Appeals court decision finds U.S. tech workers
have standing in action against DHS student visa policies
WASHINGTON—The U.S. Court of Appeals for the D.C. Circuit has reversed a lower court ruling that U.S. technology workers represented by the Immigration Reform Law Institute (IRLI) did not have standing to sue the Department of Homeland Security (DHS) and that IRLI did not sufficiently plead the case to survive a motion to dismiss.
The case has major implications for the ability of American workers to challenge certain elements of actions initiated by the Obama administration that dramatically expand the number and duration of student work visas.
IRLI is challenging a DHS program called Optional Practical Training (OPT), which unlawfully permits non-student aliens to remain and work in the United States on student visas after graduation. IRLI represents the Washington Alliance of Technology Workers, Local 37083 of the Communications Workers of America, AFL-CIO (Washtech), a labor union that represents American technology workers throughout the U.S. who are forced to compete for jobs with foreign labor.
Because of today’s ruling, the lower court must now consider IRLI’s claim that DHS’s policy of allowing aliens to remain in the U.S. after completion of a course of study to work or be unemployed is beyond the agency’s authority, which is restricted to admitting academic students under 8 U.S.C. § 1101(a)(15)(F)(i).
“This is a huge victory for American workers,” said Dale L. Wilcox, IRLI's executive director and general counsel. “Allowing non-student aliens to remain and work in the country on student visas after graduation is unlawful and takes job opportunities away from U.S. citizens. The technology workers we represent deserve to have their case heard. The Court of Appeals rightfully recognized this in its decision.”
In 2015, IRLI was successful in challenging a 2008 OPT program extension for STEM (Science-Technology-Engineering-Mathematics) alien graduates as violating the notice and comment requirements of the Administrative Procedure Act. In 2016, the Obama administration reissued the rule, which IRLI has challenged again in this case.
The case is Washington Alliance of Technology Workers v. USDHS, No. 17-5110 (D.C. Circuit).
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