Chuck Grassley opposes DHS move to extend OPT to 6 years for students on F1 visas

Read text of letter.

By Sujeet RajanChuck-Grassley

NEW YORK: The Senate Judiciary Chairman Chuck Grassley (R-IA) has come out strongly against the proposed Department of Homeland Security (DHS) rules to extend work authorization period to international students on F1 visas to six years.

Read the earlier story in The American Bazaar on DHS plans to extend F1 visa OPT time frame to six years:

http://www.americanbazaaronline.com/2015/06/09/students-on-f1-visas-may-be-allowed-to-work-for-6-years-in-the-us-like-h-1b-visa-holders/

Calling it a ‘shadow’ guest worker program, which would surreptitiously be another H-1B visa program in disguise, Grassley in a letter to the DHS, expressed his outrage and concern that the move would not only undercut American jobs and wages, but also lead to exploitation of students.

Here’s the text of the letter:

Dear Secretary Johnson:

On May 28, 2015, Senate Judiciary Committee staff received a briefing from officials of U.S. Immigration and Customs Enforcement (ICE) about proposed rules affecting foreign students.  I’m concerned about the Department’s plans to expand the Optional Practical Training (OPT) program, and urge you to reconsider expanding the program without adding adequate controls and safeguards.

Currently, Department regulations authorize an F-1 student who has attended an ICE-certified college, university, conservatory, or seminary on a full-time basis for at least one academic year to receive up to 12 months of employment authorization per education level.[1]  In 2008, the Department published regulations authorizing a 17-month extension of the OPT period for foreign graduates of U.S. degree programs in a science, technology, engineering, or mathematical (STEM) discipline.[2]  The 2008 OPT-STEM regulation is currently the subject of a lawsuit by an association of American tech workers challenging its legality.[3]

I understand, based on the May 28 briefing, that the Department is moving forward with new regulations on OPT—

(1)   allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and

(2)   authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

The proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office (GAO) report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the Department was not adequately overseeing it.

Putting aside the legality of the OPT program, which I have questioned, I am greatly troubled by the proposal to lengthen to a full two years the OPT-STEM extension period.  Doing that would authorize foreign STEM students to remain working in the United States after graduation, potentially for a total of up to six years, completely outside of the nonimmigrant employment-based visa programs, and their associated worker protections, established by Congress.  As the plaintiffs in the Washington Tech Alliance lawsuit  state in their complaint: “DHS’s OPT regulations deliberately circumvent the statutory caps on H-1B visas … by allowing aliens who are unable to get an H-1B visa to remain in the United States and work on an F-1 student visa instead.”[5]  By increasing the total amount of time a foreign student may work in OPT after each degree to 3 years  – the same amount of time that an H-1B visa would be valid – there is little doubt  that the Administration has administratively established  a de facto shadow H-1B program, in violation of Congressional intent. OPT is meant to be a temporary training program, not as a bridge to a longer-term work visa or a way for employers to hire cheaper foreign labor in lieu of Americans or foreign workers in visa programs with prevailing wage requirements.

The GAO found numerous problems with the OPT program.  Their report found that foreign students, sometimes with help of designated school officials, were abusing the program to acquire unauthorized work.  It also found that the Department was not adequately overseeing the program and did not have adequate monitoring mechanisms in place to ensure program compliance.  In fact, it found that the Department was not tracking vital information that was necessary to ensure schools and students were following ICE regulations, such as accruing too much unemployment, completing the program within a certain amount of time, or ensuring students were engaging in work that was in their field of study.

The report also exposed a major national security problem in that the Department does not know where tens of thousands of foreign students are living and working in the country.  The GAO said that “ICE cannot fully ensure foreign students working under optional practical training are maintaining their legal status in the United States.”[6]   The GAO report also found that ICE does not consistently collect information as to the type and timing of foreign students’ employment, thus leaving the agency in the dark as to where these students are and for whom they might be working.

Instead of addressing the weaknesses of the OPT program, or addressing the legitimate criticisms of the OPT-STEM program raised in the Washington Tech Alliance lawsuit, it appears the agency is intent on doubling down on the misguided policies that triggered the GAO report and lawsuit in the first place.

After the GAO issued its report in 2014, I wrote to you and urged you to consider issuing a moratorium on OPT approvals until the program was secured and students could be located.  I also asked that the Department swiftly move to implement the GAO’s recommendations.  The Director of U.S. Citizenship and Immigration Services, Alejandro Mayorkas, responded on your behalf to my letter.  He said the Department concurred with the recommendations and was working on them.  I would like to know the status of each GAO recommendation, whether they have been fully implemented, and if not, why not.  I also strongly urge the Department to undertake additional reforms to increase oversight and improve compliance monitoring beyond what the GAO has recommended.  I want to know what specific actions the Department will take to locate students, rein in fraud and abuse, and ensure compliance.

While I realize the agency is also considering requiring certifications that the employers will not displace U.S. workers, there does not seem to be any certification contemplated that the employer has recruited or tried to find U.S. workers who may be at least equally qualified as the foreign students.  Nor will the regulations, as proposed, require substantive wage requirements in order to ensure that employers are not exploiting foreign students and thereby driving wages down for U.S. workers.

