USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 1 of 19
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`ORAL ARGUMENT NOT YET SCHEDULED
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`No. 21-5028
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`______________________________________________________
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`WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
`
`Plaintiff-Appellant,
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`
`v.
`
`U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
`
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`Defendants-Appellees.
`______________________________________________________
`
`On Appeal from the United States District Court
`for the District of Columbia
`No. 16-cv-1170
`The Hon. Reggie B. Walton
`______________________________________________________
`
`BRIEF OF AMICUS CURIAE NISKANEN CENTER
`IN SUPPORT OF APPELLEES
`
`
`
` June 21, 2021
`
`Megan C. Gibson
`Kristie De Peña
`Niskanen Center
`820 First Street, NE, Suite 675
`Washington, DC 20002
`(202) 810-9260
`mgibson@niskanencenter.org
`
`Counsel for Amicus Curiae
`Niskanen Center
`
`
`
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`ORAL ARGUMENT NOT YET SCHEDULED
`
`No. 21-5028
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`______________________________________________________
`
`WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
`
`Plaintiff-Appellant,
`
`
`v.
`
`U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
`
`
`Defendants-Appellees.
`______________________________________________________
`
`On Appeal from the United States District Court
`for the District of Columbia
`No. 16-cv-1170
`The Hon. Reggie B. Walton
`______________________________________________________
`
`BRIEF OF AMICUS CURIAE NISKANEN CENTER
`IN SUPPORT OF APPELLEES
`
`
`
` June 21, 2021
`
`Megan C. Gibson
`Kristie De Peña
`Niskanen Center
`820 First Street, NE, Suite 675
`Washington, DC 20002
`(202) 810-9260
`mgibson@niskanencenter.org
`
`Counsel for Amicus Curiae
`Niskanen Center
`
`
`
`
`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 2 of 19
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`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
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`A. Parties, Intervenors, and Amici
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`All parties, intervenors, and amici curiae before this Court and that appeared
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`before the district court are listed in the Brief for the Appellees (“Appellees’ Brief”),
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`Document No. 1902180.
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`B. Rulings Under Review
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`The district court order under review appears in the certificate to Appellees’
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`Brief, p. iv.
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`C. Related Cases
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`All related cases appear in the certificate to Appellees’ Brief, p. v.
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 3 of 19
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`CORPORATE DISCLOSURE, AND AUTHORSHIP, AND SEPARATE
`BRIEFING STATEMENTS
`Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1,
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`the Niskanen Center is a 501(c)(3) nonprofit advocacy-based organization, with no
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`parent corporation and no publicly traded stock whose general purpose is to
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`promote an open society.
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`Pursuant to Rule 29(a)(4)(E), counsel for amicus Niskanen Center state that
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`they authored this brief in whole, and no party, counsel for any party, or any other
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`person contributed money that was intended to fund preparing or submitting the
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`brief.
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`Pursuant to Circuit Rule 29(d), Amicus certify that this separate amicus brief
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`is necessary and does not duplicate any other brief that may be submitted. Amicus
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`Niskanen Center seeks to assist the Court by offering insight from Niskanen’s
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`original research on the Optional Practical Training Program (“OPT”), which
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`suggests that the OPT positively contributes to the open society and the social and
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`economic well-being of the United States, to the benefit of native-born Americans.
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 4 of 19
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`TABLE OF CONTENTS
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`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES…….. i
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`CORPORATE DISCLOSURE AND
`AUTHORSHIP RULE 26.1 STATEMENTS…………………………………… ii
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`TABLE OF CONTENTS…………………………………………………………iii
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`TABLE OF AUTHORITES………………………………………………………iv
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`GLOSSARY OF TERMS…………………………………………………………v
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`STATEMENT OF INTEREST, IDENTITY OF AMICUS CURIAE,
`AND SOURCE OF AUTHORITY TO FILE …………………………………… 1
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`ARGUMENT…………………………………………………………………….. 2
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`I.
