On Monday, December 21, 2015, IRLI filed an opening brief (attached here) in its appeal on behalf of an American tech workers union challenging U.S. Department of Homeland Security (DHS) regulations that permit non-student foreign labor to compete with American workers. In August, a federal district court judge ruled in IRLI’s favor when it struck down an expansion of the Optional Practical Training (OPT) program, finding that DHS violated the Administrative Procedure Act (APA) when it bypassed the public notice and comment process. The court also ruled, however, that DHS possesses the statutory authority to implement the OPT program and IRLI’s clients do not have legal standing to challenge the OPT program as a whole (not just the 2008, 2011, and 2012 expansions). IRLI has appealed the unfavorable portions of the decision to the D.C. Circuit.
In its brief, IRLI proves that DHS has overreached its authority by allowing F-1 student visa holders to remain and work (or be unemployed while looking for work) in the United States after graduation. IRLI shows the court that the law clearly requires any person in the United States on a student visa be “a bona fide student, solely pursuing a course of study, at an approved academic institution that will report termination of attendance.” IRLI also debunks DHS’s alleged authority to allow any alien of its choosing to work in the United States as contrary to the INA and the American labor protections embedded in that body of law. Finally, IRLI argues that its clients do have standing to challenge the entire OPT program because its clients are harmed by the additional competition just as much by the 12-month term created in the original 1992 OPT rule as they are harmed by the 2008 OPT extensions.