AFL-CIO says student visa extension hurts tech wages

Labor group warns of downward pressure; supporters see problems with OPT extension

WASHINGTON -- The Bush administration's decision to allow foreign students to work in the U.S. for up to 29 months before getting an H-1B visa faces opposition from the AFL-CIO. The largest labor organization in the U.S. labeled the move a backdoor H-1B cap increase that could lower wages for U.S. tech workers, according to comments about the rule change made available this week by the government.

The U.S. Department of Homeland Security (DHS) made the "emergency" rule change earlier this year to deal with the limits imposed by the 85,000 slot H-1B cap. The government received 163,000 applications this year for those visas. What the DHS did was extend the Optional Practical Training (OPT) provision that previously allowed students to work after graduation for one year on their student visa. Although the change is a done deal under the agency's "emergency" rule-making provisions, the federal government still had to seek comments.

Ana Avendano, director of the AFL-CIO's immigrant worker program, wrote, in comments posted Thursday on Regulations.gov, that "by extending the OPT period and work authorization period, the interim final rule turns a student visa program into a labor market program, and essentially lifts the cap that Congress has placed on the H-1B program."

Moreover, Avendano said the rule change "allows employers to completely bypass" any of the protections in the H-1B program that prevent employers, for instance, from using foreign workers to break a strike. Moreover, students working on OPT won't have to be paid the prevailing wage as required under the H-1B program. An OPT employee could, theoretically, work for minimum wage, she wrote.

"Given that DHS's own estimates are that tens of thousands of OPT workers will soon be in the market, this is certain to exert downward pressure on wages and other working conditions," wrote Avendano.

Opposition groups, including the Programmers Guild, are seeking a temporary injunction in U.S. District Court in Newark, N.J., against the rule change. They are also arguing that the decision to extend the OPT time period encourages some employers to advertise specifically for recent graduates, helping to skew the market against U.S. tech workers. In court papers, they included ads from online job sites Dice and Monster from employers encouraging OPT workers to apply.

By contrast, groups and institutions backing the OPT extension said that the rule change is too restrictive because it limits the degrees it applies to and excludes some IT training programs. In particular, they cited its requirement that U.S. employers participate in E-Verify, the government's electronic verification program for immigrants.

Mark Hallett, director of international student and scholar services at Colorado State University, called the E-Verify requirement a "deal killer" because most employers aren't participating in the verification program.

"This requirement will virtually extinguish all hope for students wishing to avail themselves of the OPT extension benefit because most employers do not plan to voluntarily join E-Verify," wrote Hallett in a letter, one of dozens posted Thursday.

The Securities Industry and Financial Markets Association voiced a similar concern. "Less than 1% of U.S. employers are currently enrolled in E-Verify, so the vast majority of employers wishing to retain or hire" an OTP graduate "will not already be enrolled in the program," wrote David Strongin, managing director of the association.

E-Verify remains voluntary, but there are concerns about the accuracy of the verification process, the potential for error and the system's ability to handle large numbers of employers.

Although the AFL-CIO opposes the rule, the largest business group in the U.S., the Chamber of Commerce, does not. Although it had issues with some of the provisions of the rule, including the E-Verify requirement, Randel K. Johnson, vice president of labor immigration and employee benefits, and several others who signed the letter, wrote: "The Chamber believes that attracting the world's most talented people to our colleges and universities, and then allowing them to stay for some time to work and be trained by U.S. employers, is paramount to our nation's competitiveness in the global economy."

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