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`THE OPT PROGRAM DOES NOT INJURE NATIVE WORKERS……. 2
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`A.
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`The OPT Program Does Not Increase Competition with Foreign
`Workers…………………………………………………………….. 3
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`II.
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`THE OPT PROGRAM DOES NOT DEPRIVE WASHTECH MEMBERS
`OF STAUTORY LABOR PROTECTIONS……………………………….5
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`III. THE OPT PROGRAM PROVIDES SIGNIFICANT ECONOMIC
`BENEFITS BY DRIVING INNOVATION AND GROWTH……………. 6
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`A. OPT Program Helps Coordinate the Recruitment and Retention
`functions of F-1 and H-1B…………………………………………. 6
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`B. OPT Increases Human Capital and Innovation……………………. 9
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`CONCLUSION…………………………………………………………………. 11
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`CERTIFICATE OF COMPLIANCE
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`CERTIFICATE OF SERVICE
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`iii
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 5 of 19
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`TABLE OF AUTHORITIES
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`Case Law
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`Wash. All. of Tech. Workers v. United States Dep't of Homeland Sec.,
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` 74 F. Supp. 3d 247 (D.D.C. 2014) .........................................................................7
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`Regulations
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`8 CFR § 214 and 274a (2008) ...............................................................................8, 9
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`Other Authorities
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`Bureau of Labor Statistics, STEM crisis or STEM surplus? Yes and yes, (2015)
`https://bit.ly/2iiJ5eg ..............................................................................................10
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`Exec. Office of the Pres., President’s Council of Advisors on Science and
`Technology, Engage to Excel: Producing One Million Additional College
`Graduates With Degrees in Science, Technology, Engineering, and Mathematics,
`(February 2012), https://bit.ly/2kCNd7p .............................................................10
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`Jeremy L. Neufeld, Optional Practical Training (OPT) and International Students
`After Graduation, Niskanen Center (March 2019)................1, 2, 3, 5, 7, 8, 10
`
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`Madeline Zavodny, International Students, STEM OPT and the U.S. STEM
`Workforce, National Foundation for American Policy, (March 2019) ..............4, 5
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`Tracking International Students in Higher Education: A Progress Report Hearing
`Before the Subcomm. On 21st Century Competitiveness and the Subcomm. On
`Select Educ. of the U.S. House of Representatives Comm. on Educ. and the
`Workforce, 109th Cong. 109-5 (2005) https://bit.ly/31JWrSg ..............................7
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`iv
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 6 of 19
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` GLOSSARY OF TERMS
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`Department of Homeland Security DHS
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`Freedom of Information Act
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`FOIA
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`Niskanen
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`OPT
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`Amicus Niskanen Center
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`Optional Practical Training Program
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`Science Technology Engineering
`Mathematics
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`Student Exchange Visitor
`Information Center
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`STEM
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`SEVIS
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`Washtech
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`Washington Alliance of Technology
`Workers/NG-CWA Local 37083
`(Plaintiff-Appellant)
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 7 of 19
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`STATEMENT OF INTEREST, IDENTITY OF AMICUS CURIAE, AND
`SOURCE OF AUTHORITY TO FILE
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`The Niskanen Center (“Niskanen”) is a nonpartisan 501(c)(3) think tank that
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`works to promote an open society: a social order that is open to political, cultural,
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`and social change; open to free inquiry; open to individual autonomy; open to the
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`poor and marginalized; open to commerce and trade; open to people who may wish
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`to come or go; open to different beliefs and cultures; open to the search for truth;
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`and a government that protects these freedoms while advancing the cause of open
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`societies around the world. Niskanen therefore strongly believes that immigration
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`channels that open doors to the best and the brightest of the world are programs
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`worth defending.
