The U.S. District Court for the District of Columbia ruled against DHS in a lawsuit over the regulation that allows non-student foreign labor to compete with American workers. The court struck down the rule saying that DHS did not comply with the Administrative Procedure Act (APA) when it bypassed the public notice and comment process as required.
The lawsuit case, Washington Alliance of Technology Workers v. USDHS (Civil Action No. 14-529), was brought forward by the Immigration Reform Law Institute (IRLI) in defense of several American technology workers who had been displaced by foreign workers under the Optional Practical Training (OPT) program. When established, the program gave foreign students at U.S. universities an opportunity to work for 12 months in the U.S. after graduation. In 2008, the Bush Administration expanded the OPT program by given foreign students in STEM curricula the ability to work for up to 29 months after graduation.
The plaintiffs argued the expansion was established by executive action without a rulemaking and public comment as the APA requires. DHS argued that the plaintiffs could not show that a specific foreign former student had taken their job and suggested they were disgruntled workers angry about increased job competition.
District Judge Ellen Huvelle concluded the executive action violated APA requirements since there was no emergency tech worker shortage that necessitated OPT expansion without a rulemaking, especially when the U.S was heading into a major recession. The judge also criticized Congress for not challenging the executive action. She said it essentially expanded the F-1 student visa program in an effort to avoid statutory limits on H-1B visas. Judge Huvelle remanded the matter to DHS, which must now issue a rule, this time in accordance with APA requirements.
“This is a rare slap in the face for the tech industry and the Executive Branch officials who do tech’s bidding," said Professor Norman Matloff of the University of California, Davis. " It may, however, turn out to be a slap on the wrist rather than in the face, as Judge Huvelle did give the defendants a way out...In legal terms, the most significant aspect of this ruling is that the judge declared that the plaintiffs did indeed have standing to sue, contrary to a decision in an earlier case. This is sure to have implications down the road,” he said.
Dale L. Wilcox, IRLI's Executive Director, said the decision highlights how DHS circumvented APA notice and comment procedures, and shows that the Bush Administration unjustifiably put the desires of "interested stakeholders" from multinational corporations ahead of the American worker and taxpayer. He further noted, "The jobs of millions of American college graduates and tech workers still remain at risk as the Obama Administration is likely to revive this job stealing rule. American workers must unite and let their voices be heard in the APA comment process."
Although the Bush Administration issued the executive action in question, the Obama Administration defended it in court. The case could have implications for the lawsuit brought by 26 governors and attorneys general concerning the Obama Administration's executive amnesties under the Deferred Action for Childhood Arrivals (DACA) program and Deferred Action for Parents of Citizens and Legal Permanent Residents (DAPA) program. Both programs were established without a rulemaking and public comment as the APA requires. The case is ongoing but Judge Andrew Hanen already issued a temporary injunction halting extended DACA/DAPA implementation based on failure to meet APA requirements.
Read more about the case here.
