Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On the heels of President Obama’s announcement of his immigration executive action plan, a federal court has permitted a suit by a technology workers union to continue against the Department of Homeland Security (DHS). The union takes issues with the 2008 DHS decision to extend the length of a student-to-worker visa program for those in scientific fields from 12 to 29 months.
Judge Ellen Segal Huvelle of the D.C District Court has permitted the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security lawsuit to proceed. In this case, the union organization alleges the DHS caused “injury to its members through increased competition for STEM [science, technology, engineering, and mathematics] jobs,” Judge Huvelle’s decision explains.
The program at issue is the Optional Practical Training program (OPT), which allows foreigners in the United States on F-1 student visas to remain working after graduation for a set period of time. Employers prefer to use the F-1 program for two main reasons. First, OPT positions are exempt from Medicare and Social Security payments, saving employers significant costs, and second, employers lack other, viable options. The next-best choice for an employer looking to expand its science and tech work force is H-1B visas, which are notoriously limited and oversubscribed.
Originally, recent grads could only work in their fields within the United States for one year, but in 2008 the DHS extended the time period another 17 months, due to what the agency perceived as a serious need in the market place. The union claims that there is no dearth in STEM jobs, and that the agency overstepped its authority by extending the time limit, which would mean DHS is unlawfully pushing its members out of the market. The DHS contended that the union could not bring the suit forward at all.
Judge Huvelle sided with the union on the majority of the issues. However, employers should not see this as a loss. The F-1 visa expansion is not in danger yet, as this litigation will likely proceed for years to come. What much of the media coverage leaves out is that this suit was filed in March of this year, and this attempt by the DHS to have the suit disqualified was a motion to dismiss, which is a defendant’s first opportunity to defeat a law suit. The good news, it won’t be the last.