Office of Policy

U.S. Immigration and Customs Enforcement

Department of Homeland Security

425 I Street, N.W.

Room 7257

Washington, DC 20536

June 9, 2008

By electronic submission: http://www.regulations.gov

Re: Comments on Interim Final Rule,

DHS No. ICEB-2008-0002; ICE No. 2124-08

RIN 1653-AA56

Dear Sir or Madam:

The American Federation of Labor and Congress of Industrial
Organizations (\"AFL-CIO\"), a voluntary federation of 56 national and
international labor organizations representing some 10.5 million working
men and women, respectfully submits these comments to the Department of
Homeland Security (\"DHS\") on the Proposed Rule published at 73
Fed.Reg. 18944 (April 8, 2008).

The AFL-CIO opposes extending the maximum period of optional practical
training (OPT) from 12 months to 29 months for F-1 students who have
completed a science, technology, engineering, or mathematics (STEM)
degree. We also oppose extending work authorization for students with
pending H-1B Petitions.

Congress created the F-1 visa classification to allow individuals who
wish to enter the United States *solely* and *temporarily* to pursue a
full course of study in an academic program. The visa category is not an
employment category, and Congress did not intend it to be an employment
visa.

By extending the OPT period and work authorization period, the interim
final rule turns a student visa program into a labor market program, and
essentially lifts the cap that Congress has placed on the H1-B program.
The DHS has no legal authority to do that.

In addition, the interim final rule allows employers to completely
bypass the protections for workers (both domestic workers and foreign
workers) that Congress built into the H-1B program. Employers who hire
students in OPT are not subject to any of the requirements to which H-1B
employers are subject. An employer who wishes to employ an H-1B worker
must first file a Labor Condition Application (\"LCA\") with the United
States Department of Labor (DOL), which contains certain information
concerning wages to be paid and other matters. *See* section 212(n) of
the Act, [8 U.S.C. §
1182](http://www.lexis.com/research/buttonTFLink?_m=6d9e926f26a5ce1c31a468d9387cb5e3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B24 I. %26 N. Dec. 282%5D%5D><%2Fcite>&_butType=4&_butStat=0&_butNum=11&_butInline=1&_butinfo=8%25 )(n)
(2000 & Supp. IV 2004) (describing the LCA that is filed with the
Department of Labor); *[United States v. Ramirez,
supra;](http://www.lexis.com/research/buttonTFLink?_m=6d9e926f26a5ce1c31a468d9387cb5e3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B24 I. %26 N. Dec. 282%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=12&_butInline=1&_butinfo=%253 )
[Venkatraman v. REI Systems, Inc.,
supra;](http://www.lexis.com/research/buttonTFLink?_m=6d9e926f26a5ce1c31a468d9387cb5e3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B24 I. %26 N. Dec. 282%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=13&_butInline=1&_butinfo=%253 )*
8 C F.R. § 214.2(h)(1)(ii)(B)(1) (2007); 20 C.F.R. § 655.700 (2007)
(Department of Labor regulation describing provisions governing H-1B
visas and requirements for obtaining a certified LCA).

An employer who files an H-1B petition for a computer programmer, for
example, must file an LCA with the DOL, and must attest, among other
things, that the foreign worker is being hired in the absence of a
strike or lockout. Congress included this provision to prevent employers
from using foreign workers to break a strike. An employer who hires an
F-1 student into the ***very same job*** is not required to file an LCA,
nor is it required to make any attestations. Thus, the rule permits an
employer to hire a temporary foreign STEM worker during a strike or
lock-out, which contravenes Congressional intent.

Importantly, OPT employers are not required to pay a prevailing wage.
Thus an employer will be have the ability to hire a STEM temporary
foreign worker to whom the employer would have to pay the prevailing
wage if it hired the worker under the H1B program, for minimum wage!
Given that DHS' own estimates are that tens of thousands of OPT workers
will soon be in the market, this is certain to exert downward pressure
on wages and other working conditions.

