Harvard Sues to Reopen Loophole for White-Collar Illegal Migrants

CAMBRIDGE, MASSACHUSETTS - MARCH 23: The Harvard University campus is shown on March 23, 2
Maddie Meyer/Getty Images
Neil Munro

Harvard is suing the federal government to restore a temporary loophole that helps its graduates to get work permits — and which can be fraudulently used by other foreigners to get the jobs needed by American graduates.

Foreign customers “would lose their ability to pursue [jobs] because of the requirement that students maintain F-1 [visa] status for the full academic year preceding their access to practical training,” says the lawsuit, which is co-signed by the Massachusetts Institute of Technology.

The loophole to be closed was temporarily opened on March 13 to help foreign students stay amid China’s coronavirus crash.

Long-standing rules for F-1 student visas require the students participate in at least a few hours of face-to-face classes.” Foreigners have never been able to get a visa for online courses — never, ever,” said Rosemary Jenks, policy director at NumbersUSA. “Why would we give out visas to do online studies?”

Ending the temporary loophole does little or no harm, she added:

It does not disrupt [foreign students’] education at all. They can still continue their studies online, just like the Americans. And it only affects the few colleges which are going completely online. If they are doing some [face-to-face] classes … it does not affect them at all.

The face-to-face rule is important because many foreigners pose as fee-paying students to fraudulently get work permits via a huge variety of universities, ranging from Harvard to online-only “visa-mills.” In 2019, for example, hundreds of India’s illegal migrant workers enrolled at what they thought was an online-only university in Pennsylvania.

“For universities to be choosing to protect OPT when few of the Americas who are graduating from universities this year are going to be able to get jobs …  is criminal,” Jenks added

The risk of fraud exists because the federal government annually awards roughly 500,000 work permits to foreign students via the Optional Practical Training program and the Curricular Practical Training program.

University officials strongly favor those work-permit programs, which they say help them win $40 billion in sales to foreign students.

But this year, many students inadvertently violated their visas — and their chance for jobs — when their colleges shut down all face-to-face classes.

In response, DHS announced March 13 that it would temporarily preserve the F-1 visas even when the students were only attending online classes.

The lawsuit was filed after a  July 7 statement said the loophole will close in the fall. A second July 7 statement said:

[Foreign] students will not be permitted to enter or remain in the United States to attend such schools but they are not barred from continuing to attend all classes at these schools from abroad. This approach balances students’ ability to continue their studies while minimizing the risk of spread of COVID-19 in our communities by ensuring that individuals who do not need to be present in the United States are not physically here.

But Harvard and MIT want DHS to keep the online-only loophole for the coming year, in part because of the difficulty in keeping their student customers safe from the disease in classrooms:

Were Harvard or MIT compelled to increase the number of in-person sessions beyond those currently planned, it would also increase the risk to staff members—including facilities workers, janitorial staff, support staff, and others—of contracting COVID-19 through increased interactions with students and other faculty and staff. Most of these staff members reside outside of the immediate vicinity of their workplaces and are at risk of spreading the virus across the greater Boston area

The colleges also do not want to redo the Form I-20 paperwork that would show the students are eligible for work permits because they were enrolled in face-to-face classes:

Compliance with this requirement would require the university to issue a new Form I-20 for each of its potentially thousands of students on F-1 visas and to do so within 21 business days of the July 6 Directive. Doing so is not only unduly burdensome, but, in many cases, impossible because students are generally not required to register for particular classes until closer to the start of the semester.

The lawsuit downplays the money, and says the DHS loophole should be preserved because officials haven’t jumped through the required legal hoops:

ICE’s action is procedurally defective under the Administrative Procedure Act. It should be set aside, and the government required to abide by the guidance it put forward in March and on which universities and students relied in planning a fall semester during an ongoing pandemic.

The lawsuit is something of a risk because the OPT and CPT programs were created as a corporate giveaway by White House staffers, not by legislators in Congress. This shaky legal foundation was recognized in the November 2019 hearing for the DACA lawsuit.

Yet the lawsuit is just part of a larger political campaign to protect the university’s OPT cash cow, amid a growing recognition by Americans of the economic damage being done to their college-graduate peers and adult children.

For example, grassroots groups of American professionals are asking President Donald Trump to extend his popular June 22 reforms of the huge H-1B program to also reform the OPT program. Last week, multiple agencies announced they would rewrite regulations for many of the visa worker programs, including the OPT program.

Many foreign professionals work illegally in the United States via regulatory loopholes, such as B-1/B-2 visitor visa.

Democrats and business groups oppose the reforms.

