Rulemaking by Announcement

The Biden administration expands OPT without bothering with the regulatory process

By John Miano on February 2, 2022

I recently wrote about how democracy is being replaced by the administrative state. Now we have another example of bureaucrats run amok.

While created in secrecy entirely by bureaucrats, the post-completion Optional Practical Training program (OPT) is now the largest guestworker program in the entire immigration system. OPT allows all aliens on student visas to work for a year after graduation. However, it allows graduates in STEM (science, technology, engineering, mathematics) fields to work for up to 42 months. As a practical matter, OPT can only function as a guestworker program for STEM fields. For other fields, the duration is too short.

Universities have been working overtime to reclassify non-STEM degrees as STEM in order to take advantage of the longer OPT duration.

As if the chaos at the border is not enough, the Biden administration has decided to expand the OPT program to invite even more foreign labor, as my colleague David North noted recently.

Notice that there has not even been a regulation. It is just an announcement.

The OPT regulations say that STEM is defined by another document that lists eligible fields. Yet the regulations do not say where that document is located or who has authority modify that document. By using incorporation by reference of another document, DHS can change the regulations without going through the regulatory process. For the recent changes, DHS simply announced them as a fait accompli in the Federal Register.

That arrangement is unlawful. Agencies are not allowed to incorporate their own documents by reference.

You could sue DHS over this change. But DHS knows that it can subject any plaintiff who makes such a challenge to years of litigation over standing. Congress has assigned to the courts the duty to ensure agencies conform to their delegated authority and follow proper procedure, but the courts have granted the agencies deference to the point of abdication of responsibility.

You can bet that these changes to OPT were presented to DHS by lobbyists, as is typical in the administrative process. Then DHS worked in secret to make the changes—the same way STEM OPT was created in the first place.

This is how "democracy dies in darkness".