OPT Shows America Is Governed Through Regulations Pitched at Dinner Parties Held by the Wealthy

By John Miano on December 20, 2021

The American immigration system has a plethora of guestworker programs for admitting foreign labor. These include E, J, L, and H visas.

Guess what guestworker program admits the most foreign labor each year?

If you guessed student visas you are right.

If you didn’t guess student visas, you might be asking yourself how that is even possible. Aren’t student visas supposed to be for students?

If you read the definition of the student visa that Congress enacted, student visas are explicitly limited to aliens attending school. In fact, that definition makes no mention of authorizing employment:

(F)(i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 1184(l) of this title at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States, particularly designated by him and approved by the Attorney General after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn, (ii) the alien spouse and minor children of any alien described in clause (i) if accompanying or following to join such an alien, and (iii) an alien who is a national of Canada or Mexico, who maintains actual residence and place of abode in the country of nationality, who is described in clause (i) except that the alien’s qualifications for and actual course of study may be full or part-time, and who commutes to the United States institution or place of study from Canada or Mexico.

If you are wondering how student visas could then become the largest guestworker program in the immigration system, let me welcome you to the rise of the out-of-control administrative state.

Under the administrative state system, bureaucrats can make law in the form of regulation. Nearly all federal law comes from regulation and not from Congress. This system of legislation by regulation has grown to the point where the bureaucracy frequently ignores Congress.

Let’s look at how student visas became the largest guestworker program.

In 1992 the former Immigration and Naturalization Service (INS) created the Optional Practical Training program (OPT) in a regulation made without notice and comment. OPT originally allowed aliens to remain in the U.S. and work for up to a year on a student visa after graduation – i.e., after they had stopped actually being students. The OPT program was small enough and of short enough duration that it attracted little notice.

The OPT program and H-1B visas subsequently become entwined. In 1998, the tech industry lobbied successfully to make it legal to replace Americans with H-1B workers and to increase the number of visas. They were able to get additional increases in visa numbers in 2000 and 2004.

After these enactments by Congress, the only real protection for American workers in the H-1B program was the annual quotas on the number of foreign workers.

Getting Around Numerical Caps. The tech industry had a plan for that. In 2007 they had a dinner party for DHS Secretary Michael Chertoff as the home of the owner of the Washington Nationals baseball team. There, Microsoft pitched the idea of using the OPT program as a means to circumvent the quotas on H-1B visas by extending the duration of OPT to 29 months.

From there, Chertoff’s DHS worked in total secrecy with industry and academic lobbyists to implement Microsoft’s plan. While the lobbying industry had access to the process, the public received no notice whatsoever that such regulations were even being considered until DHS published them in 2008.

The 2008 regulation extended OPT to 29 months for aliens receiving a degree in a “STEM” field. The 2008 regulation did not even pretend to have any academic purpose. The only reason given for the longer work period was to circumvent the quotas on H-1B visa. DHS gave no explanation as to why the duration of 29 months was chosen; that seems to have simply been what Microsoft told DHS to do.

Since then, the question of whether the OPT program is lawful has produced nearly 14 years of litigation (in which I have been involved).

Through secret rule rulemaking, Microsoft and the tech industry were able to wipe out the only real protection for American workers in the H-1B program: limits on the number of foreign workers.

Congress has enacted statutes that directly allow foreign labor or permit DHS to issue regulations allowing foreign labor. In addition, DHS simply makes regulations to admit foreign labor on its own. OPT is just one example. Work authorization for H-1B spouses is another.

In fact, DHS now claims in court that it has the power to allow any foreign labor unless Congress explicitly prohibits it. Because any such prohibition is subject to a presidential veto, DHS claims its power over foreign labor is greater than that of Congress. And now the amount of foreign labor entering the country each year through regulations not authorized by Congress exceeds that authorized by Congress. The statutory scheme for admitting foreign labor has now become subordinate to a regulatory scheme created by bureaucrats.

Under the Administrative Procedure Act, the federal courts are responsible for ensuring that agency regulations comply with their statutory authority. However, the Supreme Court has come up with two doctrines that have allowed the agencies to run amok.

