Victory! Tech Worker Jobs Case May Proceed

July 2, 2019

IRLI beats back dismissal of suit to strike down foreign student visa expansion

WASHINGTON – Yesterday, a labor union called the Washington Alliance of Technology Workers (Washtech), represented by the Immigration Reform Law Institute (IRLI), defeated a motion by the Department of Homeland Security (DHS) to dismiss Washtech’s lawsuit challenging a program DHS created to allow former foreign students to live and work in the United States. The case will now proceed to the merits stage, in which the court will decide whether or not the program should be shut down.

In creating student visas, Congress laid down strict rules. Foreign students have to leave the country when they graduate from school, and they cannot work in the United States. Without any basis in the law, or any other enactment by Congress, in 1992 DHS’s predecessor agency, the Immigration and Naturalization Service (INS), created the Optional Practical Training program (OPT) which allows former foreign students to stay in the country after graduation and work on their expired “student” visas. Not only is the program in violation of our immigration law, but INS initiated the program without notice and comment to the public, which is required by the Administrative Procedure Act (APA). The tech companies enjoy a tax advantage by employing these non-student “students.” The losers in this program are American tech workers, who now have to compete with cheaper foreign labor.

IRLI successfully challenged the 2008 expansion of this rule. In 2015, a federal court struck down the expansion as violating the APA’s notice and comment requirements. President Obama doubled down the next year by reissuing the rule and extending the time period foreign graduates could live and work in the U.S. If IRLI’s lawsuit is successful, the entire program will fall to the benefit of the American worker in higher wages and more opportunities.

“This victory is important because it is necessary if our client’s members are to prevail in the end – and they will,” said John M. Miano, of counsel for IRLI. “DHS cannot just legislate any rules it wants, or that industry wants. It has to have congressional authorization. And there is no way a student visa category that mandates that its recipients leave the country when they graduate, and forbids them to work, authorizes DHS to let them stay, and also work, when they are no longer students – all at the expense of America’s tech workers.”

“A recent study showed that American technology workers are far and away the best in the world,” said Dale L. Wilcox, executive director and general counsel of IRLI. “That stands to reason, since they built the technology that has revolutionized our lives while adding untold wealth to this and many other countries. The Bush and Obama-era rules are just an effort by tech companies – which heavily influenced DHS here, and still do – to get out of paying American tech workers what they are worth. We look forward to arguing the merits of this vital case, and setting a precedent that will help protect Americans’ livelihoods across the board.”

The case is Washtech v. DHS, No. 1:16-cv-01170 (D.D.C.).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]