DHS Ignores Rules for OPT Visas

By John Miano on March 12, 2014

The GAO has just released a report on Optional Practical Training (OPT). The report is a scathing indictment on the OPT program. Sadly, as my colleague David North also notes, the GAO's approach misses the forest amongst the trees.

The term "practical training" in DHS-speak is a euphemism for work. Optional Practical Training is merely work that takes place on a student visa. There is no requirement that training take place.

But aren't people on student visas supposed to be students?

That question gets to the heart of the problem.

Congress has not authorized any work to take place at all under student visas. The only time Congress has permitted foreign students to work was under the Immigration Act of 1990.

Congress authorized a two-year trial program that allowed foreign students to take off-campus student jobs, but that expired long ago. Now work on student visas is entirely the creation of the bureaucracy through regulation.

Those regulations have changed dramatically over time. Go back to 1952, when the current student visa was created. At that time foreign students were permitted to work for six months in practical training if such work was required or recommended by the school. The practical training could be extended only if the school and training agency certified the training could not be completed within six months.

Over the years, that transformed into a year of work after graduation in the student's field of study if such work were not available in his home country. Then that was expanded to all foreign students. In 2002, the regulations were changed so that aliens could work on OPT when not enrolled at a school.

By this point the OPT program had run off the statutory rails. Aliens working on OPT (post-graduation) are not students. They have already graduated and completed their course of study. In contrast, the statutory authorization for student visas requires that the alien be a bona fide student persuing a full course of study at an approved academic institution. Congress requires DHS to ensure that aliens on student visas leave the country when they are no longer students (8 U.S.C. § 1184(a)). Yet, DHS allows aliens to remain in the United States and work after graduation when they are no longer students.

Work under student visas evolved from a program for students to work as part of a curriculum under a training agency to merely work that takes place after graduation.

In 2008 the regulatory process ran amok. The year before, Microsoft's chief lobbyist came up with a scam to circumvent the quota on H-1B guestworker visas. He wrote DHS and suggested that the OPT work period be expanded to 29 months. If the H-1B quota prevented an alien from getting a work visa, he could just work on a student visa instead.

Over the next few months, DHS worked in absolute secrecy with industry and academic lobbyists to come up with regulations. The regulatory process is supposed to take place in public, but DHS did not let anyone other than lobbyists know that these regulations were being considered.

DHS crafted regulations that would allow aliens on student visas who graduated with degrees in STEM (science, technology, engineering, and mathematics) fields to work in the United States for up to 29 months. It also allowed former students to be unemployed and looking for work. The whole purpose of the regulations was to undermine H-1B visa quotas.

But DHS had a little problem. The justification for these regulations was to remedy an alleged shortage of technology workers. Yet there were no authoritative studies to establish that such a shortage existed. In fact, all the studies the government would have had available showed there was no shortage. How could DHS justify a regulation increasing the amount of foreign labor to remedy a labor shortage when they could not show there even was a labor shortage?

DHS had a simple solution: fraud.

Lacking any credible source establishing the worker shortage needed to justify the regulations, DHS simply lied. When it published the regulations, DHS claimed an NSF report found there was a "critical shortage" of STEM workers in the United States. In reality, the cited passage has nothing to do with worker shortages, the phrase "critical shortage" never appears in the entire report, and the report does not conclude there is a shortage.

Normally, a fraud like this would have been caught. Regulations are supposed to go through a notice and comment period when the public can provide input. DHS knew that this process would have exposed its fraud.

To cover up the fraud, DHS delayed action and then declared the regulations were needed as an emergency measure. DHS promulgated the regulations without notice and comment.

That was just the beginning of DHS's failure to comply with the law. Regulations are supposed to be published in the Federal Register. DHS came up with a way to avoid this when it came to determining which fields are eligible for the STEM OPT extension. DHS's regulations incorporate by reference a list maintained on DHS's website. However there are rules governing incorporation by reference in regulations. These rules prohibit incorporating by reference material published on an agency's website.

DHS simply ignored them.

Having established this list, DHS has been using it to avoid publication in the Federal Register. Twice, DHS has changed the eligibility list and has merely announced the changes in press releases, rather than going through the required regulatory process.

Who is supposed to keep out-of-control agencies in check?

Congress has delegated that task to the federal courts. Quite frankly, the courts have not done their job. As long as DHS thinks that the courts will permit them to abuse the regulatory process, DHS will continue to do it and the OPT program will continue to diverge from the restrictions Congress has placed on student visas.