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

As an engineering student from a small town in India, Ishwar Meyyappan dreamed about helping his country develop its solar power capacity and in a more energy-efficient way.

Studying for a graduate degree from Columbia University, Meyyappan is closer than ever to achieving his goal. In the past year and a half, he’s studied how solar power works as well as the policy and business of the industry, aspects he might never have learned at an engineering school in India.

After he graduates in December, Meyyappan plans to work at a U.S. solar panel company for a couple of years. “India is five years behind the U.S. in solar technology,” he said. “I want to work in a solar company here and apply the experience I’ve gained back home.”

The chance to get that work experience was “the whole point of coming here,” he said. “You don’t come here just for the education—you can always read a textbook.”

His plans are now at risk. A court ruling last month has put a post-graduation work program for many international science and engineering students like Meyyappan in jeopardy. It could mean that 34,000 recent graduates working at U.S. companies will be forced to pack their bags and leave the country next year.

The number of international students in the U.S. hit a record high last year, with more than 880,000 students. As college students worry about choosing their majors and finding jobs for after graduation this fall, the stakes are especially high for international students. Whether they’re allowed to live and work in the U.S. after graduating can depend on which major they declare or if they can score a job at company that will sponsor a visa.

The court decision that has Meyyappan and his peers worried is about a program called Optional Practical Training. OPT lets international students with a U.S. student visa work for 12 months at jobs or paid internships that relate to what they studied without needing to apply for a work visa.

In 2008, the Bush administration decided to extend that 12 months to 29 months—almost two and a half years—for students who majored in science, technology, engineering, or math (STEM). President Obama expanded the number of majors that qualified, arguing that the U.S. needed to keep attracting the smartest people in the world. “In the race for the future, America is in danger of falling behind,” he said in 2010. There are currently 134,000 students working under OPT, and 34,000 students working under the STEM extension, an Immigration and Customs Enforcement spokesperson told me.

The extension has been a godsend for many students. If they run out of OPT time and want to keep working in the U.S., they have to apply for an H-1B visa, a longer-term visa for skilled temporary foreign workers. The number of H-1B’s awarded each year is capped at 85,000, and due to soaring demand in the last few years, only about 30% of those who apply get one. Applications open every year on April 1 and the cap is met within days. Winners are selected in a random lottery that for many students—who have planned careers and built social lives in the U.S.—feels more like Russian Roulette.

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.