Washtech v. U.S. Department of Homeland Security
IRLI brought this lawsuit on behalf of American tech workers who are forced to compete with nonimmigrant foreign laborers working unlawfully on student visas to bypass the American worker protections established in law. Specifically, IRLI represents the Washington Alliance of Technology Workers, Local 37083 of the Communication Workers of America, the AFL-CIO (Washtech), in this suit challenging the use of foreign labor in particular occupations where suitable American workers are available.
This case is the second time that we have challenged the 2008 Chertoff/Bush Optional Practical Training (OPT) expansion, which permits F-1 visa holders in STEM (Science, Technology, Engineering and Mathematics) fields to remain in the country and work for an extended 29 months after graduation—all at the expense of jobs for American workers. The F-1 visa was created years ago as a form of foreign aid to provide training for students and future leaders of foreign countries and was never intended either to poach other countries’ top talent or displace our own talent.
On August 12, 2015, the U.S. District Court for the District of Columbia ruled in part in our favor and struck down the OPT expansion rule, finding that the Department of Homeland Security (DHS) did not comply with the Administrative Procedure Act (APA) when it bypassed the public notice and comment process. Despite finding the rule unlawful, the court delayed vacating the rule until February 12, 2016 to give DHS time to implement a new rule in its place.
The court also rejected DHS’s assertion that American workers do not have standing to sue when the government implements a rule that increases the potential for more competition in their job market. IRLI is making groundbreaking progress in pioneering new law in the troublesome area of standing. In this case, the Obama Administration argued that American workers who could not show that a specific foreign former student took their job were no more than disgruntled taxpayers who had no rights the government would consider or protect. The court disagreed and also found that there was no tech worker or fiscal emergency when DHS suddenly expanded the OPT program in 2008, even as the U.S. economy headed into a major recession. The court observed that, by circumventing the APA notice-and-comment procedure, DHS had improperly considered only the desires of Bill Gates of Microsoft and other “interested stakeholders” from multinational corporations.
On the minus side, the court found that the key word “student” in the immigration code is “ambiguous” and deferred to the agency’s interpretation that includes those not attending school. The court also blamed Congress for having “acquiesced” when executive action expanded the student visa program in order to circumvent the “cap” on H-1B workers. The court remanded the matter to the agency and gave it time to issue a new rule.
In October 2015, DHS issued a notice in the Federal Register of its proposed revised OPT rule. “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and CapGap Relief for All Eligible F-1 Students.” This time, however, as a result of our litigation the public had the opportunity to comment on DHS’s proposed rule. The proposed rule expands the OPT program by allowing foreign STEM degree-holders to remain in the country and work on their “student” visas for as much as 3 years after they graduate from a U.S. school.
IRLI submitted a detailed comment arguing that the proposed rule is unlawful because, (1) Congress delegated authority to define periods of employment for student visa holders to the Treasury Department, not DHS; (2) The Immigration and Nationality Act (INA) does not delegate unlimited agency authority over the conditions of admission for nonimmigrants to DHS, but instead clearly requires that an alien leave the United States once the terms of temporary admission have been completed, such as a student visa holder graduating from school, and the INA certainly does not give DHS the authority to grant work permits to whomever it desires; (3) The rule is procedurally and substantively arbitrary and capricious; and (4) the OPT program described in the proposed rule would impermissibly facilitate prohibited employment-related discrimination on the basis of alienage and national origin.
In late December 2015, DHS requested that the court extend the vacatur until May 2016 because it could not make the deadline established by the court. Despite IRLI opposing such extension, the court granted DHS’s request, IRLI appealed the extension of time to the United States Court of Appeals for the D.C. Circuit.
Weeks after receiving the decision in August 2015, IRLI also appealed the unfavorable portions of that decision and an earlier decision stating that Washtech did not have standing to challenge the OPT program as a whole. On appeal, IRLI renewed its argument that the OPT program as a whole (not just the 2008, 2011, and 2012 expansions) is in excess of DHS’s statutory authority.