Building Bridges: Why Expanding Optional Practical Training is a Valid Exercise of Agency Authority and How it Helps F-1 Students Transition to H-1B Worker Status

American University Law Review Volume 66 | Issue 2 Article 6 2017 Building Bridges: Why Expanding Optional Practical Training is a Valid Exercise of Agency Authority and How it Helps F-1 Students Transition to H-1B Worker Status Pia Nitzschke Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Administrative Law Commons, Immigration Law Commons, Labor and Employment Law Commons, and the Law and Economics Commons Recommended Citation Nitzschke, Pia (2017) "Building Bridges: Why Expanding Optional Practical Training is a Valid Exercise of Agency Authority and How it Helps F-1 Students Transition to H-1B Worker Status," American University Law Review: Vol. 66 : Iss. 2 , Article 6. Available at: http://digitalcommons.wcl.american.edu/aulr/vol66/iss2/6 This Comment is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Building Bridges: Why Expanding Optional Practical Training is a Valid Exercise of Agency Authority and How it Helps F-1 Students Transition to H-1B Worker Status Keywords Washington Alliance of Technology Workers v. United States Department of Homeland Security, Immigration, Visa, Education, Brain drain This comment is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol66/iss2/6 NITZSCHKE.TO.PRINTER.DOCX (DO NOT DELETE) 12/15/2016 3:37 PM BUILDING BRIDGES: WHY EXPANDING OPTIONAL PRACTICAL TRAINING IS A VALID EXERCISE OF AGENCY AUTHORITY AND HOW IT HELPS F-1 STUDENTS TRANSITION TO H-1B WORKER STATUS PIA NITZSCHKE* Should foreign students educated in the United States be encouraged to stay and join the workforce, thereby further driving the country’s economy? It is this question that prompted this Comment. Over centuries, there has been an ongoing debate over whether migrants take natives’ jobs and depreciate wages or whether they boost the economy. This debate shaped the issue in Washington Alliance of Technology Workers v. United States Department of Homeland Security before the D.C. Circuit in 2016. A technology worker’s union challenged a Department of Homeland Security (DHS) regulation allowing certain foreign students educated in the United States to remain in nonimmigrant student status for twenty-four months after completing their studies and to gain practical experience in the workplace. The union argued that enacting the regulation was outside the agency’s powers and expressed the desire to remove the program established under this regulation. The court ultimately ruled the case moot when DHS proposed— and, in March 2016, finalized—a new regulation allowing new graduates to remain for Optional Practical Training (OPT) for an even longer time. Considering Chevron and analyzing the validity of and authority with which DHS enacted the 2016 regulation, this Comment finds that the regulation is a valid exercise of agency authority and a necessary bridge to incorporate foreign * Articles Editor, American University Law Review, Volume 66; J.D. Candidate, May 2017, American University Washington College of Law; B.S., International Relations & Diplomacy, 2013, Seton Hall University. I would like to thank my faculty advisor, Professor Andrew Popper, for his guidance and feedback. I am grateful to the staff of the Law Review for their work on my piece. Finally, I want to thank my family for their unwavering support. 593 NITZSCHKE.TO.PRINTER.DOCX (DO NOT DELETE) 594 AMERICAN UNIVERSITY LAW REVIEW 12/15/2016 3:37 PM [Vol. 66:593 students into the U.S. workforce. The U.S. immigration system leaves a gap where laws and regulations should assist U.S.-educated and highly trained migrants to establish a life in the United States. This Comment argues, inter alia, that DHS’s regulation, discussed above, is a legally valid gap-filling measure and is crucial to continued American success and growth. TABLE OF CONTENTS Introduction ........................................................................................ 595 I. Overview of the Pertinent Immigration Laws & Definition of the Legal Standard ............................................................... 600 A. Principles of Immigration Law: Sorting Through the Alphabet Soup ................................................................... 600 1. Immigrants v. nonimmigrants ..................................... 600 2. Temporary v. dual intent ............................................. 601 B. The Migration Process for H-1B Temporary Workers..... 603 C. The Migration Process for F-1 International Students .... 606 D. Building Bridges: Developments to Transition Students to Full-time Employees ...................................... 607 E. Current Status: The WashTech Case and DHS’s 2016 Regulation .......................................................................... 609 F. The Question of Deference: Framing the Standard ....... 612 II. Applying the Five-Step Test: Is the Regulation a Valid Exercise of DHS’s Power? ........................................................ 616 A. The STEM OPT Regulation Is Authorized, Procedurally Valid, and Fills a Gap in the Immigration and Nationality Act ............................................................ 617 B. The STEM OPT Regulation Is a Permissible Interpretation of the Immigration and Nationality Act ...................................................................................... 620 1. Congress’s longstanding acquiescence to DHS’s interpretation approving practical training for foreign students ........................................................... 621 2. DHS’s STEM OPT extension is justified by a rational connection between economic, educational, and social concerns ................................ 623 3. The STEM OPT regulation is not manifestly contrary to the Immigration and Nationality Act ...... 627 C. Recommendations ............................................................. 630 Conclusion .......................................................................................... 632 NITZSCHKE.TO.PRINTER.DOCX (DO NOT DELETE) 2016] BUILDING BRIDGES 12/15/2016 3:37 PM 595 “Strangers are welcome, because there is room enough for them all, and therefore the old inhabitants are not jealous of them; the laws protect them sufficiently, so that they have no need of the patronage of great men; and every one will enjoy securely the profits of his industry. But if he does not bring a fortune with him, he must work and be industrious to live.” —Benjamin Franklin1 INTRODUCTION Ishwar Meyyappan, an engineering student from a small town in India, had one goal after he completed his graduate studies in the United States: to assist in deve (...truncated)