A Legal Win for Tech Workers

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.

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6 thoughts on “A Legal Win for Tech Workers

  1. As one of the original plaintiffs in the 2008 lawsuit against DHS, I’m gratified that harmed experienced American citizen technical professionals such as myself have finally been granted standing. I recognize that plaintiff’s Attorney John M. Miano deserves accolades..

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  2. I think the next step DHS would take is directly put a proper rule making in place (in compliance with APA) for a 6 year OPT extension. After such a ruling there is a high chance that there could be a lot of opposing comments but as you mentioned, sufficient people need to come out and speak up.

    The court ruling partially went in favor of the American Tech mainly because of the mistake DHS made in 2008 by not complying with the APA. Secondly the most important aspect as you also mentioned, is that the court thinks in this case the Plaintiff’s do have a legal standing. .. Well frankly it is somewhat obvious because it a direct STEM worker vs STEM immigrant case. In other cases such as the work permits for CERTAIN H4’s it would be difficult to prove that.. Off course it is possible ,but it will take time to build evidence that significant majority of H4’s are also being abused in the STEM just like OPT STEM.

    However within the court ruling there is also a major Conclusion that media ( http://www.prnewswire.com/news-releases/federal-court-strikes-down-dhs-rule-permitting-foreign-labor-to-compete-with-american-workers-300127960.html) is failing to recognize. One of the major assertions that Mr. Miano is making is that DHS does not have the statutory authority to enact such rules. To which the court very concisely answers:
    “Plaintiff also contends that “[t]here is not a scintilla of a statutory authorization for DHS
    to use student visas to remedy labor shortages.” (Pl.’s Mot. at 22.) The Court disagrees. DHS
    has been broadly delegated the authority to regulate the terms and conditions of a
    nonimmigrant’s stay, include its duration. See 8 U.S.C. § 1103(a); id. § 1184(a)(1). One of
    DHS’s statutorily enumerated goals is to “ensure that the overall economic security of the United
    States is not diminished by efforts, activities, and programs aimed at securing the homeland.” 6
    U.S.C. § 111(b)(1)(F). Moreover, a significant purpose of immigration policy is to balance the
    productivity gains that aliens provide to our nation against the potential threat to the domestic
    labor market. ”

    From the conclusion it atleast looks like this court thinks DHS has the broad authority to enact such rules as long as they are reasonable in the eyes of the court and it does not appear that court can simply abolish those programs . Depending on evidence, the Plantiff’s do have a legal standing to sue. In cases where there is evidence of potential injury, the DHS could also walk away by making certain amendments to the rule . In the OPT case they might end up putting a Prevailing Wage requirement similar to H1B.

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    • Legal standing is a highly complicated issue, so I would not say it is obvious that the plaintiffs had standing here. However, one thing I am sure of is that there is plenty of lattitude on this issue, so that judges can basically do what they want. I’m glad this judge granted standing.

      And no, I don’t think the H-4 situation is less clear. On the contrary, as I understand it, John Miano presented evidence that many of the H-4s will end up in IT.

      I agree that it is troubling that the court felt that DHS does have the power to circumvent Congress, and that she apparently does consider H-1B on the whole to “add productivity” to the nation. Very sad.

      Liked by 1 person

  3. Thank you for this post, Prof.

    As you point out above, what complicates the issue tremendously is that it is nowhere near one-sided. “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…”

    Locally and globally, economic forces are in play which need to be understood. The H-1B and OPT problem goes hand in hand with the repression of prices (inflation) and wages that has been a mainstay of neoliberal monetary/economic policy.

    The astronomic debt levels of the global economy have been able to be maintained because, on the side of manufacturing, we have been able to transfer production to China, where an eager workforce was willing to take on exploitative conditions, was willing to embrace the costs we externalized. Thereby both producers and consumers (hello Walmart!) have become dependent on China for low cost production and low price goods. A race to the bottom.

    The same dynamic is now overtaking the professions of engineering, programming, etc. It can do so because there is an abundance of competent workers overseas who are more than willing to take on the ‘opportunity’ to work in exploitative conditions. (Similar to their counterparts in China; but the willingness goes only so far – see the accounts of the Apple-contracted factories in China, where factory employees committed suicide.)

    The tech industry’s push for low cost production is easily recognized and condemned. But we consumers, with our ever present mantra of ‘low prices’, are also complicit in the worldwide economic dysfunction, one symptom of which is the OPT problem.

    The push for ever lower prices on goods/services must of necessity result in ever lower income for those workers who are producing those goods and services for our consumption. Those producers must of necessity find it more and more difficult to survive, having no choice but to take on increasing debt in the fact of diminishing income. The increasing desperation greases the wheels for further exploitation and disempowerment.

    It is difficult to look further beyond our own nose.

    I love to read. Love. When I found a book I wanted, I would hop on to Amazon, do a search for the book, quickly scan for the cheapest price I could find. “99 cents! Awesome!” I’d click that cheapest option and send it to my shopping cart. I would feel that I, as a consumer, had profited from this transaction.

    I did not recognize that there are always two sides to a transaction, and that the author of this book did NOT thereby profit. Thanks to many millions of transactions just like this, facilitated by the Amazon model, writers have become increasingly deprived of income. One must be now a blockbuster best seller in order to be assured of ‘making a living’ from the art of writing.

    When we were young and idealistic, what were our formative influences? A powerful book we had read. A magnificent song that lifted our spirits. A painting that mesmerized us… It was never this nice easy chair, or that sexy television set, etc. It is the spiritual/cultural products that feed our souls, the work of the artists.

    And yet our consumer behaviors have undercut this source of life. Music piracy, buying 99 cent books from Amazon, etc. The impoverishment of artists – when artists can no longer afford to produce – is an impoverishment of us all. That is the thing I did not realize. I was too focused on my short-term gain as a consumer.

    Truly, we are all in this together. But we have not yet realized it.

    Liked by 1 person

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