Why a troubled student visa program could send 34,000 foreign workers home

Most students working on OPT have just one chance at the H-1B lottery after graduating. If they don’t win, they have to give up their job offer and go back to their home country. The STEM extension gives students multiple years to apply in the H-1B lottery.

My friends had a bunch of job interviews, but I wasn’t even considered because I was required to check the box that said I would require sponsorship. — Mansher Dhillon

That extension is now at risk for a pretty obtuse reason. Last year, the Washington Alliance of Technology Workers, a group representing U.S. tech employees, sued the Department of Homeland Security over the STEM extension. They claimed that when the agency introduced the extension back in 2008, it failed to publicize the change and allow 60 days of public comment, a requirement for any immigration rule. Judge Ellen Segal Huvelle ruled in favor of the tech workers last month. But because vacating the extension “would be seriously disruptive” to employees and employers, she gave the feds until Feb. 12, 2016 to come up with a new rule.

Just 60 days of public comment might seem like a minor reason to ditch the whole thing, but Attorney John Miano, who represented the tech workers in their lawsuit, said the extension was an example of collusion between business and government.

“No one knew this was even happening,” he told me. “It was something that lobbyists and tech companies wanted… It’s the big money lobbyists against the working people of America.”

Now, if the federal government wants to keep the extension in place, it essentially has to go through the same process of public review it didn’t do in 2008. The DHS must publish a proposed rule and get 60 days of public comment in advance, create a final rule, and then publish it again 60 days before it goes into effect.

The clock is ticking: If the new rule isn’t in place by Feb. 12, then everyone working under the STEM extension has to go home. The government should have time to get through the public comment process, immigration attorneys William Coffman and Michelle Frangela wrote in the National Law Review, but it could be close. Miano said he “absolutely” expects to sue again when the DHS puts out a new rule, arguing that they won’t take public comment into account because of the short timespan.

“There’s a lot of variables here at work, and it’s kind of hard to predict what would happen,” he said.

An ICE spokesperson declined to comment, saying the agency was still reviewing the ruling.

Neither H-1B nor OPT is an immigrant visa—these programs are designed for people who want to return home eventually. But they’ve still been controversial, and some see H-1B especially as helping foreigners take American jobs. As the New York Times reported yesterday, Toys ‘R Us hired Indian workers on H-1B visas who shadowed employees in the company’s headquarters. Then the company moved the jobs to India and laid off American employees.

But tech firms especially say they need the talents of international students. Luis von Ahn, CEO of the language-learning app Duolingo and a computer science professor at Carnegie Mellon, said the limits on hiring international students were frustrating for employers like him.

“You hire a person, who is extremely well educated, and you get them to come work for you, and you have a 70% chance that they’re not going to be able to stay,” von Ahn told me. “It’s terrible, because even if you hire super smart people, it takes a couple months to train them. They don’t start becoming very useful to the company until about six months—and then they have to leave.”

If the STEM extension isn’t reinstated, he said, “we’re probably going to lose two employees who were really hard to hire,” a big problem for a small company like Duolingo with only 50 employees. “All these extremely well-educated people are probably going to go to some other country and make that country better.”

Von Ahn said he’d much prefer hiring a U.S. citizen or someone who already has a job permit because it’s simpler and cheaper. But “we have to hire [international students] because we can’t find anyone who’s as good as they are,” he said. “Sometimes they’re the best of the best, literally, in the world.”

The court decision is leaving students like Meyyappan feeling betrayed. “When we came in, we made a calculation about how much it’s going to cost us, and how much we’re going to earn,” he said. “I could have gone to London, I could have gone to Australia, but I chose the U.S.”

Some students gave up what they wanted to study for the chance to stay in the U.S. Helena, an undergraduate at Columbia who’s from Guangzhou, China, changed her major from political science to statistics to take advantage of the STEM extension. (She didn’t want to use her last name because she thought it might impact her employment in the future.)

“When I first came to Columbia, I wasn’t really thinking of work, but about what I wanted to study, how I could expand my knowledge,” she said. Now, she worries about how she can stay in New York, and with the extension in jeopardy, she’s unsure about her future. “Right now, I don’t even know what classes I should take,” she said.

Before the court decision came down, the Obama administration was considering extending the OPT extension to a total of six years. Meanwhile, some in Congress want to raise the cap on H-1B’s, which would make it easier for students on OPT to get a longer-term work visa.

And while it seems that most presidential candidates think more about people jumping the Mexican border than students arriving to study when the word “immigration” comes up, the OPT and H-1B programs could become an issue for 2016. Donald Trump and Mike Huckabee have criticized the H-1B program, while Ted Cruz has suggested significantly raising the cap on H-1B’s.

Some students who’ve gone home after being unable to secure a work visa say they were disappointed that they weren’t allowed to stay. Mansher Dhillon, who graduated with an undergraduate degree from UC-Berkeley last year, is now working a marketing job back home in India.

He was the first of his friends and immediate family to go to college in the U.S., and going to Berkeley was his first time being in the country. A lot of people back home think that working in “the United States is like, oh shit, you’re arrived,” he said. “If you work there, regardless of what you do, you could be an Uber driver and it still seems so prestigious.”

He worked in the Bay Area after graduating, but once he ran out of OPT and didn’t win the H-1B lottery, he went home. “My friends had a bunch of job interviews, but I wasn’t even considered because I was required to check the box that said I would require sponsorship,” he said.

Dhillon doesn’t mind working and living at home, and he’s saving money, but he says if he was applying for college today, he wouldn’t choose an American university. “You American students take your job opportunities for granted,” he said. “I tell my friends, appreciate it for all its worth.”

Correction: An earlier version of this story said Dhillon didn’t know anyone who had come to the U.S. for college before. Actually, he didn’t have any friends or immediate family who had come to the U.S. for college before.

Casey Tolan is a National News Reporter for Fusion based in New York City.