IRLI Files Public Comment Opposing DHS’s Proposed Rule to Expand Its Unlawful OPT Program

November 18, 2015

Making Government put American Students and Workers before Big Tech and the University Industry

November 18, 2015

(Washington, D.C.) – Yesterday, the Immigration Reform Law Institute (IRLI) submitted a public comment to the Department of Homeland Security (DHS) in response to its recently proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and CapGap Relief for All Eligible F-1 Students.” The proposed rule will allow foreign STEM (Science, Technology, Engineering and Math) degree-holders to remain in the country and work on their “student” visas for as much as 3 years after they graduate from a U.S. school, thereby bypassing American worker protections built into existing law. DHS was forced to give notice and solicit public comment after IRLI successfully challenged in federal court DHS’s prior Optional Practical Training (OPT) extension rules as violative of the Administrative Procedure Act. In the case (Washington Alliance of Technology Workers v. USDHS (Civil Action No. 14-529)), in which IRLI is representing displaced American computer programmers, a federal judge gave the Obama Administration until February to issue a new rule.

In its public comment regarding the proposed rule, IRLI concluded that the rule is unlawful because, (1) Congress delegated authority to define periods of employment for student visa holders to the Treasury Department, not DHS; (2) the Immigration and Nationality Act (INA) does not delegate unlimited agency authority over the conditions of admission for nonimmigrants to DHS, but instead clearly requires that an alien leave the United States once the terms of temporary admission have been completed, such as a student visa holder graduating from school, and the INA certainly does not give DHS the authority to grant work permits to whomever it desires; (3) the rule is procedurally and substantively arbitrary and capricious; and (4) the OPT program described in the proposed rule would impermissibly facilitate prohibited employment-related discrimination on the basis of alienage and national origin.

Dale L. Wilcox, IRLI’s Executive Director, commented, “DHS’s proposed rule violates both federal law and, to the extent it was a gift to the trillion-dollar tech industry, our most cherished democratic principles. Wilcox continued, “We would like to thank the thousands of patriotic Americans who submitted comments critical of this unlawful and unjust rule and we wish to assure them that we will continue the fight for the American worker and hold the Obama Administration accountable to the rule of law.”

IRLI’s comment can be found here.