During the 20 years I’ve been writing on the H-1B work visa and related issues, I’ve heard from lots of frustrated and angry engineers and programmers. Yet, sadly, the tone has changed in the last few years. Earlier, they viewed Congress positively, with the assumption that legislators will “do the right thing” once the widespread abuse of H-1B is explained to them, but in the last few years, I hear from many who feel that this system is solidly stacked against them.
The disheartened should be elated by today’s court decision in favor of a group of tech workers. The plaintiffs had claimed harm from DHS’ 2008 extension of the Optional Practical Training program, which gives foreign students at U.S. universities the right to work in the U.S. for a period after graduation. The judge vacated the 2008 action, which extended the work rights period from 12 to 29 months for STEM students.
What will be particularly satisfying to American tech workers is the court’s finding that
Moreover, by failing to engage in notice-and-comment rulemaking, the record is largely one-sided, with input [cited by DHS in setting the extension] only from technology companies that stand to benefit from additional F-1 student employees, who are exempted from various wage taxes.
This is a rare slap in the face for the tech industry and the Executive Branch officials who do tech’s bidding. It may, however, turn out to be a slap on the wrist rather than in the face, as Judge Huvelle did give the defendants a way out.
The judge found that DHS had not properly put the proposed extension out for public comment, and she also declined to take the “disruptive” step of having her decision implemented immediately. DHS, in other words, may be able to keep its extension if DHS belatedly complies. As you can imagine, when DHS does put this out for comment, it will be inundated with letters of support for the extension by thousands of foreign students, employers, immigration attorneys and so on. And, DHS may appeal the ruling.
The question then will become whether enough of those who oppose the extension will speak out. In addition to the typical reticent personalities of programmers and engineers and the lack of a large, effective organization, there is the problem that most of them simply don’t realize how much OPT is hurting them. As I’ve explained recently, OPT is just as harmful as H-1B, and is rapidly becoming the H-1B cap workaround for employers; indeed, DHS has openly described it as such.
In legal terms, the most significant aspect of this ruling is that the judge declared that the plaintiffs did indeed have standing to sue, contrary to a decision in an earlier case. This is sure to have implications down the road.
So, finally, a win for the underdog! Not a full win, but certainly encouraging.