By Joe Guzzardi
August 14th, 2015
American high tech workers scored a major victory this week when the U.S District Court for the District of Columbia ruled that the Department of Homeland Security failed to comply with the Administrative Procedure Act when it established new guidelines for non-immigrant visa employment. The APA is the federal statute that oversees how agencies propose and establish its regulations, and mandates a period of public notice with comment allowed. The court also rejected DHS’s argument that U.S. workers don’t have standing to sue when the federal government implements a rule that increases the probability that Americans will face increased competition in the job market from foreign-born labor.
District Judge Ellen Huvelle disallowed the Obama administration’s argument that since displaced American workers could not directly tie their layoffs to specific overseas workers with diplomas from U.S. colleges, they have no standing. Under the little known Optional Practical Training program, some students with F-1 visas are made eligible for employment for a one-year period. But abruptly in 2008, then-DHS secretary Michael Chertoff announced an extension to 17 months if the student received a degree in the so called STEM fields, science, technology, engineering or math. The extension represented a blow to American workers whose opportunities for employment diminished accordingly.
In general, F-1 visa holders do not have work authorization. But after heavy lobbying by the tech industry, the OPT program began. Judge Huvelle observed that in 2008, the economy was still mired in a deep recession, that no evidence of a worker shortage existed, and that therefore expanding OPT considered only Microsoft’s Bill Gates’ interests as well as the goals of other multinational corporations.
Judge Huvelle also reprimanded the administration for its “ambiguous” definition of “student.” The court noted that DHS’s definition includes many people not currently enrolled. Furthermore, the judge called out Congress for acquiescing to big business’ efforts to indirectly expand the 85,000 H-1B visa cap that includes 20,000 foreign holders of U.S. advanced degrees. The H-1B is another popular non-immigrant visa that allows foreign nationals to work in the U.S.
For decades, American tech workers have fought a mostly losing battle to protect their careers against a huge influx of foreign competition first from H-1B visa holders, and then from F-1 OPT-eligible students. Based on immigration statistics that DHS publishes annually, more than 3 million H-1B visas have been issued since 1975 even as qualified Americans had been fired.
But the recent high profile incidents at Disney and Southern California Edison in which unfairly dismissed Americans had to train their foreign replacements has raised public awareness and generated national outrage about the visa systems’ abuses.
Countless non-partisan studies and news stories from liberal-leaning publications have found that no tech shortage exists, that Silicon Valley is downsizing, and that importing foreign workers benefits industry executives who profit from the lower wages they pay to the visa holders. Critics refer to the claim tech industry giants make about shortages of qualified American workers as “the big lie.” Last year, the Los Angeles Times reported that more than four in five college graduates, 81.6 percent, in supposedly hot fields like engineering, technology, and math don’t have jobs. Analysis similar to that published in the Times also appeared in the Washington Post, The Hill, and Computer World.
Judge Huvelle’s decision is a long overdue morale booster for imperiled American tech workers, and college students who hope to pursue degrees in STEM. But while OTP is wounded, it’s not dead. The court has asked DHS for a revision, but with public comment allowed. Strong input from concerned citizens about American workers’ fate will be needed to protect jobs.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]