After one week, the federal government has received nearly 3,000 comments about its proposal to expand the amount of time a foreign STEM student can work in the U.S. on a student visa. Not surprisingly, most comments are supporting the changes proposed by the Obama administration.
In a new set of regulations, the U.S. is seeking changes to what's called the Optional Practical Training (OPT) program after a federal court ruled in August that the government erred by not seeking public comment earlier.
The U.S. began accepting comments about the new rule on Oct. 19 and will continue to collect them through Nov. 18. They can be filed online at Regulations.gov.
The OPT program allows foreign students to work in the U.S. for 12 months on a student visa. But in 2008, President George W. Bush's administration added a 17-month extension for STEM (science, technology, engineering, and math) students, an extension that the Obama administration has also endorsed. There are more than 100,000 foreign students working on STEM extensions.
In her August ruling, federal Judge Ellen Huvelle, of the U.S. District Court in Washington, vacated the OPT extension, but gave the U.S. until Feb. 12, 2016, to set a replacement.
This revised OPT plan extends the 17-month extension to 24 months, or three years total, and increases oversight of the program. It also seeks the development of formal mentoring programs, wage protections for OPT workers and prohibitions against replacing U.S. workers.
The STEM extension had nothing to do with mentoring. The Bush administration sought it because H-1B demand, led by IT services companies, was exceeding the visa cap. This meant that if a foreign graduate of a U.S. university didn't get an H-1B visa before the OPT period ran out, there was a risk the graduate would be forced to leave the U.S. The OPT extension was, in effect, a work-around to congressional gridlock over the H-1B cap and immigration generally.
In one comment, Xi Tao, who said he is a computer science Ph.D. student, wrote that if the OPT becomes a one-year program without the extension, then you are either "lucky to get an H-1B or just go home." But with the proposed STEM extension, "I will have three years in total to evaluate my career and have the freedom to work for the country," he wrote.
Another commenter, Joseph Palos, wrote that he has a STEM degree from Cornell University, but has been struggling to find work. "Companies don't want to hire Americans and they abuse H1-B and OPT to hire cheap immobile labor instead of hiring anyone over the age of 35, especially in software or tech areas," he wrote.
Although the U.S. extended the OPT program to fix a problem with H-1B oversubscriptions, its regulatory revisions, including its greater emphasis on mentoring as part of the program, raises new questions.
Ron Hira, a public policy professor at Howard University, said bachelor's and master's degrees in STEM disciplines "are most commonly professional degrees, meaning that those graduates are able to hit-the-ground running as professionals."
Hira said there "is no justification to treat them as interns in need of further training."
"The duration of 'training' being proposed by the Obama administration has no basis in any theory, data, or analysis," Hira said. "It is pure fiction that someone with a master's degree in electrical engineering needs an additional three years to work as an intern to be a productive professional. Instead the duration seems to come out of thin-air, based purely on what the political types in the Obama White House believe that they can get through without facing significant opposition," Hira said.
"It's an over-reach to claim that someone who completes a master's degree in as little as 12 months needs three years interning -- at low or no pay in many cases -- to get further training," Hira said.
John Miano, the attorney representing the Washington Alliance of Technology Workers, which brought the OPT lawsuit, said that one of the problems with the proposed rule is that it effectively "requires employers and universities to engage in unlawful immigration status discrimination.
"The rule requires these organizations to set up mentoring programs for foreign graduates to work under OPT," Miano said, "However, there is no requirement that American graduates receive the same benefit."
Daniel Costa, the Economic Policy Institute's director of immigration law and policy research, said the worker protections included in the new rule "are so vague and deferential to employers that they will be virtually unenforceable in practice in any meaningful way."
There is also no hard or fast wage rule in this OPT proposal. The U.S. "is basically going to let the employers decide what the wage is for a similarly situated U.S. worker," with a similar wage paid to the OPT worker. "As long as employers just attest that they decided a wage was appropriate 'in good faith' then it's OK," he said.
Costa said instead of requiring a good faith effort to set an appropriate wage, "it would have been much easier to just require that a clear, legally defined prevailing wage be paid."
The student supporters of the OPT have a lot at stake, particularly if the court doesn't allow the U.S. to continue the STEM extension. They will likely fill the government's inbox with tens of thousands of comments before the comment period closes. An earlier White House petition drew more than 100,000 signatures.
"We invest thousands of dollars to earn degrees to have a better future," wrote Niharika Korada, in a submission in support of OPT. "Kindly do not take away that opportunity from us."
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