WASHINGTON ALLIANCE
OF TECHNOLOGY WORKERS V. U.S. DEPARTMENT OF HOMELAND SECURITY, et al,,
AND
NATIONAL ASSOCIATION OF MANUFACTURES, et al.
THE CASE
On October 25, 2019, the U.S. District Court for the
District of Colombia will receive an amicus brief for this case. [8] The
plaintiff is disputing international students (on F1 visas) participation in
optional practical training (O.P.T.) after they graduate due to the
"assertion that D.H.S. does not have statutory authority to create or
maintain any kind of post-completion O.P.T.". [1] O.P.T. allows 24 months
of work authorization after receiving a degree in the STEM fields, or 12 months
for all other degree programs. The lawsuit has been an on-going battle with
D.H.S. for 10 years. Due to policy changes in 2016, which increased work
authorization from 17 to 24 months, it allowed WashTech to renew a case against
the entirety of the O.P.T. program. [7] The dispute is over fear that “foreign
students participating in the O.P.T. program reduce job opportunities for U.S.
workers”. [2]
WHAT ARE THEY
DISPUTING
WashTech is arguing that D.H.S. regulations in 8 U.S.C. §
1101(a)(15)(F)(i) for admitting students into the U.S. have been ‘expanded’ and
outside of their statutory authority. [12] WashTech claims that “this
regulation expanded the statutory definition of student visa status by adding
practical training. [1]
WHAT IS A CFR
However, “The Code of Federal Regulations (C.F.R.) is the
codification of the general and permanent rules published in the Federal Register
by the executive departments and agencies of the Federal Government.” which
includes rules by D.H.S. in regards to F1 students [3] Specifically, 8 CFR
214.2(f)(10)(ii)(C)(7) which describes the policies for O.P.T. [11] D.H.S.
should be allowed to create regulations for O.P.T. since USCIS adjudicates the
requests. The Administrative Procedure Act of 1946 backs this up since it’s “to
improve the administration of justice by prescribing fair administrative
procedure’; and by other laws…established a process for public participation in
the rulemaking process by requiring executive agencies to issue proposed rules
and take public comments, and, in most cases, delay the effective date for 30
days or more. Publishing in the Federal Register provides constructive notice
of the rulemaking, the legal basis for the rulemaking, and changes made to the
Code of Federal Regulations (C.F.R.) by the rule.” [4]
CONCLUSION
CFR’s take the vague U.S. Code Title 8 regulation and specifies
in detail what F1 students can and can't do once they are admitted to the U.S. Since
USCIS adjudicates on behalf of D.H.S. immigration changes for F1 visa students then
it should be up to them to create regulations that coincide with the spirit of
the F1 visa. This is an important case to follow as it additionally has
economic consequences. [5][6]
QUESTIONS:
Should the University of Utah join this amicus brief?
Particularly since they joined the amicus brief against the 2018 unlawful
presence policy. [9] Why or why not?
If D.H.S. does not have statutory authority over specific
details within the Code of Federal Regulations then who should have authority
to create, monitor and regulate these laws for F1 visa holders?
I believe it is in the best interest of the University of Utah to join the amicus brief. If WASHTECH were to win their suit and DHS and USCIS which reviews and approves these applications are no longer able to interpret the CFR it could cause harm to the US in general and Universities nationwide. DHS was given authority over immigration in 2002 when it was established by then President Bush and passed by congress. They have had this power for the past 16 plus years. This would indicate the powers granted by the executive branch and confirmed by congress that they do have the authority by statute to interpret the CFR.
ReplyDeleteGoing back to the part why i think this lose of "power" would cause harm is it could roll back the view that tjis 1 -3 years of work opportunity to those who graduated from a U.S. institution would no longer exist. By taking this opportunity from F-1 visa holders we limit Universities ability to recruit students. This would not only drasticly hurt enrollment numbers but research. Many studnts choose to come to the U.S. due to this ability to get an education and ability to find employment after to recieve training in thier chosen field. WashTech is looking to remove the 2 extra years of work that only is granted to STEM (Science Technology and Match)
students. These students often stay as researchers and contribute right away to Universities and tech firms here in the US. The loss of this opportunity would hurt the U.S. economy buy taking out potential innovations.
So that was a rant my apologies...
I believe it should be DHS to continue to head the regulation of the F-1 student visas. They already have oversight as they are part of the executive branch and the Supreme court has ruled several times in favor of DHS and the executive branches power when it is in regards to immigration and immigration policy.
