Although the U.S. extended the OPT program to fix a problem with H-1B oversubscriptions, its regulatory revisions, including its greater emphasis on mentoring as part of the program, raises new questions.
Ron Hira, a public policy professor at Howard University, said bachelor's and master's degrees in STEM disciplines "are most commonly professional degrees, meaning that those graduates are able to hit-the-ground running as professionals."
Hira said there "is no justification to treat them as interns in need of further training."
"The duration of 'training' being proposed by the Obama administration has no basis in any theory, data, or analysis," Hira said. "It is pure fiction that someone with a master's degree in electrical engineering needs an additional three years to work as an intern to be a productive professional. Instead the duration seems to come out of thin-air, based purely on what the political types in the Obama White House believe that they can get through without facing significant opposition," Hira said.
"It's an over-reach to claim that someone who completes a master's degree in as little as 12 months needs three years interning -- at low or no pay in many cases -- to get further training," Hira said.
John Miano, the attorney representing the Washington Alliance of Technology Workers, which brought the OPT lawsuit, said that one of the problems with the proposed rule is that it effectively "requires employers and universities to engage in unlawful immigration status discrimination.
"The rule requires these organizations to set up mentoring programs for foreign graduates to work under OPT," Miano said, "However, there is no requirement that American graduates receive the same benefit."
Daniel Costa, the Economic Policy Institute's director of immigration law and policy research, said the worker protections included in the new rule "are so vague and deferential to employers that they will be virtually unenforceable in practice in any meaningful way."
There is also no hard or fast wage rule in this OPT proposal. The U.S. "is basically going to let the employers decide what the wage is for a similarly situated U.S. worker," with a similar wage paid to the OPT worker. "As long as employers just attest that they decided a wage was appropriate 'in good faith' then it's OK," he said.
Costa said instead of requiring a good faith effort to set an appropriate wage, "it would have been much easier to just require that a clear, legally defined prevailing wage be paid."
The student supporters of the OPT have a lot at stake, particularly if the court doesn't allow the U.S. to continue the STEM extension. They will likely fill the government's inbox with tens of thousands of comments before the comment period closes. An earlier White House petition drew more than 100,000 signatures.
"We invest thousands of dollars to earn degrees to have a better future," wrote Niharika Korada, in a submission in support of OPT. "Kindly do not take away that opportunity from us."
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