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`Our original research on Optional Practical Training Program (“OPT”)
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`suggests that the OPT positively contributes to the open society and the social and
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`economic well-being of the United States. In 2017, Niskanen obtained data from the
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`Student Exchange Visitor Information System (SEVIS) on over 1.7 million OPT
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`participants through a Freedom of Information Act (FOIA) request. Niskanen
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`analyzed this data, in conjunction with geographic data on economic and
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`demographic variables obtained from the Local Area Unemployment Statistics
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`Program, the American Community Survey, and the U.S. Patent and Trademark
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`Office to determine the economic effects of the OPT program on native workers, on
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`1
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 8 of 19
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`innovation, wages, and to report on the scale and growth of the program, educational
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`attainment of participants, and their fields of study. Jeremy L. Neufeld, Optional
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`Practical Training (OPT) and International Students After Graduation, Niskanen
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`Center (March 2019) (“OPT Study”).1 Parts of Niskanen’s analysis are described
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`below, which will assist the Court with the issues in this case.
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`ARGUMENT
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`I.
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`THE OPT PROGRAM DOES NOT INJURE NATIVE WORKERS.
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`The district court found that Plaintiff-Appellant Washington Alliance of
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`Technology Workers (“Washtech”) had demonstrated a concrete injury-in-fact
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`because the OPT program:
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`“allow increased competition against” Washtech’s members, Sherley, 610
`F.3d at 72, such that its members’ “bottom line[s] may be adversely affected
`by the challenged government action[,]” Mendoza, 754 F.3d at 1013. And, by
`establishing that DHS’s regulations “have the clear and immediate potential”
`to subject Washtech’s members to increased workforce competition in the
`STEM labor market, La. Energy & Power Auth., 141 F.3d at 367, Washtech
`has demonstrated that its members suffer a concrete injury-in-fact.
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`JA at 14 (emphasis in original). Washtech further alleges that “the 2016 OPT
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`Program Rule aggravated the injury by increasing the STEM extension from 17
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`months to 24 months.” Appellant’s Brief at 6, 9. Niskanen’s research demonstrates
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`1 Niskanen’s OPT Study is attached to this brief in an addendum; available at:
`https://www.niskanencenter.org/wp-content/uploads/old_uploads/2019/03/OPT.pdf
`(Last accessed June 18, 2021).
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`2
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 9 of 19
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`otherwise—Washtech members cannot be injured because the OPT simply does not
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`injure native workers. See OPT Study at 1, 5-6.2
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`A. The OPT Program Does Not Increase Competition with
`Foreign Workers.
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`The evidence demonstrates that the OPT does not increase competition
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`
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`between native and foreign workers. OPT Study at 1, 5-6. Using the geographic
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`variation of OPT participants in the labor market, and exploiting a natural
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`experiment afforded by the promulgation of the STEM extension, Niskanen’s study
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`found that OPT workers do not compete with highly educated natives and that
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`increased competition is not visible in the job market.
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`There are more workers, yes, but there are also no deleterious effects on
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`natives from the presence of foreign workers. The study finds that natives are no
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`more likely to be unemployed, no more likely to see reduced wages, and no less
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`likely to participate in the labor force. On the contrary, the study finds that foreign
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`workers tend to complement natives with educational attainment similar to
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`Washtech workers—at both the bachelor’s and graduate level—and an increase in
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`earnings in the region (including for natives) where OPT participants are employed.
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`OPT Study at 1, 5-6.
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`2 Niskanen’s OPT Study is attached to this brief in an addendum.
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`3
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 10 of 19
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`Niskanen’s findings are buttressed by a study by the National Foundation for
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`American Policy, which likewise found a negative association between the scale of
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`OPT and unemployment. Madeline Zavodny, International Students, STEM OPT
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`and the U.S. STEM Workforce, National Foundation for American Policy, (March
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`2019) (“STEM OPT paper”)3. The study further found this negative association
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`holds when looking at science, technology, engineering, and mathematics (“STEM”)
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`fields specifically, including math and computer science. As the study found, “there
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`is no evidence that foreign students participating in the OPT program reduce job
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`opportunities for U.S. workers. Instead, the evidence suggests that U.S. employers
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`are more likely to turn to foreign student workers when U.S. workers are scarcer.”