The loss of the US economy would be enormous. The one good thing is that the US Chamber of Commerce has been allowed to join the case in defense. Especially since there is doubt that the current administration would actually take up a large defense of this. This was in 2017, but, "the U.S. Chamber of Commerce was once again one of the most active groups in the Supreme Court this term. The chamber filed “amicus,” or friend-of-the-court, briefs in 15 cases. More impressive still is the chamber’s record: 11 wins and only three losses (one case remains to be decided)."[1] Hopefully that trend continues with the wins on this too. It will be interesting to see what happens since they say this is the 'most business-friendly court in nearly a century' and the case is against the US Chamber of Commerce (and others) and then a representation of 'America First' thought process. [1][2]
Delete[1]https://www.washingtonpost.com/news/posteverything/wp/2017/06/26/why-big-business-keeps-winning-at-the-supreme-court/?noredirect=on
[2] https://fpif.org/most-americans-actually-reject-trumps-america-first-policy/
Yes, the University of Utah should join the amicus brief. International student recruitment is already down (1). That translates into a shrinking pool of funds from tuition, research and alumni donations for universities. The O.P.T. program is a key component in educational programs. The DHS's statutory authority was created in the Homeland Security Act. The Homeland Security Act in 2002 gave the DHS authority to "issue regulations with respect to, administer, and enforce the provisions of such Act, and of all other immigration and nationality laws,(2). Before that, the DOS and the Secretary of State took care of things. But, that was before 9-11. The DHS is now responsible for formulating regulations on visas. WashTech doesn't agree but they don't want a substitute either. They would not be happy if the regulations went back to the DOS. Their complaint is regulations but what they really want is "nobody taking their jobs'". I hope the U joins. They have until October 25 (3).
ReplyDelete(1) https://www.politico.com/story/2018/11/13/colleges-foreign-students-trump-985259
(2) § 428(c) Homeland Security Act of 2002(P.L. 107-296)
(3) https://www.nafsa.org/professional-resources/browse-by-interest/stem-opt-washtech-litigation
I think it's an interesting viewpoint to consider the perspective of loss of revenue to the University. There is a lot of research on how this would impact jobs in Utah, and the US, if we didn't have international students, or their participation in jobs working with tech companies after graduation. The other thing to remember is that H1B visas are very hard to receive with a cap on the number of people who are eligible to apply for this. Often taking multiple times to apply and being denied, so then it again creates an additional burden and reinforcement that F1 students aren't abundantly taking American jobs like WashTech attempts to show. Once students complete their STEM OPT they then run up against the daunting application process (and a big IF their employer will apply for them) of the H1B. It seems hard fetched to me to think F1 students are rapidly taking over American jobs in this way.
DeleteI am going to preface my response by admitting it will be biased and based more on emotion than fact. I came to the United States as an F1 student. I entered the US approximately a month before 9/11. Before coming to the USA, I had done some research, and one of the attractive points to getting educated in the USA was the opportunity to participate in the OPT program. Unlike a lot of other countries, the USA offered OPT. Most employers highly value OPT experience in my home country, and I even knew several people who were able to turn the OPT into an H1B visa. A month after my entry into the US, 9/11 happened, and things changed drastically.
ReplyDeleteMost of the pre 9/11 graduates experience was very different; all they had to do was stay enrolled in school. After 9/11, things got much harder for students. When I saw this article, it touched a nerve. Especially since I knew what sacrifice F1 students are making to attend US universities. For most of these kids, getting a US education is their only way out of poverty. It’s usually a sacrifice made by the entire family. They have given so much to be here.
Consequently, they are very diligent at earning an education that they can depend on when they return to their home country. These are diligent, hardworking, and intelligent people. There are not here to game the system. Placing such obstacles in their path of pursuit for higher education is unusually cruel. Therefore, I believe the University of Utah should join the Amicus brief. Frankly, I think any Institution of Higher Learning that recruits international students should join the amicus brief. These students contribute insurmountably to the US education system. According to NASFA, F1 students provided 39 billion between 2017 to 2018 academic year. University of Utah reports having a total of 2402 international students.
As for the second question, USCIS should have authority over the specific details within the CFR. USCIS has the working experience and the expertise to create, monitor, and regulate laws for F1 visa holders. DHS motives are suspicious, especially after the turnover in its leadership. It has become apparent the current administration is determined to limit emigration by any means necessary. The action by DHS seems to be part of that bigger picture in the Trump migration plan. By slapping three year and ten year bans they will discourage the students from attending schools in the US.