Congress has also established a mechanism through the DOL to enforce the
LCA conditions, including a mechanism for workers to file complaints
against an H-1B employer who may be violating the provisions of the H-1B
program. *See* [8 U.S.C. §
1182](http://www.lexis.com/research/buttonTFLink?_m=6d9e926f26a5ce1c31a468d9387cb5e3&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B24 I. %26 N. Dec. 282%5D%5D><%2Fcite>&_butType=4&_butStat=0&_butNum=11&_butInline=1&_butinfo=8%25 )(n)(2)(G)(ii).
Thus, a worker employed as a computer programmer with an H-1B visa, for
example, has the ability to file a complaint with the DOL if the
employer violates the H-1B program by, for example, supplying incorrect
or false information in the LCA; failing to pay the worker the higher of
the prevailing wage or actual wage; making illegal deductions from wages
(for petition processing, etc.); failing to comply with "no
strike/lockout" requirement, or retaliating or discriminating against
the worker for filing a complaint or cooperating with an investigation.
If that very same worker is employed in the OPT, she has no recourse if
she suffers an illegal deduction in wages, or is the victim of
retaliation or discrimination. The interim final rule denies the same
workers that Cngress sought to protect, these vital protections.

The H-1B program has had an extremely negative impact on the wages and
benefits of workers in the high tech industry and badly is in need of
repair and reform. *See* U.S. Government Accountability Office, Report
to Congressional Requesters, "H-1B Visa Program: Labor Could Improve Its
Oversight and Increase Information Sharing with Homeland Security." June
2006. Substantially growing the number of temporary foreign workers---in
a much more vulnerable position than H1B workers---in STEM occupations
is clearly not the answer.

The DHS has provided no reasonable explanation for this rule. It cites
repeatedly to concerns about the US ability to compete in the global
economy. Those concerns are outside the purview of the DHS whose mission
is to: "(A) prevent terrorist attacks within the United States; (B)
reduce the vulnerability of the United States to terrorism; and (C)
minimize the damage, and assist in the recovery, from terrorist attacks
that do occur within the United States.\" *Homeland Security Act of
2002.*

Finally, the agency unlawfully invoked the "good cause" exemption to the
notice and comment requirement of Administrative Procedure Act (APA) 5
U.S.C. § 553(b). The \"good cause\" exception, which allows an agency to
dispense with notice and comment when it finds that those procedures are
"impracticable, unnecessary, or contrary to the public interest," *See*
5 U.S.C. § 553(b)(B), is to be \"narrowly construed and only reluctantly
countenanced.\" *Tennessee Gas Pipeline Co. v. FERC, 297 U.S. App. D.C.
141, 969 F.2d 1141, 1144 (D.C. Cir. 1992)* (quoting *New Jersey v. EPA,
200 U.S. App. D.C. 174, 626 F.2d 1038, 1045 (D.C. Cir. 1980))*. The
exception is not an \"escape clause\"; its use \"should be limited to
emergency situations.\" *American Fed\'n of Gov\'t Employees v. Block,
210 U.S. App. D.C. 336, 655 F.2d 1153, 1156 (D.C. Cir. 1981)*.

> \"Impracticable\" means a situation in which the due and required
> execution of the agency functions would be unavoidably prevented by
> its undertaking public rule-making proceedings. \"Unnecessary\" means
> unnecessary so far as the public is concerned, as would be the case if
> a minor or merely technical amendment in which the public is not
> particularly interested were involved. \"Public interest\" supplements
> the terms \"impracticable\" or \"unnecessary\"; it requires that
> public rule-making procedures shall not prevent an agency from
> operating and that, on the other hand, lack of public interest in
> rule-making warrants an agency to dispense with public procedure.

S. Rep. No. 752, 79th Cong., 1st Sess. 14 (1945), *reprinted in* Senate
Judiciary Committee, 79th Cong., 2d Sess., Administrative Procedure Act
Legislative History 185, 200 (1946), *quoted in Kollett,* 619 F.2d at
145.

It cannot be said in this case that notice and comment were
\"unnecessary\" or \"contrary to the public interest,\" or
"impracticable" as these terms are defined. The final interim rule is
clearly not a minor or technical amendment: it will allow employers to
hire tens of thousands of workers in the high tech field under
conditions that undermine labor standards for all workers. Nor would
public rule-making proceedings here prevent execution of the DHS
functions. The agency is well able to continue to protect the nations'
security while giving the public the opportunity to comment on the
impact that this rule would have on labor standards. The public interest
in rule making is strong. \"The purpose of prior notice and comment is
to afford persons an opportunity to influence agency action in the
formative stage, before implementation, when the agency is more likely
to be receptive to argument.\" *Kollett v. Harris,* 619 F.2d 134, 145
(1st Cir. 1980*)*. What's at stake here are the wages and other working
conditions for an entire industry. The public deserved the opportunity
to comment and attempt to influence agency action when it still
mattered---that is, before the agency implemented the rule.

For these reasons, the AFL-CIO urges DHS to withdraw the interim final
rule.

Sincerely,

Ana Avendaño

Director, Immigrant Worker Program