DHS Must Consult|on Tech-Student Visas

     (CN) – The Department of Homeland Security must allow public comment on a rule adopted in 2008 that allows foreign nationals in the United States on a student visa to work for a year during and following their college studies, a federal judge ruled.
     The rule is vacated, but U.S. District Judge Ellen Huvelle of the District of Columbia stayed the order until February 2016 to give the department time to provide proper notice and take comments.
     A group of U.S. scientists working in “STEM” fields – science, technology, engineering and mathematics – filed suit in 2014 over the Department of Homeland Security’s 2008 extension of a program called Optional Practical Training (OPT), which allows foreign nationals in the United States on a student visa to work for a year during and following their college studies.
     OPT was implemented in 1947 but Homeland Security issued an interim final rule in April 2008 that extended the visas to 17 months for students with STEM degrees.
     Washington Alliance of Technology Workers, a collective-bargaining organization representing STEM employees, claims it costs the tech industry less to hire foreign nationals and the new visa changes meant its members were losing jobs.
     On Wednesday, Huvelle ruled on dueling motions for summary judgment, finding Homeland Security failed to show why an “emergency situation” required suspension of notice and public comments of the rule change.
     “Defendant does not explain why it waited to initiate proceedings on this issue, and it has not pointed to any changed circumstances that made the OPT extension suddenly urgent,” Huvelle wrote. “The court therefore finds that DHS’s self-imposed deadline of April 2008 lacks support in the record. DHS has thus failed to carry its burden to show that it faced an ’emergency situation’ that exempted it from subjecting the 2008 rule to notice and comment.”
     John Miano, who represented the Washington Alliance, called the ruling “a big win for American workers.”
     “These were regulations proposed to the DHS secretary at a dinner party held at the home of a billionaire by Microsoft’s chief lobbyists,” Miano said in an interview. “From there, the entire rulemaking processes was done in secrecy, with only supporters being told such regulations were even being considered. The first [that] labor learned of the regulations was when DHS put them in place without notice and comment in 2008.”
     Washington Alliance may still appeal some of the issues, the attorney added.
     In a footnote, Huvelle added that the only items in the record addressing an economic impact of the rule change are from interested stakeholders, including Microsoft.
     “Moreover, by failing to engage in notice-and-comment rulemaking, the record is largely one-sided, with input only from technology companies that stand to benefit from additional F-1 student employees, who are exempted from various wage taxes,” she wrote.
     Although Huvelle vacated the rule, she stayed the order until Feb. 12, 2016, because immediate vacature would be “seriously disruptive.”
     “Vacating the 2008 rule could also impose a costly burden on the U.S. tech sector if thousands of young workers had to leave their jobs in short order,” Huvelle wrote. “The court sees no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector.”

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