U.S. programmers may fight anti-competitive visa programs in federal courts
August 12, 2015
(Washington, D.C.) – Today, the U.S. District Court for the District of Columbia ruled in favor of an American tech workers union that brought a lawsuit challenging a U.S. Department of Homeland Security (DHS) regulation that permits non-student foreign labor to compete with American workers (court opinion attached here). The court struck the rule, finding that DHS did not comply with the Administrative Procedure Act (APA) when it bypassed the public notice and comment process mandated by the APA. 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.
The case, Washington Alliance of Technology Workers v. USDHS (Civil Action No. 14-529), was brought by the Immigration Reform Law Institute (IRLI) on behalf of several displaced American technology workers. In the case, the 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. District Judge Ellen Huvelle disagreed. Judge Huvelle also found that there was no tech worker or fiscal emergency when DHS suddenly expanded the Optional Practical Training program in 2008, even as the US economy headed into a major recession. By circumventing the APA notice-and-comment procedure, she observed that 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. This time, however, the public will have the opportunity to comment on any proposed rule.
Dale L. Wilcox, IRLI’s Executive Director, commented, “The jobs of millions of American college graduates and tech workers still remain at risk as the Obama Administration is likely to revive this job stealing rule. American workers must unite and let their voices be heard in the APA comment process.” Wilcox continued, “I hope that hardworking Americans across the nation will take heart and renew the fight to protect the citizen workforce. IRLI will continue the fight in court for American workers and hold the Obama Administration accountable to the rule of law.”