H-1B Visa Beef May End Up in Supreme Court

H-1B visa opponents have turned to the Supreme Court in a last-ditch effort to overturn a 2008 Department of Homeland Security decision that the Programmers Guild, the Immigration Reform Law Institute and others claim is a back-door circumvention of the H-1B visa cap.

In a Nov. 13 filing, the coalition asked the Supreme Court to hear the case after a U.S. District Court in New Jersey and the U.S. Court of Appeals in Philadelphia both rejected the original lawsuit. The Supreme Court is not obligated to hear the case.

The DHS decision under the former Bush administration extended from 12 months to 29 months the amount of time STEM (science, technology, engineering and mathematics) students are allowed to work after graduation under the OPT (Optional Practical Training) program. The IRLI claims the decision allows unlimited numbers of foreign students to work as candidate H-1B workers, directly competing with qualified Americans.

The Court of Appeals held that American STEM workers do not have the standing to challenge the regulation because they are not within the zone of interests of the foreign student visa provision.

In seeking a Supreme Court hearing, the IRLI said the relevant question before the court is "whether American [STEM] workers can challenge changes to U.S. Department of Homeland Security regulations which allow aliens in those fields to work in the United States for an extended period of time after graduation as 'foreign students.'"

The IRLI claims immigration law is clear that student visas are for students to come to the United States solely and temporarily for study. The DHS, the IRLI said, "invented its own guest worker program to circumvent the annual H-1B visa cap." The filing also claims the DHS chose to extend the time foreign students could stay in the United States as an "emergency measure to prevent American citizens from weighing in."

Employers can now use the OPT program to train foreign students for two-and-a-half years, rather than invest in our own domestic IT labor force, charged John Miano, an attorney and advocate for programmers working with IRLI. Miano added that these are not jobs that Americans won't do or cannot be trained to do.

Rather, the lawsuit claims, they are desirable computer programming and engineering jobs that are being denied to U.S. workers with the complicity of the federal government.