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`STEM OPT paper P. 1.
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`These findings are unsurprising as whether the OPT program increases
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`competition cannot be known a priori because claims about new workers
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`“competing” with natives are essentially claims about whether those workers are
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`substitutes for natives. Substitution is less likely in the face of shortages, as exist in
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`the STEM fields. And complementarity is more likely in high-skilled fields which
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`feature highly specialized degrees, collaborative team work, agglomeration effects,
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`3 Available at https://nfap.com/wp-content/uploads/2019/03/International-Students-
`STEM-OPT-And-The-US-STEM-Workforce.NFAP-Policy-Brief.March-2019.pdf
`(Last accessed June 18, 2021).
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`and spillover effects from innovation, all of which are common in STEM. OPT
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`Study at 5-6.
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`It may be theoretically possible that an alien replaces some native, but it is
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`also theoretically possible that an alien complements that native, making them more
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`productive. Which scenario is the case is ultimately an empirical question. The
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`empirical results from the OPT Study and STEMP OPT paper indicate that with
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`OPT, the latter is case. OPT Study at 1, 5-6; STEM OPT at 1-3, 14-17.
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`II. THE OPT PROGRAM DOES NOT DEPRIVE WASHTECH
`MEMBERS OF STATUTORY LABOR PROTECTIONS.
`Washtech alleges that the OPT was created in a vast conspiracy to circumvent
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`H-1B quotas or protections for native workers. See Appellee Br. at 4-6, 35. This is
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`absurd, and the two statutory programs have very different rules, requirements, and
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`protections.
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`First, F-1 students participating in OPT as part of their educational experience
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`are subject to different eligibility requirements than H-1B, contra the claim by
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`Washtech that “the statutory H-1B visa program and the OPT program apply to the
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`same class of workers: college graduates.” Appellant Br. at 4 (emphasis added).
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`Each program has different rules, which affords different kinds of protection. For
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`instance, H-1Bs are not restricted to training relating to their field of study, and F-1
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`OPT recipients are not restricted to specialty occupations. H-1Bs may be anywhere
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`in their careers, but F-1 OPT recipients must be recent graduates.
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`Second, the H-1B is not the exclusive visa for college educated labor, which
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`also includes other visas such as the J visa or TN-1, for instance. All of these visas
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`have different admissions and eligibility requirements, and protections for natives.
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`Some may not be available to any given college graduate interested in working in
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`the United States, but the examples demonstrate that visa categories often have some
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`overlap. That any given alien may be eligible for an H-1B does not mean that the H-
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`1B is the only option available to them—a feature of the framework that Congress
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`designed and intended for.
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`Washtech further insinuates that the only reason OPT was created was to
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`circumvent H-1B quotas, and but for OPT, workers under OPT would be subject to
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`and have to go through the requirements of H-1B. Appellant Br. at 2-3, 4-6, 35. OPT
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`F-1 students are no more subject to the H-1B cap on the “number of such workers”
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`than are H-1B recipients subject to OPT’s shorter duration of employment, its non-
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`renewability, or its necessary relevance to the recipient’s field of study.
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`III. THE OPT PROGRAM PROVIDES SIGNIFICANT ECONOMIC
`BENEFITS BY DRIVING INNOVATION AND GROWTH.
`A. The OPT Program Helps Coordinate The Recruitment And
`Retention Functions Of F-1 And H-1B.
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`
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`The OPT program provides invaluable experience to graduates seeking on-
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`the-job training as a capstone in their educational experience. For many international
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`students, work experiences are an integral part of their education, providing the
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`opportunities necessary to turn classroom experiences into useful knowledge that the
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`student is more likely to retain and put into practice. It in no way detracts from the
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`pedagogical function of OPT to note that the program serves other important
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`functions as well. Notably, in addition to its educational purpose, OPT serves as a
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`vital link between the F-1 and H-1B visa programs. OPT Study at 2.
