On Monday, August 8, a U.S. district court judge awarded the Washington Alliance of Technology Workers (WashTech) $42,000 in attorneys’ fees and litigation costs in their suit against the Department of Homeland Security (DHS). (SeeLaw360, Aug. 8, 2016) WashTech, which is represented by FAIR’s legal arm the Immigration Reform Law Institute (IRLI), had sued DHS over its decision to bypass the notice and comment period required by law in 2008 when it extended the Optional Practical Training (OPT) program by 17 months for foreign nationals with STEM degrees. The federal judge agreed and vacated the 2008 STEM OPT expansion but she stayed her ruling to allow the Obama administration time to implement a new rule. Noting that the cancelation of the 2008 STEM OPT rule meant the court found DHS violated the Administrative Procedures Act (APA), IRLI declared victory and demanded that DHS pay WashTech’s attorneys’ fees and litigation costs. Although the judge refused to approve the over $400,000 in fees WashTech sought, she did require DHS to pay $42,000 for what she called a “marginal victory.”
At issue in the WashTech case is the OPT program, an administratively-created guest worker program to undermine the American workforce. Congress initially established a way for foreign nationals to enter the United States through the F-1 visa on a temporary basis to obtain an education and then put their schooling to work in their home countries. (8 U.S.C. § 1101(a)(15)(F)(i)) The F-1 visa required these aliens to leave within 60 days of graduating. (8 C.F.R. § 214.2(f)(5)(iv))The Executive Branch, seeking a way for these foreign nationals to remain in the country, created the OPT program which allowed foreign college graduates to retain their F-1 foreign student visa status in order to work for 12 months after graduation. (8 C.F.R. § 214.2(f)(10)) In 2008, the Bush administration abandoned all pretenses that OPT was geared toward students and extended the period of OPT for foreign nationals on an F-1 visa with a STEM degree by an additional 17 months—for a total of 29 months of work authorization after degree completion. The Bush administration implemented this rule without notice and a comment period (as required by the APA) by claiming a labor shortage dictated the necessity.
As noted above, IRLI challenged the STEM OPT expansion and the judge vacated the 2008 rule finding there was no emergency that allowed the Bush administration to violate the notice and comment requirements of the APA. (SeeLaw360, Aug. 8, 2016) Unfortunately, DHS, under the Obama administration, instituted a replacement rule in compliance with the APA that extended the period of OPT for foreign nationals on an F-1 visa with a STEM degree by an additional 2 years – for a total of 36 months after degree completion. Although receiving any fee award under the Equal Access to Justice statute is an impressive achievement for IRLI as the awards are typically handed out to open-borders litigation groups, IRLI has appealed the lower court’s fee ruling as inadequate to the D.C. Circuit.