But the new lawsuit does sketch the two universities’ financial interest in preserving the university loophole:

Located in Cambridge, Massachusetts, it provides undergraduate and graduate instruction and degree programs to more than 23,000 students annually, including nearly 5,000 students who study in the United States on F-1 visas. Harvard brings this lawsuit on behalf of itself and its F-1 visa-holding students.

Plaintiff Massachusetts Institute of Technology (“MIT”) is a non-profit, private research university located in Cambridge, Massachusetts. It provides graduate and undergraduate instruction to approximately 11,500 students annually, including close to 4,000 students who study in the United States on F-1 visas. MIT brings this lawsuit on behalf of itself and its F-1 visa-holding students.

Federal data provides more details.

A DHS agency reported that Harvard had 8,775 registered foreign students in 2018, and MIT had 4,863 foreign customers.  At roughly $50,000 per person in tuition fees, Harvard’s foreign students provided the university with at least $440 million in annual revenue.

In 2018, according to DHS, at least 1,913 of Harvard’s foreign students had won jobs with one-year OPT work permits. In the same year, at least 1,176 MIT graduates held jobs with OPT permits. The federal agency also suggested that 448 Harvard students and 607 MIT graduates had three-year work permits via the STEM-OPT program.

Nationwide, roughly 500,000 OPT and CPT work permits are used by foreigners to take jobs sought by the American graduates of Harvard, MIT, and many additional famous or little-known colleges.

Many foreign students win jobs at elite companies, often with the help of co-ethnic hiring managers. The federal data shows that in 2018, Amazon used the OPT program to hire 2,911 foreigners, Intel hired 1,348 foreigners, Google hired 1,193, and Microsft hired 867.

The programs are supported by Fortune 500 companies that prefer to hire workforces of compliant foreign graduates instead of outspoken American graduates who can quit their jobs to create rival products. In fact, many of these elite companies have workforces and management teams that mostly consist of foreign graduates.

But the Fortune 500 companies also gain when the OPT program provides replacement workers to a huge variety of their little-known subcontracting companies.

Those subcontractor gig-worker jobs were once filled by young American graduates who were starting careers in technology accounting, management, and marketing.

The foreign OPT workers — mostly Indians — are willing to accept unpaid training, very low wages, and long hours because they want to work several years in America and because many are competing to get slots in the H-1B visa program. If they get into the H-1B program, they can get green cards in exchange for many years of compliant work. and sometimes, also for payments to their managers.

The OPT hiring process was described by an American immigrant tech-worker who called herself “Jennifer from New York.” Jennifer said she has worked with many OPT workers:

Let’s say I’m an OPT. I just finished my basic English school. Guess what? I can’t find a job. Obviously I can’t find a job because I don’t have the skills. .… Now, what is it that you [as a Fortune 500 subcontractor] are going to do? You’re going to train me on programming skills. You’re going to give me two, three weeks worth of training, and guess what you’re gonna do, you’re gonna fake my resume …

You’re just going to go in and fake my resume, and go to the [Fortune 500] client and say, ‘Hey, I have a special person that has 10 years of experience.

Guess what? The true American that has the true experience is now excluded. And who’s going to verify the employment verification [claims]?  The [Fortune 500] client isn’t going to do it … [and] you won’t do it because you’re lying.

The Indian-born managers at the Fortune 500 companies and the subcontractors are happy to cooperate with the process, she said, because they get $500 to $1,500 for selling a job to an Indian gig worker.

The government’s unlimited OPT and CPT programs also have a national economic impact. They provide subsidized imported labor for employers in expensive coastal locations, so skewing the U.S. labor market. In turn, this process transfers jobs, careers, people, and wealth from interior states to the Democrat-dominated coastal states.

The Fortune 500 executives ignore the subcontractors’ discrimination and cheating because they are hiring disposable workers for routine starter jobs, such as software testing, patching, and modifications.

But the Fortune 500 companies also prefer migrants because they want to minimize the number of innovative American tech professionals who can quit to develop rival technologies.

The discriminatory policy is safe for the Fortune 500 executives because they are not legally responsible for criminal or civil violations by their subcontractors. The legal shield works even when the violations are made obvious by the migrant workers’ lack of skills or fraudulent documents. The same legal rules protect real estate developers who hire subcontractors who staff their crews with illegal aliens.

Also, white-collar Americans must be excluded from this subcontractor process because the Indian managers know that Americans are likely to expose cheating, discrimination, and corruption in the OPT and CPT jobs, said Jennifer.

On June 22, President Donald Trump announced plans to revamp the H-1B program so that it cannot be used by Fortune 500 companies to fill up starter jobs. The reform came as grassroots groups of American professionals campaign to keep their jobs and careers amid the aggressive outsourcing efforts by the Fortune 500 companies.

Follow Neil Munro on Twitter @NeilMunroDC, or email the author at NMunro@Breitbart.com.

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