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`As stated by the DC district court, “F-1 and H-1B are integrally related...F1
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`and H-1B perform the interlocking task of recruiting students to pursue a course of
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`study in the United States and retaining at least a portion of those individuals to work
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`in the American economy.” Wash. All. of Tech. Workers v. United States Dep't of
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`Homeland Sec., 74 F. Supp. 3d 247 (D.D.C. 2014).
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`In his 2005 testimony on the impact of SEVIS before Congress, Dr. C. D.
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`Mote, Jr., president of the University of Maryland at College Park, explained why
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`the interlocking task of recruitment and retention was vital to American interests:
`
` undue restrictions that hinder our ability to recruit outstanding talent
`from other nations threaten our technical and economic strengths and
`also our diplomatic efforts as well… To remain competitive in the
`coming decades, we must continue to embrace the most capable
`students and scholars of other countries. Our security and quality of life
`depend on it.
`
`Tracking International Students in Higher Education: A Progress Report Hearing
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`Before the Subcomm. On 21st Century Competitiveness and the Subcomm. On
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`Select Educ. of the U.S. House of Representatives Comm. on Educ. and the
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`Workforce, 109th Cong. 109-5 (2005) https://bit.ly/31JWrSg.
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`7
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`DHS justified the STEM extension, recognizing the “waiting room” function
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`of OPT and connecting it to labor market conditions:
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`Many employers who hire F-1 students under the OPT program
`eventually file a petition on the students' behalf for classification as an
`H-1B worker…Because the H-1B category is greatly oversubscribed,
`however, OPT employees often are unable to obtain H-1B status within
`their authorized period of stay in F-1 status, including the 12-month
`OPT period, and thus are forced to leave the country. The inability of
`U.S. employers, in particular in the fields of science, technology,
`engineering and mathematics, to obtain H-1B status for highly skilled
`foreign students and foreign nonimmigrant workers has adversely
`affected the ability of U.S. employers to recruit and retain skilled
`workers and creates a competitive disadvantage for U.S. companies.
`
` CFR § 214 and 274a (2008).
`
` 8
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`To that end, and operating as it does at the intersection of F-1 and H-1B, the
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`OPT program has been successful in its role in recruiting candidates for retention.
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`OPT can accurately be described as the largest high-skilled worker recruitment
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`program in the country, bringing over 200,000 new high-skilled foreign workers into
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`the labor market each year, compared to only about 180,000 new H-1B visas issued
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`each year. OPT Study at 3.
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`However, because OPT is nonrenewable and lasts for a relatively short
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`duration, the H-1B program still contributes more high-skilled workers at any one
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`time. And however successful OPT is at recruitment, retention is ultimately reliant
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`on the H-1B, of which only 85,000 can be awarded per year to those not employed
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`by universities and other cap-exempt employers. In this way, OPT is limited to
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 15 of 19
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`expanding the pool of potential guest workers (and a larger applicant pool naturally
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`makes for better hires) but does not generally increase the number of guest workers
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`or influence retention, which is constrained by the relative scarcity of H-1B visas.
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`B. OPT Increases Human Capital and Innovation.
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`The original STEM extension was justified on the grounds that it better
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`coordinates the recruitment and retention functions of both programs, with the
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`attention on STEM because:
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`Many employers who hire F-1 students under the OPT program
`eventually file a petition on the students' behalf for classification as an
`H-1B worker…Because the H-1B category is greatly oversubscribed,
`however, OPT employees often are unable to obtain H-1B status within
`their authorized period of stay in F-1 status, including the 12-month
`OPT period, and thus are forced to leave the country. The inability of
`U.S. employers, in particular in the fields of science, technology,
`engineering and mathematics, to obtain H-1B status for highly skilled
`foreign students and foreign nonimmigrant workers has adversely
`affected the ability of U.S. employers to recruit and retain skilled
`workers and creates a competitive disadvantage for U.S. companies.
