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Law360 (June 4, 2020, 9:45 PM EDT) -- The Trump administration is soon expected to announce restrictions on temporary visa programs that may affect international student graduates, but those restrictions may be vulnerable to court challenges while hindering the country's economic recovery.
A proclamation from President Donald Trump in April instructed administration officials to review nonimmigrant visa programs and make recommendations within 30 days to "stimulate the United States economy."
Acting Homeland Security Secretary Chad Wolf has indicated that optional practical training, or OPT, which allows noncitizens who graduate from an American university to work in the U.S. for up to three years, could be on the chopping block, prompting pushback from industry leaders who say even a temporary suspension to the program could quell innovation and economic growth.
"I believe that a healthy infusion of foreign professional talent is critical to the competitive success of the United States," said Andrew Greenfield, a managing partner at Fragomen, Del Rey, Bernsen & Loewy LLP. "If this flow of foreign talent is truncated, we will answer for it in a very negative way down the road."
The prospect of a rollback to OPT has businesses and politicians up in arms, dividing the Republican Party and pitting industry interests against the party's restrictionist faction.
Businesses have long supported the program, which was established in the mid-20th century and expanded under President George W. Bush to give STEM graduates additional years of work authorization after graduation. In its current form, all graduates get a one-year work permit, and graduates with degrees in science, technology, engineering and mathematics may extend their permit for two extra years.
In November, dozens of companies and industry associations including eBay Inc., Facebook Inc., EY, Microsoft Corp., Airbnb Inc. and Apple Inc. voiced their support for OPT in a brief filed in an ongoing legal challenge to OPT.
The companies claimed they are "facing a sustained scarcity of STEM-trained workers in the United States" and that the OPT program, as well as the STEM extension, are "critical to addressing that deficit."
The program is also key to help universities recruit foreign students, who must pay full tuition, with countries like Canada offering more robust paths to permanent residency for recent graduates to entice foreign talent.
Ending the OPT program would likely hardest hit smaller and state universities with less name recognition, which may struggle to attract students from overseas without any promise of a work permit, according to William A. Stock of Klasko Immigration Law Partners LLP, a past president of the American Immigration Lawyers Association.
The American Council on Education sent a letter last month urging the White House to include it in discussions surrounding the program, emphasizing the "importance of international students and their positive impact on the U.S. economy." According to 2018 data collected by NAFSA: Association of International Educators, international students at colleges and universities contributed $39 billion to the economy.
These business interests have drawn some Republicans to advocate for the program.
In a Tuesday letter sent to Wolf and Secretary of State Mike Pompeo, 21 House Republicans called for the protection of those interests and asked the administration to clarify that the program will remain "fully intact so we send the right messages abroad about the U.S. as an attractive destination for international students."
"As countries like Canada, the United Kingdom, China and Australia bolster immigration policies to attract and retain international students, the last thing our nation should do in this area is make ourselves less competitive by weakening OPT," they wrote.
Yet a month before, a group of prominent Republican senators — Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa and Josh Hawley of Missouri — made the opposite call, asking Trump in a letter to pause the postgraduate program for at least 60 days to protect American jobs.
"There is certainly no reason to allow foreign students to stay for three additional years just to take jobs that would otherwise go to unemployed Americans as our economy recovers," they wrote.
This position has earned the backing of immigration restrictionist groups like the Center for Immigration Studies and the Federation for American Immigration Reform, which have long accused the OPT program of taking American jobs.
Last month, more than two dozen chapters of College Republicans teamed up with FAIR to urge Trump to suspend the OPT and H-1B visa programs to make more room for this year's American college seniors graduating into an economic recession.
This forces the administration into a "balancing act" between those competing interests, said Laura Foote Reiff, who co-chairs Greenberg Traurig LLP's business immigration and compliance practice.
"There's a lot of balancing that needs to go on on how this could impact business, how it could impact universities, even the economy in the long run," she said.
Immigration attorneys have also rebutted some of the economic concerns raised by restrictionist groups, telling Law360 that their clients who hire OPT graduates need those workers to fill jobs that U.S. citizens can't, particularly in STEM roles.
Justifying immigration restrictions as a solution to U.S. unemployment is a "red herring," said Klasko Immigration's Stock.
"It's being used as the excuse for doing this now," he said.
He noted that there's little overlap between the types of jobs that OPT students are filling, such as engineering and technology, and the jobs that have been lost as a result of the pandemic, which largely affects the service industry.
Of the roughly 20 million U.S. jobs lost in April, 7.7 million were in the hospitality and leisure sectors, including restaurants, bars and hotels.
"It's apples and oranges," said Diane Hernandez, an immigration attorney at Hall Estill. "The idea that, 'Let's suspend these programs because we want to get our American citizens back to work,' it sounds good, but these are not the kinds of jobs that most of the unemployed Americans are even qualified for."
Attorneys have also questioned the administration's legal grounds to implement such measures.
In a purported effort to protect U.S. workers, Trump relied on his authority to suspend the entry of foreign nationals who would be "detrimental" to the nation's interests, a provision of the Immigration and Nationality Act called 212(f), when he issued his order blocking some noncitizens from coming to the U.S. on new green cards.
But 212(f) only applies to individuals outside the U.S., not to people already here, so the administration couldn't apply the provision to the many graduating students who stay in the U.S. while applying for their OPT extensions.
According to David Ware, an immigration lawyer at Ware Immigration who specializes in student visa issues, any suspension or pause of the program would likely have to come as a regulation instead. He predicted that the administration would issue it as an interim final rule, allowing it to bypass the notice-and-comment period until after the rule takes effect.
Such a suspension might be perceived favorably by Trump's base, "while not infuriating major corporations," he said. But even a brief pause "would upend corporate plans as well as the lives of tens of thousands of international students," Ware said.
Fragomen's Greenfield said he could also see the administration requiring companies to prove that they first tried to recruit American citizens for the role, similar to the labor certification already required for companies hiring H-1B workers.
But any changes or suspension of OPT issued as a final rule might be vulnerable to litigation claiming that the rule was improperly crafted in violation of administrative law, attorneys said.
"I think it's likely that any effort to issue an interim final rule without first providing the public with notice and the opportunity to comment will be met with litigation," Greenfield said.
In fact, the Bush administration had issued the rule allowing a work permit extension for STEM graduates without considering public comments, which a D.C. federal judge later ruled was a "serious procedural deficiency."
But attorneys say any move to chip away at OPT could chill the U.S.' ability to draw foreign talent in the future, which could outweigh any short-term benefit to a U.S. worker, regardless of the outcome of any court challenges to the restrictions.
"It could really backfire, I think, in the long term for the United States to just close the door on foreign talent who could help promote us on a global scale as an economic and technological superpower, but also just to help us recover from the hole that we're in now," said Hall Estill's Hernandez. "Our economy's in the tank, and I think this is the worst possible time to close the door."
--Editing by Kelly Duncan and Brian Baresch.
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