Foreign Worker Program Could Run Out of Time

By David North on October 12, 2015

This should be an interesting (if Inside-the-Beltway) race to watch.

The federal district court in Washington has ruled that the Department of Homeland Security must rewrite the regulations for the OPT program – which provides scores of thousands of jobs for recent alien college grads without any supporting legislation. The current timetable is that the new proposed regs must be ready for publication by this Thursday, October 15, or else the OPT program will come to a halt in February.

The proposed new DHS regs are before the Office of Management and Budget and the question is: Can that agency move fast enough to meet the Thursday deadline?

The Optional Practical Training Program is not a training program at all, it is a foreign-worker
program for recent F-1 students, who have secured a degree in the States. OPT allows most new alien grads a year of authorized work, and it allows 29 months of authorized work if the degree is in one of the STEM fields of science, technology, engineering, or math. OPT is often used by exploitative employers as a preliminary to H-1B hirings.

The OPT program offers a bonus to employers of OPT workers of as much as $10,000 per worker if they hire an OPT alien rather than a citizen being paid the same salary. This is the case because OPT aliens are regarded as students (which they are not) and neither alien students nor their employers are required to pay Social Security and Medicare taxes.

The Washington Tech Group, an association of resident workers, and its lawyer, my CIS colleague John Miano, brought the suit saying that the entire OPT program was neither specifically authorized by Congress, nor proclaimed in an appropriate procedure, as Miano described in a recent posting.

The judge ruled, first, that WashTech had standing to sue, an important matter in such cases; then she ruled, as Miano had argued, that the whole program had been brought into being in a manner inconsistent with the Administrative Procedures Act. Instead of putting the OPT program out of business, she gave DHS until February 12, 2016, to offer an appropriate set of regulations.

The process which agencies use when proclaiming regulations includes a number of time-consuming steps, as outlined by William Stock, president-elect of the immigration lawyers' association; among them is the interim deadline of October 15.

The chances are, Stock writes, that since the district court's order has been appealed to the U.S. Circuit Court of Appeals for the District of Columbia, that the government will seek a postponement of these deadlines. No one expects that the new regs will be any more protective of U.S. workers than the old ones.

Stock presumably knows what he is writing about, but in the meantime it will be interesting to see if the Obama administration – which very much wants to continue, and even expand, the OPT program without interruption – can meet the interim deadline of Thursday.