The Doctrine of Standing. First, the Supreme Court invented out of thin air the doctrine of standing to protect challenges to the New Deal. When challenges were brought against New Deal programs that were clearly unconstitutional under established precedent, the courts could simply say the plaintiff did not have standing to bring the case, allowing the actions that were formerly unconstitutional to stand. The Supreme Court subsequently proclaimed that standing was a constitutional requirement even though it is never mentioned in the Constitution and the concept would have been totally alien to its drafters.

If anyone wants to talk politics and the Supreme Court, standing is an ulcerated, puss-filled sore on the nose of the federal courts.

The rules of standing are so nebulous that their application varies widely. Plaintiffs finding favor with a court can present novel standing theories, have the court observe that the standing rules are nebulous, and sail over the standing hurdle without a scratch. Plaintiffs not finding favor can present established standing theories and still spend five years litigating whether they have standing to litigate.

Here I am referring to “standing” in its current incarnation where a plaintiff first must affirmatively prove standing before it can argue its case. There was always a related concept of standing. For example, if your next-door neighbor was hit and injured by a negligently operated horse-drawn carriage, you would never have been able to sue its driver for injuries. The Wikipedia article on standing describes Frothingham v. Mellon (1923) as the first standing case. Yet that case never uses the term standing nor does it set up the kind of initial standing requirement that has become a religious ritual in the federal courts.

Further illustrating the politics of standing, the Supreme Court bends the standing rules to permit preferred plaintiffs. In Frothingham v. Mellon, the Supreme Court held taxpayer challenges to spending were not judiciable (interpreted now as there is no standing). Notably, when it comes to Establishment Clause challenges, the Supreme Court bends the rules. In Flast v. Cohen, the Supreme Court permitted challenges under the Establishment Clause that would have been banned under Frothingham v. Mellon. Similarly, political subdivisions of the state historically had been unable to sue their state in federal courts. Again, the Supreme Court carved out an exception on that for Establishment Clause challenges. A more recent example is Massachusetts v. EPA, where the Supreme Court lowered the standing bar for states to sue over carbon emissions.

The effect of standing is that it gives an agency a defense to any action, no matter how unlawful it is. An agency can put a plaintiff through years of litigation on standing any time its actions are challenged. Furthermore, the rules of standing create a class of agency regulations that no one can challenge.

Chevron Deference. Second, the courts frequently extend deference to the agencies that is actually abdication. This is frequently called “Chevron deference”. The D.C. Circuit Court of Appeals held oral arguments on OPT on November 3. The district court’s opinion on OPT illustrates the extent deference can take.

The student visa definition is restricted to aliens solely pursuing a course of study at an academic institution that will report termination of attendance. The plain text of the statute does not extend student visa status to years of work after graduation at Microsoft.

The district court held that the definition of the student visa just defines entry requirements. Once the alien enters the country on a student visa, DHS is free to ignore those restrictions.

Worse yet, DHS never ensures (and has no ability to ensure) that aliens applying for student visas are coming solely to study and have no intention to take advantage of work after graduation, so the student visa requirements not applied at entry either.

And then the district court held that since there is no explicit prohibition on work after graduation, DHS can allow it.

This kind of deference to DHS is striking. The district court held that DHS can ignore every restriction Congress affirmatively imposed on student visas and the district court held DHS can do what Congress has not prohibited. Thus, every restriction Congress has enacted on student visas becomes a nullity.

When you combine standing with the extent of judicial deference, it is no wonder that federal agencies run amok.

The stakes for American workers are high in the OPT litigation. Already, the statutory system of admitting foreign labor has been subordinated to the regulatory system. More foreign labor is admitted each year through regulations made without congressional approval than is admitted pursuant to statutes enacted by Congress. If the courts hold that the OPT program is within DHS’s authority, the courts will have removed all barriers to DHS continuing the process of wiping out protections for Americans in the immigration system.

The OPT litigation raises the question of what type of government the United States is going to have. Is America to be governed by an elected Congress or is America to be governed through regulations pitched at dinner parties held by the wealthy? The OPT litigation demonstrates the latter is reality and not hyperbole.