CWA Suit Against OPT Extension Advances

In my last post, I discussed the foreign tech worker provisions in President Obama’s recently announced plan for executive action, part of which involve the Optional Practical Training (OPT) part of the F-1 student visa.  OPT may turn out to be a key feature in terms of the ultimate impact of Obama’s actions.  I explain this here, and report some news on the lawsuit brought by CWA.

OPT was designed (back in 1947, apparently) to supplement a foreign student’s book learning with practical work experience.  For years, the policy was to allow the student 12 months of such training before returning home.  During the George W. Bush administration, that period was extended to 29 months for STEM students, and Obama is planning to extend it again, possibly to 48 months.  (I erroneously stated in my last post that the statutory period is 12 months, but it turns out that that was simply a regulation, as was the OPT program itself, according to an immigration law expert who contacted me.  In other words, OPT was originally created by the executive branch in the first place, out of whole cloth.)

The original intent of OPT was to strengthen the foreign student’s ability to help his home country, typically in the Third World.  I’ve known about OPT since the late 1980s, when I served as faculty adviser to graduate students in my department.  When students graduated and applied for OPT, I was actually required to write a paragraph in their application form, explaining how OPT would help the student contribute to his home country.

In recent years, though, OPT has been used to circumvent the H-1B work visa cap, as openly stated by the government.  This is the motivation for the time extensions.  There was a lawsuit filed in 2008 against the first extension, which was rejected on grounds of standing.  The current lawsuit, however, recently had standing established for most of the counts in the suit.  Among other things, the judge pointed out that the government itself said that the extension to 29 months added tens of thousands of IT workers to the labor pool, presumably with an adverse impact on American workers.  I must add, as always, that the impact is especially heavy on older American workers, i.e. those over age 35, since the OPT workers are overwhelmingly young.

In my view, there has been much written in the last few days about OPT that is misleading or dangerously irrelevant, such as in this Washington Post article.  Though it is correct that OPT does not require the employer to pay prevailing wage, the fact that OPT workers are fully mobile limits abuse in that sense.  And the notion that prevailing wage affords protection for American workers is a joke anyway, as I’ve explained before; that wage value is typically well below the actual market value of workers similar to the given foreign worker.

I also strongly disagree with the emphasis in the article on the loose oversight of the OPT program, at least in economic terms.  Foreign workers with degrees from fly-by-night schools are not competitive with American graduates of real colleges and universities.  I view focus on the “less real” schools as a dangerous distraction away from the core issues, just like the unwarranted emphasis on the Indian bodyshops regarding H-1B.  As I’ve explained before, these distractions are going to come back to bite the activist critics of foreign tech worker programs.

Note carefully another point I’ve made before:  Even though computer industry employers are concentrating on hiring the new college graduates (both domestic and foreign), in order to get a good job the student must generally have gotten internship experience during her college years.  Well, guess what?  OPT covers that too; a foreign student can use part of the OPT time for working as an intern during school, thus competing with American students for hard-to-get internshis.  So there you see further harm to Americans.

Hopefully the press will give good coverage now to the CWA suit.  Now that the Obama people can’t argue so much on procedural grounds anymore, they’ll have to actually address the core issue of the case itself — the negative impact of OPT on U.S. citizens and residents.  It will be interesting to see what arguments the administration can come up with.  Judging from the White House report on the projected economic impact of Obama’s executive action, the administration may cite the work of my UC Davis colleague, economics professor Giovanni Peri.

And that report will be the subject of my next post.  The report is one of the most blatantly biased government documents I’ve ever read, dramatically raising the bar for the definition of chutzpah.  Stay tuned.

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