May 3, 2016
On Wednesday, May 3, 2016, an attorney with the Immigration Reform Law Institute (IRLI), the legal arm of FAIR, argued before the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) in a lawsuit it brought to challenge a U.S. Department of Homeland Security (DHS) rule that unlawfully permits aliens who were admitted on a nonimmigrant F-1 student visa to remain in the United States and work after graduation (known as the Post Completion Optional Practical Training (OPT) program). Under statutory law, these former students are required to leave the country immediately after they graduate and in no way is DHS authorized to give them work permits. IRLI represents the Washington Alliance of Technology Workers (Washtech), a labor union of American technology workers who have been forced to compete with these aliens for scarce tech jobs.
The three-judge panel of the DC Circuit heard argument from both IRLI and a U.S. Department of Justice (DOJ) lawyer. Most of the questions posed to IRLI’s attorney focused on a technical jurisdictional issue. Specifically, the court was concerned that it lacked jurisdiction to hear the appeal because it seemed that the district court had never entered a final judgment below after remanding the unlawfully promulgated rule to DHS for a possible fix. IRLI argued that the appeal was not early because the district court had disposed of all issues through summary judgment and there was nothing more for the lower court to do. Nonetheless, the jurisdictional issue is not fatal even if the DC Circuit finds that it currently lacks jurisdiction to hear the case as Washtech could simply refile its appeal after it requests the district court to clarify its order or enter a final judgment.
The questions posed to the DOJ lawyer went to Washtech’s right to bring the case under law and the underlying merits of the OPT rule. First, Judge Kavanaugh stated matter of factly that, under DC Circuit law, Washtech had standing to sue to challenge the rule. “Standing” is required under the U.S. Constitution to maintain a lawsuit in federal court wherein the plaintiff must show that it has been injured by the defendant and the court is capable of fashioning a remedy to fix the injury. Under grilling from Judges Millet and Kavanaugh, DOJ would not concede Washtech’s standing and went so far to state even if an employer were to place a job ad stating, “OPT applicants only, US citizens need not apply” American workers would still not have standing to sue. The question posed by the judges was not a hypothetical situation as Washtech had produced the existence of such an ad as evidence in the case.
Regarding the heart of the case, that is, the lawfulness of DHS’s OPT program, the judges seemed very skeptical. The court aggressively questioned DHS which argued that an alien who had entered the country on a student visa but had graduated could still be classified as a “student” despite the law clearly requiring that only persons attending an academic institution be classified as a “student.” Judge Kavanaugh quipped that calling a person with a full-time job and who is not attending school a “student” makes “hash” of the term “student.” DOJ argued that the limitations on a student visa are merely entry requirements and that it had the authority to allow aliens to stay and work even though they are not in school as the terms of the visa require. Judge Millet quickly saw through the argument and inquired that if this is so then why does the law require schools to report aliens when they drop out of school. Judge Kavanaugh, with an incredulous glance, called DOJ’s theory an “interesting statutory interpretation.” DOJ’s theory is inconsistent with law and totally undermines all the labor protections written into immigration law for the American worker.
In reference to the hearing, Dale L. Wilcox, IRLI’s Executive Director, commented, “The importance of this appeal cannot be overstated as the jobs of millions of American college graduates and workers still remain at risk as the Obama Administration has recently revived the job-stealing rule that IRLI successfully challenged last year. IRLI will continue the fight in court for the American worker and hold the Obama Administration accountable to the rule of law.” IRLI expects an opinion within the next couple of months. (IRLI Press Release, May 3, 2016)
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