American Tech Workers Seek Reversal

May 6, 2021

IRLI files brief on appeal to protect American jobs

WASHINGTON – Yesterday, the Immigration Reform Law Institute (IRLI), on behalf of its client, Washington Alliance of Technology Workers, filed an opening brief on appeal of a district court ruling that had upheld the Optional Practical Training (OPT) program. Though the OPT program was not created by statute, but by regulation, it has become the largest guest-worker program in the country, and lowers the job prospects and wages of American tech workers.

In its brief, IRLI demonstrates two major flaws in the district court’s ruling. First, IRLI points out that the statute creating the student visa held by OPT workers requires by its plain language that only students enrolled at a university or school are eligible for the visa—and OPT workers are all aliens who have graduated from school and are no longer students. The district court found that it was acceptable for the Department of Homeland Security (DHS) to treat the requirement that aliens be students enrolled in school as only an entry requirement, but IRLI shows the havoc that would result in our immigration system if aliens could enter the country by meeting visa requirements but then stay on after no longer meeting those requirements.

Also, IRLI points out that Congress did not give DHS, an executive-branch agency, the free-wheeling authority to grant work permits to any aliens it chooses—and that a grant of such power, even if Congress had made it, would violate the separation of powers enshrined in the Constitution. And without invoking such a general power to grant work permits, DHS has no authority to give work permits to OPT recipients; the student-visa statute itself does not give any work authorization to foreign students at all.

“The media has largely ignored the problem of DHS creating guest-worker programs through regulation,” said John M. Miano, counsel for IRLI. “The Constitution gives Congress authority over the immigration system, but more labor now enters the U.S. job market through regulation than under laws passed by Congress.”

“Our brief makes it clear that the OPT program was created out of thin air, with no congressional authorization” said Dale L. Wilcox, executive director and general counsel of IRLI. “If the courts let it stand, DHS will be a second Congress, with plenary authority to extend visas beyond their terms and authorize any foreign workers it chooses—often at the behest of big business—to compete with Americans for jobs. We hope the DC Circuit sees how deeply unlawful and unconstitutional that result would be, and reverses the district court.”

The case is Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 21-5028 (D.C. Cir.).