opt dhs program american technology plaintiffs court

techsuch May 9, 2021 0 Comments

Technology Industry and Foreign Workers(Dmitriy Shironosov/Dreamstime) A post-graduate student-visa program is justanother scheme to displace American technology workers.American technology workers won a big victory in the federal courts thismonth. The D.C. District Court ruled that a STEM-related visa program createdby the Department of Homeland Security was potentially damaging to thedomestic labor market and also in violation of federal rule-making procedure.For the plaintiffs in the case, the Washington Alliance of Technology Workers,however, the fight against BigTech lobbyists and Homeland Security has onlyjust begun.DHS’s so-called Optional Practical Training (OPT) program allows foreignnationals to live and work in the U.S. on a student visa even aftergraduation. In a rule promulgated by DHS in 2008, foreigners graduating in aSTEM field at a U.S. school had these authorizations extended to nearly twoand a half years after their graduation. U.S. employers love this because, ontop of the longer work period, they have a greater chance to transition theminto the H-1B program, a “professional specialty worker” visa that can last upto an additional six years. Also, employers receive a tax benefit for hiringOPT participants over Americans, as they do not have to pay Medicare andSocial Security taxes for aliens on student visas.Plaintiffs’ counsel, the Immigration Reform Law Institute (which I work for),argued in court that the OPT extension, created not by statute but entirely byDHS, was really just a way to circumvent the existing H-1B cap of 65,000annual visa grants set down by Congress years before. Helpfully for us, DHShad already admitted that this was the purpose for the extension. As itexplained in the agency rule creating the extension, “the H-1B category isgreatly oversubscribed,” which, as a result, has “adversely affected theability of US employers to recruit and retain skilled workers.” With the H-1Bcap having been held up by Congress over the last few years, DHS did the nextbest thing. As H-1B guru Norm Matloff describes in a blog post discussing ourcase, the agency simply went ahead and created “a de facto expansion of H-1B.”Let me digress for a moment on the H-1B lottery and the “oversubscription”issue. Unlike other visas, the fees for H-1B applications are refundable;there is no penalty for oversubscribing. As a consequence, heavy H-1B users,such as the outsourcing firms that supply BigTech companies as well as BigTechcompanies themselves, always apply for more visas than they really want inorder to get close to their target. David North at the Center for ImmigrationStudies explains the process here. So when you hear in the press and elsewherethat “petitions have outstripped slots yet again by two-to-one,” the numbersare merely a reflection of companies’ trying to game the lottery system.RELATED: The H-1B Visa Program Gives American Workers a Raw DealAs Matloff explains, OPT is “just as harmful as H-1B.” The two programs arenow similar in size, and the benefits to BigTech are also similar. Like H-1Bholders, OPTs are younger than most American technology workers, and thereforecheaper. Citing the “prevailing wage” rules that technically exist for H-1Bs,Matloff notes that “the legal wage floors for H-1Bs depend on experience” (theworker’s age, in other words), “so hiring young H-1Bs in lieu of olderAmericans is legal.” As he says with cases such as SoCal Edison and Disney,“age was the key factor underlying the wage savings accrued by hiring H-1Bs.”See this link for information on a similar suit against Google based on agediscrimination (which the company has since settled).> The OPT program, like H-1B, allows BigTech firms to flood the labor market,> creating artificial competition and pressuring the standard of living we’ve> earned through decades of hard-fought reforms.In the case of OPTs, however, this “wage floor” isn’t even available; beingrecent graduates, they’re all young (and cheap). Further, OPT participants areeven cheaper to employ because, as stated earlier, aliens on student visas areexempted from Social Security and Medicare.Fundamentally, the OPT program, like H-1B, allows BigTech firms to flood thelabor market, creating artificial competition and pressuring the standard ofliving we’ve earned through decades of hard-fought democratic and laborreforms. The cost savings, meanwhile, get siphoned up by private technologyfirms, many of which grew out of taxpayer-funded military programs.{{#each posts}}{{/each}} Thankfully, much of this wasn’t lost on the judge. DHS had asserted that ourplaintiffs didn’t have standing to sue because (a) they couldn’t prove an OPTparticipant actually took one of their jobs (an impossible and unfair demand)and, in the alternative, (b) the plaintiffs were currently employed and socouldn’t show any injury — all are employed, mostly in contract positions. Thejudge knocked down both arguments by pointing out that “an influx of OPTcomputer programmers would increase the labor supply, which is likely todepress plaintiff’s members’ wages and threaten their job security, even ifthey remain employed” (emphasis added).RELATED: ’You’re Fired — Now Train Your Replacement’More concrete evidence was also offered. Plaintiffs showed examples of jobadvertisements where only OPT participants were requested to apply. As Matlofflikes to note, these companies are not just using H-1Bs and OPT participantsto replace American workers, as in the SoCal Edison and Disney cases; they’realso hiring them instead of American workers. And many times, it isn’t “highlyskilled” types that are being imported but simply “ordinary people, doingordinary work.”The benefits of circumventing the H-1B program are apparently big. Arguingthat DHS’s chosen 29-month extension period was an arbitrary and thereforeinvalid decision, plaintiffs showed the court that industry lobbyistsCompeteAmerica, lobbyists from Microsoft and the Chamber of Commerce, andothers had all been in contact with DHS requesting the same 29-monthextension. And showing just how eager it was to comply, DHS implemented therule without going through the statutorily mandated notice-and-comment period,a window of time in which the public can criticize agency action.DHS tried to argue in court that skipping the process was necessitated by alooming “fiscal emergency” in the U.S. economy that could be ameliorated onlyby letting “tens of thousands of OPT workers” join the tech industry. Whoseeconomic analysis did DHS cite to back this up? Studies from the technologyindustry itself.Ultimately, although the court knocked down the OPT extension on proceduralgrounds, the victory is only temporary. DHS can open up the rule to notice-and-comment and try again.#related#Further, the judge rejected our argument that the program violatesthe law on other, more substantive (and less procedural) grounds. According tocongressionally made statute (Immigration and Naturalization Act §1101(a)(15)(F)(i)), student visas cannot be allocated for working purposes andmay be allocated only to “bona fide students . . . solely for the purpose ofpursuing such a course of study . . . at an established . . . academicinstitution” (emphasis added). But again, OPT, entirely a DHS creation,purports to let student-visa holders join the workforce. By ignoring thestipulations of Congress, the program exceeds DHS’s statutory authority.By giving DHS the authority to redefine what a “student” is, the court isallowing the agency to set the duration and conditions of a student’s stay,potentially letting them occupy the labor market for years upon years. Goodfor the foreign “student,” good for the trillion-dollar tech industry, but badfor the American worker.— Ian Smith is an attorney who works for the Immigration Reform Law Institute.Ian Smith — Ian Smith is an attorney in Washington, D.C., and a contributingblogger with immigration enforcement advocate, the Immigration Reform LawInstitute.

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