I urge you to reconsider the proposed rule for STEM students, and at a minimum, address the underlying issues with the standard OPT program.  If you do not have the appetite to cease the program altogether, as I have suggested in the past, I would encourage the Department to, at a minimum: 1) increase oversight and monitoring compliance by schools as well as foreign students and those who employ them; 2) ensure that employment is secured before any OPT is granted; 3) ensure that foreign students report any changes in employment to designated school officials and be held accountable if they do not; 4) ensure that designated school officials are notifying the Department about the whereabouts of their students, including the employer’s name and location and be held accountable if they do not; 5) require that employers who hire any foreign student with OPT be enrolled in E-Verify; 6) require employers to pay a reasonable wage to foreign students with OPT; 7) require employers of students with OPT to pay a fee equal to the wage savings from not having to pay FICA payroll taxes for OPT workers, in order to level the playing field between OPT and American workers; 8) more closely bind OPT training to the student’s academic course of study; 9) establish avenues for foreign students to report employer abuse; and 10) place a numerical cap on the number of foreign students who may receive a work authorization.

In addition to providing me with updates on the GAO recommendations and any other oversight measures undertaken, I request your response to each of the ten recommendations I propose above and why the Department would not include them in the regulations being considered.

Please send a response to my questions and concerns no later than June 22, 2015. I appreciate the consideration of your views and look forward to your reply.

Sincerely,

Charles E. Grassley

Chairman

Senate Judiciary Committee.

16 Comments

  1. 6 years? OPT barely pay any income tax as it is… then companies will abuse that program more than h1b in the future

    • you are wrong, Every single person earning in US need to pay Tax….

    • "STIPULATED"

      The only taxes not paid by individuals on OPT are social security and Medicare, worst most find it extremely difficult to get a job during the year their permit is granted for; so a very good move extending such to 6 years.

    • Support Immigration

      No, you are wrong, Everyone pays taxes as long as they have income in US. For OPT students, if they stay in US for less than 5 years, they don’t need to pay Social Security and Medicare, but they are NOT qualified for Standard Deduction, either. After 5 years, they pay exactly the same amount as American do. No matter which one, they still need to pay the same amount of Federal Taxes and State Taxes(if any).

  2. ap selvan

    thanks for your comments.i request you to read what i was trying to convey. i am not talking about average university and an average student. what about students from best of us universities? any weightage given for grant of H1b visas? pse reconcile thanks

  3. Naveen Xavier

    You crying too much like other americans . Also you must understand america is land immigrants .. then why you crying too much

  4. Naveen Xavier

    Yeah thats good explanation

  5. Naveen Xavier

    They are best compare with …. american works . American workers doesnt know anything . They just sitting and relaxing . Im wrking with american workers . They dont know even how to write proper english haha….

  6. Mr. Grassley supposed to get reply on or before 22nd June,2015…Did he get reply from DHS about his 10 questions?

  7. Did he get any reply from DHS about this letter?..he supposed to get it on or before 22nd June.

  8. i request the chairman senate judiciary committee to reconsider his views from the student perspective. Any overseas student of STEM going to canada , germany or australia easily get their PR status after few years of stay. But unfortunately the best talents from overseas studying in best of the usa universities are subjected to decide their fate by a lottery system which is illogical and average talents from some companies who never chose usa as their destination are thrust upon HIB visas if the lottery machine decides so. Are we deciding the fate students who chose to study and serve in usa by lottery irrespective of merit in this era ? where is the difference between a foreign worker who studied in usa and a foreign worker who was brought by outsourcing companies? Since the ratio between no of applicants and avl cap ceiling is alaming , something needs to be done DHS of USA to salvage the dent it has caused to talents of STEM field and the OPT extn upto 6 years is the right and appropriate move.US administration should exercise all options to get this implemented at the shortest possible time and if there is no guarantee for a permanent stay for overseas talents in usa , it will witness exodus of talents to European counties in future, thanks

    • You are missing the point.. The entire H-1B system is a scam; the US has enugh number of STEM workers and dont need any more unless they are really the best and brightest.. So many international students graduate from schools and they certainly are not the best and brightest and they don’t deserve any special treatment either. Most of them are average.

  9. Well, I am glad that this lousy Obama administration is coming to an end.. I voted for this guy twice because he said he will bring change, and I though he meant for Americans!! Turns out he works for other countries and theit needs…

    • StuartMill

      Agreed! Who could possibly have thought the President of the party of labor detested American workers so much? Cloistered and benefiting from huge money from IT, the President has given up on US labor. It is possibly the saddest story of the presidency and Hillary looks no better.

      • BS. Why don’t you get your education and compete with the actual talent out there rather than cry about the other nationals stealing your jobs. Talent gets recognition. No President favored a dumb other national guy to a talented American fit for the role. No one asked for a job for every one who graduates with a STEM major. Give them a fair chance to compete. Let the employers decide if they want some skilled individual. Not a random luck machine.

  10. Ron Gotcher

    Grassley is clearly math challenged. Twenty four plus twenty four plus twelve is sixty months. That’s five years, not six. I guess that’s how they teach math in Iowa. I gave up on every getting anything accurate out of Grassley years ago.

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