Making Government put American Workers before Big Business
January 22, 2016
(Washington, D.C.) – Yesterday, Immigration Reform Law Institute (IRLI) attorneys argued in U.S. District Court for D.C. that the court should deny the U.S. Department of Homeland Security’s (DHS) request to delay the court-imposed deadline by three months to allow it more time to implement a replacement Optional Practical Training (OPT) rule that complies with the Administrative Procedure Act (APA). In August 2015, the federal district court ruled in IRLI’s client’s favor when it struck down an expansion of the OPT program, only to delay the vacatur until February 12, finding that DHS violated the APA when it bypassed the public notice and comment process. IRLI represents the Washington Alliance of Technology Workers, Local 37083 of the Communication Workers of America, AFL-CIO (“Washtech”), an American tech workers union challenging DHS regulations that permit non-student foreign labor to compete with American workers.
At yesterday’s hearing, DHS attorneys claimed that the thousands of comments it received from the public, which must be responded to under federal law, presented an ‘extraordinary circumstance’ making the original deadline impossible to meet. IRLI, however, pointed out to the court that any need for time to review comments was entirely due to strategic choices made by DHS. Specifically, DHS issued the interim rule in 2008. DHS thus had 7 years, 10 months, and 4 days to issue a final rule that complied with the APA but did not do so. Even further, DHS certainly was on notice as early as 2008 that its rule was defective when an American workers association (also represented by IRLI) sued, likewise claiming the interim rule violated the APA. The case was dismissed on standing grounds in the Third Circuit. DHS gambled that no American worker would ever obtain standing to challenge its actions so it did nothing—a bad strategic choice by DHS that is haunting it now. In 2014, Washtech sued DHS over the same issue in the U.S. District Court for D.C. and the court ruled in November 2014 that Washtech had standing to challenge the defective rule.
Dale L. Wilcox, IRLI’s Executive Director, commented, “The government has admitted it could not finalize a replacement rule in the generous time-limit it was allotted but, despite having broken federal law and showing bad faith all along, it now requests from the court that it be given special consideration. The Obama Administration will stop at nothing to break our immigration laws and supply an endless flow of cheap foreign workers and corporate subsidies to its crony pals in the tech industry.” Wilcox continued, “DHS’s problem is entirely its own making as the agency had seven years to issue a rule in compliance with federal law. If the court chooses to give the agency a reprieve, the Obama Administration will be allowed to further chip away at the already precarious position of the American middle class.”