IRLI represented three professional organizations, the Programmers Guild, American Engineering Association, and Brightfuturejobs.com, as well as individual American STEM (science/technology/engineering/math) workers, in a federal lawsuit against U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff and DHS alleging that its new Optional Practical Training (OPT) regulations extending employment authorization to former students from 12 months to 29 months violates the Administrative Procedure Act (APA). The OPT regulations allow unlimited numbers of foreign students to work around the guestworker protections for American labor inserted by Congress in our immigration law. DHS estimated that tens of thousands of aliens will immediately apply under the new regulations.
In the case, IRLI argued (see briefs here and here and here) that our immigration law is very clear that student visas are for students to come to the U.S. solely and temporarily for study. Instead, DHS invented its own guest worker program to circumvent the annual H-1B visa cap. DHS not only took this illegal action but did it as an emergency measure to prevent American citizens from weighing in. The DHS ruling encourages employers to discriminate against U.S. workers. Employers can now use the OPT program to train foreign students for two-and-a-half years, rather than invest in our own domestic IT labor force. These are not jobs that Americans won’t do, or cannot be trained to do. Rather, these are desirable computer programming and engineering jobs that are being denied to U.S. workers with the complicity of the federal government.
The case made its way up to the United States Court of Appeals for the Third Circuit where the court dismissed the case on procedural grounds, ruling in a Non-Precedential opinion that the organizational and American worker plaintiffs did not have constitutional standing to challenge the regulations. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3d Cir. 2009).
IRLI Sues Department of Homeland Security, May 29, 2008