`
` 8
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` CFR § 214 and 274a (2008).
`
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`This justification remains just as pertinent today. OPT provides valuable human
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`capital to the U.S. labor force, and DHS’s special attention to STEM is in line with
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`the conclusions of government agencies which have highlighted the specific
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`shortages of labor faced by the private sector in the STEM labor market. Notably,
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`the President’s Council of Advisors on Science and Technology concluded that
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 16 of 19
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`“Economic projections point to a need for approximately 1 million more STEM
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`professionals than the U.S. will produce at the current rate over the next decade if
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`the country is to retain its historical preeminence in science and technology.” Exec.
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`Office of the Pres., President’s Council of Advisors on Science and Technology,
`
`Engage to Excel: Producing One Million Additional College Graduates With
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`Degrees in Science, Technology, Engineering, and Mathematics, (February 2012),
`
`https://bit.ly/2kCNd7p.
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`And the Bureau of Labor Statistics concluded that “A comprehensive
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`literature review, in conjunction with employment statistics, newspaper articles, and
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`our own interviews with company recruiters, reveals a significant heterogeneity in
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`the STEM labor market: the academic sector is generally oversupplied, while the
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`government sector and private industry have shortages [emphasis added].” Bureau
`
`of Labor Statistics, STEM crisis or STEM surplus? Yes and yes, (2015)
`
`https://bit.ly/2iiJ5eg.
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`STEM also is justified by its important role in driving innovation and
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`economic growth. The OPT Study investigated the role OPT and the STEM
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`extension specifically, had on patenting, a proxy for innovation, and found that by
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`making teams more productive and contributing to technological diffusion, every
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`two OPT students led to a state producing about one additional patent. OPT Study
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`at 5.
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`10
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 17 of 19
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`CONCLUSION
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`
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`For the reasons given herein, the Court should dismiss and remand
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`Washtech’s appeal for lack of standing.
`
`
`
`Respectfully submitted,
`
`/s/ Megan C. Gibson
`Megan C. Gibson
`NISKANEN CENTER
`820 First Street, NE
`Suite 675
`Washington, DC 20002
`301-751-0611
`mgibson@niskanencenter.org
`
`Counsel for Amicus Curiae
`Niskanen Center
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`11
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`CERTIFICATE OF COMPLIANCE
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`1. This brief complies with type-volume limits because, excluding the parts of the
`document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table
`of contents, table of citations, statement regarding oral argument, signature block,
`certificates of counsel, addendum, attachments):
`[X ] this brief contains 2,348 words.
`[ ] this brief uses a monospaced type and contains [state the number of] lines of text.
`2. This brief document complies with the typeface and type style requirements
`because:
`[ X ] this brief has been prepared in a proportionally spaced typeface using
`[Microsoft Word 365] in [14pt Times New Roman]; or
`[ ] this brief has been prepared in a monospaced typeface using [state name and
`version of word processing program] with [state number of characters per inch and
`name of type style].
`
`
`Dated: June 21, 2021
`
`/s/ Megan C. Gibson
`Megan C. Gibson
`
`Counsel for Amicus Curiae
`Niskanen Center
`
`
`
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`
`
`
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`12
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`
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`USCA Case #21-5028 Document #1903048 Filed: 06/21/2021 Page 19 of 19
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 21, 2021, I electronically filed the foregoing
`
`Brief of Amicus Curiae Niskanen Center in Support of Appellee with the Clerk of
`
`the Court using the CM/ECF system, which will send notice of such filing to all
`
`registered CM/ECF users.
`
`
`
`/s/ Megan C. Gibson
`Megan C. Gibson
`Counsel for Amicus Curiae
`Niskanen Center
`
`
`
`
`
`
`
`
`
`
`
`13
`
`
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