Federal judge: Workers can challenge OPT extension

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Credit: G. Grullón

In a decision that could affect the immigration plan President Barack Obama announced on 20 November, a federal judge decided on 21 November that the Washington Alliance of Technology Workers (WashTech), an organization based in Bellevue, Washington, and affiliated with the national Communication Workers of America (CWA) union, can bring a lawsuit challenging the federal government’s right to extend by executive action the authorization for foreign students to work in the United States under the Optional Practical Training (OPT) program. Such an extension is a key feature of the president’s plan, as our colleagues David Malakoff and Jim Austin have reported.

The suit and the decision, which coincidentally came a day after Obama’s announcement, do not directly challenge the extension of the OPT program that he proposed but, rather, one authorized by President George W. Bush in 2008. President Bush’s extension allowed students in science, technology, engineering, and mathematics (STEM) fields to extend their OPT status 17 months beyond the previous 12-month limit. If successful, the suit could nonetheless threaten President Obama’s power to enact his extension as well.

It is reasonable to infer that the named members, who have technology-related degrees in the computer programming field and have applied for STEM employment during the relevant time period, were in direct and current competition with OPT students on a STEM extension.

—U.S. District Judge Ellen Segal Huvelle

OPT is most notorious in the tech sector, where critics contend that some companies specify OPT status as a condition for hiring for some jobs, seemingly discriminating against American workers. Foreign science students studying in the United States also often rely on OPT extensions to stay in the United States and work during, for example, gap years before graduate school. OPT status can also be used by graduate students still working on their dissertation research when they’re no longer taking classes or when they are enrolled for fewer than nine credit-hours per semester.

In her decision, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia dismissed objections to the suit by the defendant, the Department of Homeland Security. She ruled that the plaintiff has standing to bring the suit because there is sufficient evidence that three WashTech members, “all computer programming specialists,” in the judge’s words, suffered harm from competition with OPT students. The three “have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008,” Huvelle wrote. “According to the Complaint, the three named WashTech members only applied for STEM positions between 2008 and 2012 and were unable to obtain those positions because they were filled by OPT 17-month extension recipients.”

 “It is reasonable to infer that the named members, who have technology-related degrees in the computer programming field and have applied for STEM employment during the relevant time period, were in direct and current competition with OPT students on a STEM extension. This competition resulted in a concrete and particularized injury,” the judge continued.

“The Obama administration and its congressional allies have repeatedly stated that they believed the president's executive memos were immune from judicial review in federal court. Today's decision in the Washington Alliance case demonstrates that this is not true,” says a statement by Dale Wilcox, executive director of the Immigration Reform Law Institute (IRLI), a nonprofit “public interest legal education and advocacy organization dedicated to advocating for the rights and interests of United States citizens in immigration-related matters,” according to its website. IRLI brought the lawsuit on the tech workers’ behalf.

For its part, the CWA expressed broad support for President Obama’s executive action on immigration while expressing concern about “the President's concession to corporate demands for even greater access to temporary visas that will allow the continued suppression of wages in the tech sector. Through the new rulemaking process that was added as a part of this executive action, CWA will press for fair treatment and protections for both U.S. and foreign-born tech workers.” Stay tuned for developments.

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