve Improper OPT Rules

By John Miano, December 27, 2015

As we have reported previously, the U.S. District Court for the District of Columbia vacated new regulations for the Optional Practical Training (OPT) program effective February 12, 2016. The court gave DHS a six-month delay to allow it to take some form of corrective action. The deadline for DHS to correct by getting a new rule in place has come and gone.

(OPT is for foreign workers masquerading as students; the new regulations extend the period of time foreign graduates in STEM fields (Science, Technology, Engineering, and Math) could work under PT status.)

As DHS pointed out to the court, once the rule is vacated on February 12, aliens working on the OPT extensions will have to cease work and leave the country.

We now know how DHS will respond to its failure to meet the deadline. It filed a motion last week with the District Court to seek relief from the judgment, hoping to get a further delay on the vacatur of the regulation. This is a Hail Mary on the part of DHS; the Cowboys have better odds on making the Super Bowl this year than such a motion has to succeed.

The motion process will extend into the middle of January. Depending on how long it takes the judge to decide, the foreign guest workers will get less than a months' notice whether they can continue working past February 12. In fact, they may get no notice at all. February 12 could come with no court decision and they would have to immediately stop working.

DHS could have used the six-month delay the court very generously granted them to plan an orderly transition for when the OPT extensions go away, but did not do so.

If this sounds screwed up, remember that these are the same folks managing airport line security. 'Nuf said.

I found the materials DHS filed in support of the motion highly disturbing. Remember that OPT extensions were created in 2008 for the purpose of circumventing the quotas on H-1B visas; the thinking was, if the aliens could not get an H-1B visa, let them work on a student visa instead after graduation – even though they were no longer students. Microsoft pitched the idea of these regulations to the DHS secretary at a dinner party. DHS then worked in secrecy with industry and academic lobbyists to create the rules and promulgated them without any notice to the public that such rules were being considered.

That, folks, is government corruption.

When the court held last August that the regulations were promulgated unlawfully, what was DHS's response to having a court-imposed deadline?

In the motion, Rachel Canty, Assistant Director for External Operations for the Student and Exchange Visitor Program (SEVP) at U.S. Immigration and Customs Enforcement (ICE), said DHS took an "'all-hands-on-deck' approach, in which multiple offices from throughout DHS and other agencies helped develop and review the draft regulation on an expedited basis."


Compare and contrast: When Americans are replaced by H-1B workers, DHS does absolutely nothing. Zero. When foreign workers will lose their jobs, DHS summons "all-hands-on-deck" to respond.

That shows a government with a completely warped sense of priorities.