Even the most casual followers of U.S. politics know well the insidious practice of congressional lobbying: the finely-honed art of outside interests to press their agenda on Congress through financial contributions, solicitation-campaigns, and even soft promises of future jobs.
Far fewer, however, know the practice of agency lobbying wherein corporate “government relations” execs and top government bureaucrats engage over “stakeholder meetings,” “listening sessions,” and even off-hours social functions, all for the same private ends. On Feb. 20, my public interest law firm will be in D.C. federal court fighting what is perhaps the text book case of what the latter looks like.
Borne out of a 2007 Georgetown dinner party held for top officials at DHS and Microsoft, the so-called “Optional Practical Training” (OPT) program for foreign science, technology, engineering and mathematics (STEM) students is a massive corporate giveaway for the tech industry. Created solely out of regulation in 1992, then unilaterally expanded into the STEM fields in 2008, OPT allows foreign STEM grads from U.S. colleges to stay and work a full three years after they’ve graduated, all while under a student-visa status. As intended, the DHS program, which now covers hundreds of thousands of these foreign workers, has created a giant low-wage supply of guestworkers for the IT sector. And without any input from Congress, it’s as unlawful as it is destructive to American tech grads and workers.
Big Tech corporates covet foreign OPT workers, not for being the “best and brightest,” but for being cheap and docile; an open secret known to all U.S. workers in the industry, especially our tech-union plaintiffs. Similar for the university lobby, they want foreign students less for being outstanding geniuses and more for being “profit centers” who generally pay far higher tuition rates than domestic students.
OPT’s tech-industry emphasis makes it nearly identical to the well-known H-1B program, and it’s almost as big. According to DHS data, the amount of “student” workers covered by the program is around 330,000, or just under half the 800,000 young Americans who graduate with STEM degrees every year. One big difference with H-1B, however, is that OPT is completely uncapped and has zero meaningful U.S. labor protections, such as the H-1B employer requirement that they pay guestworkers a prevailing wage. All that’s provided for in DHS regulations is that OPT employers merely sign a “statement of intent” that they’ll try and hire Americans first; a non-standard, say labor advocates like the AFL-CIO.
On top of being uncapped and lacking basic labor protections, OPT gives companies another large incentive to discriminate in favor of foreign workers. When Congress created the student visa in the 1950s they never allowed or intended foreign students to stay past their graduation and work. Those who could show hardship, however, were allowed to find limited on-campus work and, understandably, they were carved out from having to pay payroll taxes. Now, however, with hundreds of thousands of “students” working in the IT sector many years after they’ve graduated, this payroll-exemption bizarrely still stands. As a result, companies get a giant 7 percent discount for every OPT worker they hire, amounting to around a billion dollars in savings annually.
Not only does OPT have zero congressional authority, it was actually designed to circumvent Congress, specifically the annual H-1B-cap of 65,000 guest workers they put in place in 2004. We know this is a fact since DHS said as much in its 2008 rulemaking when it reasoned that OPT had to be dramatically expanded into the IT field due to “[t]he inability of U.S. employers… to obtain H-1B status for highly skilled foreign students and foreign nonimmigrant workers” and the “competitive disadvantage” this imposed on U.S. tech companies.
Apart from the fact that a quarter of a million U.S. STEM grads and professionals are not currently occupying a STEM-based job, unfortunately for DHS, the agency isn’t allowed to create new immigration programs out of whole cloth. Only Congress can do this, as we’re learning the hard way this week. By letting hundreds of thousands of foreign “students” to enter the labor market years after they’ve graduated, DHS’s unilateral move has made, and continues to make under President Trump, a mockery not only of American labor, but Congress and our immigration laws as well. Hopefully on Tuesday our three-judge panel in the court of appeals will agree.
Dale L. Wilcox is executive director and general counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.
Also published at: Dale L. Wilcox, Lax immigration policies a disservice to America's STEM professionals, The Hill, February 14, 2018