In a surprise twist to the political drama over potential new immigration restrictions, 21 House Republicans sent a letter to Secretary of State Mike Pompeo and Acting Homeland Security Secretary Chad Wolf urging support for Optional Practical Training (OPT) for international students. Sources have confirmed some Trump officials hope to use the recent economic downturn due to Covid-19 to impose new restrictions on H-1B visa holders, international students and others. Deliberations on specifics continue inside the administration, which has prompted members of Congress and others to weigh in.
“We write to request your help in ensuring our nation’s ability to attract, educate, and engage with the best and brightest students and scholars from across the world,” begins the June 2, 2020, letter from House Republicans. “In furtherance of the goal, we ask your agencies adopt appropriately streamlined processes to ensure international students can enroll in the fall and preserve the Optional Practical Training (OPT) program, which allows our country to globally compete for market share of international students.”
The letter urged the State Department and Department of Homeland Security to ensure international students can make it to U.S. campuses in the fall. “To that end, we urge your respective departments to communicate and share plans to address the expected increase in demand for visa services, including how U.S. consulates will be able to prioritize and process applications that include F-1 and J-1 visas,” requested the House members. “We believe several options are available to your agencies including the ability to waive certain interview requirements, prioritize the rescheduling of appointments that were canceled during Covid-19, and create a timely application and renewal process for professors, researchers, scientists, and those that are needed on U.S. campuses when instruction is expected to resume.”
The 21 House Republicans who signed the letter are Rep. Steve Stivers (R-OH), Rep. Bill Flores (R-TX), Rep. Peter King (R-TX), Rep. Rodney Davis (R-IL), Rep. Rob Woodall (R-GA), Rep. John Katko (R-NY), Rep. Chuck Fleischmann (R-TN), Rep. Fred Upton (R-MI), Rep. Pete Olson (R-TX), Rep. Ann Wagner (R-MO), Rep. Brian Fitzpatrick (R-PA), Rep. Joe Wilson (R-SC), Rep. Clay Higgins (R-LA), Rep. H. Morgan Griffith (R-VA), Rep. John Shimkus (R-IL), Rep. David Schweikert (R-AZ), Rep. Tom Reed (R-NY), Rep. Don Bacon (R-NE), Rep. Dan Newhouse (R-WA), Rep. Trent Kelly (R-MS) and Rep. Cathy McMorris Rodgers (R-WA).
Retaining international students educated at U.S. universities has always been considered a political no-brainer. A year ago, Donald Trump declared in a speech at the White House: “Some of the most skilled students at our world-class universities are going back home because they have no relatives to sponsor them here in the United States. And that’s the only way. We want these exceptional students and workers to stay, and flourish, and thrive in America.”
The students “are going back home” because the annual supply of H-1B petitions – 85,000 a year, in effect, for companies – has been exhausted for the past 18 fiscal years and there are potentially decades-long waits for employment-based green cards due to low annual quotas and the per-country limit. Still, employers and universities are pleased that several times Trump has spoken favorably about retaining international students after they complete their degrees in the United States.
Some key Trump officials oppose all types of immigration – refugees, family immigrants, high-skilled foreign nationals and international students. As a result, even Optional Practical Training, which allows international students to work for 12 months, usually after graduation, and 24 additional months in science, technology, engineering and math (STEM) fields, is on the chopping block following a 30-day review contained in an April 22, 2020, presidential proclamation.
OPT was established by regulation and would likely require another regulation to accomplish the type of restriction sought by Trump officials. William Stock of Klasko Immigration Law Partners told me he thinks the most likely action would be the Department of Homeland Security (DHS) issuing an interim final rule eliminating or significantly restricting OPT or STEM OPT.
“An interim final rule can have an immediate effect, but can only be issued in limited circumstances and it’s not clear that a court would hold they exist here,” he said. “If that happens, schools and interest groups will go to court right away and say the rule change cannot be done as an interim final rule, and have a stronger case than if the agency had done notice-and-comment rulemaking.”
Other countries design policies to attract and retain international students. On May 14, 2020, the Canadian government announced significant flexibility for international students, including making it clear students would not lose the ability to work after graduation even if the Covid-19 crisis affects when they can be on campus. (See here.)