White House faces tight deadlines for saving STEM program

Patrick Thibodeau

A petition urging the White House to act urgently on a court ruling that may force thousands of recent STEM graduates to leave the U.S. early next year reached 100,000 signatures Tuesday, the threshold for an official government response.

The signature threshold obligates the White House to provide an official response to the petition in 60 days. But the government has less time than that to come up with a plan for remedying a court ruling that clouds the future for science, technology, engineering and math (STEM) graduates who are working on a student visa.

Student visa holders can work in the U.S. for 12 months under the Optional Practical Training (OPT) program. In 2008, President George W. Bush's administration approved a 17-month extension of the OPT program for STEM graduates, bringing it to 29 months, with the intent of taking pressure off the oversubscribed H-1B program.

The STEM extension was vacated last month by U.S. District Court Judge Ellen Huvelle, who said the government erred by not seeking public comment prior to expanding the OPT program. The court gave the government six months -- until Feb. 12, 2016 -- to address the problem. This means publishing a new OPT extension rule and making it available for public comment. If this doesn't happen, STEM student visa holders working on the extension may be forced to return to their home countries.

John Miano, the attorney representing the plaintiffs in the case, the Washington Alliance of Technology Workers, a Communication Workers of America union local, doubts the U.S. can meet the deadline.

According to Miano, any new regulation has to be published 60 days, by Dec.14, before going into effect. The government has to give 60 days of notice for comment, which means the U.S. Department of Homeland Security, which is responsible for immigration, has to publish the proposed rule by Oct. 15. DHS officials did not respond to a request for comment by deadline.

Between today and Oct. 15, DHS needs to reach out to interested parties, finalize the proposed rule, respond to comments, make a final decision, create the final rule, and get White House Office of Management and Budget approval, Miano said.
There is an expectation among some immigration attorneys that the White House may seek to broaden the rule and expand it beyond 17 months, an action that Ian Macdonald, an immigration attorney at Greenberg Traurig, said may happen.
Macdonald said the U.S. can meet the deadline. "We understand that a new rule will be released in late September or early October followed by a 30- or 60-day comment period. While timing will be tight, this schedule would allow for a final rule to be issued by January 2015, thereby avoiding a disaster for students and US employers," he said.

The technology workers' local believes that the OPT program brings in low-wage workers, creating unfair competition. Miano said the OPT action creates a hot political issue for the Obama administration. The administration didn't act to protect U.S. workers at Southern California Edison and Disney, but "now that foreign workers will be losing their jobs, how would it look if Obama went into overdrive to protect their jobs?"