President Obama has rightfully received a lot of criticism for abrogating his duty to uphold immigration law, and for his total disregard for the plight of American workers who are harmed by excessive immigration. It is true that Obama has abused executive power, but the trail was blazed for him over the course of many years by previous administrations. President Obama has only been more brazen in his flouting of immigration laws, encouraged by a Congress that has shown no inclination to guard its prerogative powers.
Optional Practical Training (OPT) exemplifies the long-standing threat to the integrity of the U.S. immigration system, as successive presidents have shown cavalier disregard for both the letter and the spirit of immigration law – and have gotten away with it. OPT was not created by Congress but came about entirely through regulations promulgated by the executive branch (Senate testimony of John Miano, representing the Washington Alliance of Technology Workers, is an excellent source of information on OPT’s history). It is, in practice, a violation of statutory law regulating the terms of an F-1 student visa. According to law, upon graduation an F-1 student must leave the United States within 60 days and cannot legally work during that time.
In 1992, during President George H.W. Bush’s term, the Immigration and Naturalization Service (INS), without giving notice, or the opportunity for public comment, created the OPT program allowing all foreign graduates the opportunity to work in the U.S. for up to twelve months if the school which they had attended certified that the work was “directly related to an F-1 student’s major area of study.” The rationale by INS that OPT was permissible under the law was flimsy at best, given that an F-1 visa holder who is no longer enrolled in an accredited institution is no longer a student and is prohibited by law from working in the United States, no matter how “practical” that training is.
When, in 2002, the Customs and Immigration Services (USCIS) under President George W. Bush allowed graduates to work for twelve months without school certification that the job was related to a previous field of study, any pretense that OPT was rooted in statute was abandoned; as was any hope that the program would not be abused by employers seeking lower cost foreign workers. In 2008, again under President Bush, USCIS extended the period that gradates with certain STEM degrees could work by another 17 months, for a total of 29 months. In 2011, the Obama Administration greatly expanded the number of majors that could qualify for the 29 month OPT to over 300 degree fields, including Animal Breeding, Social Psychology, and Data Processing.
OPT has long served as a way for employers to work around caps on guest-workers, since Congress has failed to give in to employers demands that the number of annual H-1B visa holders admitted annually be raised exponentially. OPT workers represent an attractive option to employers since these foreign graduates, unlike their American counterparts, are exempt from payroll taxes because they are still classified as “students” by DHS. Even worse, OPT has no provisions to protect qualified American workers from being displaced, or wage requirements for hiring OPT workers –which is what leads to the displacement of American workers, or Americans not being hired in the first place.
With immigration “reform” stymied for now in Congress (Marco Rubio’s failed Gang of Eight bill would have formally recognized the OPT program without regulating its operation, and would have tripled annual H-1B admissions), President Obama and members of both parties in Congress in are looking for ways to circumvent existing law to being in more foreign workers. The Department of Homeland Security has recently proposed a rule to extend OPT for STEM graduates even longer, up to 3 years, in order to do just that.
OPT is not some obscure program that bends the rules for a few highly-qualified foreign students. According to the Government Accountability Office, about 100,000 foreign graduates a year are awarded OPT status (about 20,000 with the STEM extension) and then go on to compete with similarly qualified American job seekers. Through a Freedom of Information Act request, the Center for Immigration Studies confirmed these numbers, finding that 497,274 OPT work authorizations were granted by DHS between 2009 and 2013, and that $4 billion of potential contributions to the Social Security and Medicare trust funds were lost. Even some who believe that OPT began with good intentions question its legality, and do not dispute that it is harmful to American workers. Daniel Costa of the Economic Policy Institute argues that the OPT results in “lower wages by increasing the number of underpaid and exploited foreign workers in the [tech] industry.
There is also important ongoing litigation threatening the continuation OPT program. The Immigration Reform Law Institute (IRLI) is challenging the executive’s branch authority to grant and regulate work authorization to to F-1 visa holders without Congressional approval. One of the outcomes of the legal action taken by IRLI is that DHS is now allowing comments to be made on its proposed extension of OPT, after a federal court ruling in favor of a union of tech workers challenging, among other things, DHS’ rule making process (A good synopsis of the ongoing legal battle can be found here.)
With attention now on the effect guest-worker programs are having on American workers, it is a good time to expose the OPT abuses. It is important that DHS hears from concerned Americans about why the program should not be extended. Let them know why OPT is bad for American workers and an affront to the integrity of out immigration system.ERIC RUARK is the Director of Research for NumbersUSA
Updated: Thu, Nov 19th 2015 @ 11:30am EST