I recently wrote about the Department of Homeland Security’s proposed rule to establish a substantial fee colleges and universities would have to pay for the privilege of letting their foreign “students” work for employers for up to three years under “Optional Practical Training” (OPT), including even after they have completed their courses of study. The rule’s goal is to reduce rampant fraud in the OPT program and protect American workers.
The Center for Immigration Studies has submitted a comment to the Office of Management and Budget on DHS’s proposed rule.
Under the Administrative Procedure Act, a federal agency (subject to exceptions) “shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments”. The Office of the Federal Register explains that:
The notice-and-comment process enables anyone to submit a comment on any part of the proposed rule. … [T]he agency must base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre-rule and proposed rule stages. To move forward with a final rule, the agency must conclude that its proposed solution will help accomplish the goals or solve the problems identified. It must also consider whether alternate solutions would be more effective or cost less. If the rulemaking record contains persuasive new data or policy arguments, or poses difficult questions or criticisms, the agency may decide to terminate the rulemaking. Or, the agency may decide to continue the rulemaking but change aspects of the rule to reflect these new issues. If the changes are major, the agency may publish a supplemental proposed rule. If the changes are minor, or a logical outgrowth of the issues and solutions discussed in the proposed rules, the agency may proceed with a final rule.
Our comment makes clear that CIS shares DHS’s concerns as to OPT’s negative effects on American workers and American students and applauds DHS for the proposed OPT fee. Our comment then makes recommendations for strengthening the rule:
- While the fee would go a long way toward lessening OPT’s ill effects on American workers and students, the proposed rule acknowledges that the fee would not totally remedy these effects. In addition, the post-completion (of a student’s course of study) type of OPT itself contravenes the Immigration and Nationality Act. CIS thus recommended that DHS modify the proposed rule by eliminating post-completion OPT.
- CIS recommended that DHS modify the proposed rule by shifting the justification for the amount of the fee away from matching the $100,000 H-1B fee and toward recouping the monetary windfall that employers receive by hiring OPT workers instead of H-1B workers or American workers. This might result in a resetting of the fee amount. The H-1B fee has for now been enjoined by federal courts. In addition, the H-1B fee only applies to aliens who have not yet entered the United States, and thus does not apply to employers petitioning for graduating foreign students and other aliens already in the U.S.
- CIS recommended that DHS modify the proposed rule so that employers of OPT workers would be directly responsible for paying the fee, rather than colleges and universities themselves. Employers generally have a greater “ability to pay” the fee and they are the primary financial beneficiaries of OPT. The recommended change would bolster a final rule’s defense against legal challenge.
- CIS recommended that DHS modify the proposed rule by requiring that all OPT workers be paid at least the prevailing wage in the occupation and area of employment, and that employers could not lay off American workers and replace them with OPT workers.
- CIS recommended that DHS modify the proposed rule by capping the number of foreign students who could participate in OPT.