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 students studying STEM (science, technology, engineering and math) subject matter -- 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 STEM extension but gave the federal government until Feb. 12, 2016, to set a replacement.
This revised OPT plan increases the 17-month STEM extension to 24 months -- meaning foreign STEM students would be able to work in the U.S. for a total of 36 months -- 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 demand for H-1B visas, led by IT services companies, was exceeding the annual cap on such visas. That 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 that the individual would be forced to leave the U.S. The OPT STEM extension was, in effect, a workaround to congressional gridlock that led to inaction on changes to the H-1B cap and on immigration policies in general.
In one comment, Xi Tao, who said he is a computer science Ph.D. student, wrote that if the OPT program is limited to one year of work with no extension, then foreign students will either be "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 [H-1B] 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 for STEM students to address the H-1B supply-and-demand problem, the regulatory revisions, including the increase in emphasis on mentoring as part of the program, raise 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."
"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-and-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, Costa said. "As long as employers just attest that they decided a wage was appropriate 'in good faith' then it's OK."
Instead of requiring a good faith effort to set an appropriate wage, Costa said, "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."