Saturday, August 09, 2008

Full Speed Ahead for OPT

Here is one of Norm Matloff's great articles:

As I reported here in June, the Programmers Guild filed a lawsuit against the federal government, seeking an injunction against the Dept.

of Homeland Security decision to extend the Optional Practical Training component of the F-1 student visa. Though the legislative intent of OPT was to give foreign students a chance to acquire practical work experience before returning to their home countries, in recent years the international students have used OPT as a holding pattern while waiting for an H-1B visa. The DHS decided to extend OPT eligibility from the 12 months specified in the statute to 20 months, in order to give the students more chance to become H-1Bs. PG objected that this would bring harm to its members, and that DHS had exceeded its authority. See

The judge in the case has now rejected PG's request for an injunction, primarily on the grounds that PG lacks legal standing to sue. This of course is always the easy way out for a judge, as it allows them to avoid addressing serious fundamental issues, in this case the issue of the adverse impact the H-1B program has on American workers. But the judge really went through contortions to rule on the basis of standing, in my view.

In her nine-page written opinion, Judge Hochberg claims that PG "seeks relief that no more directly benefits Plaintiffs than it does the public at large." In other words, the judge is asserting that the H-1B program, about 40% of whose participants work as programmers, doesn't affect U.S. programmers any more than it affects, say, American insurance agents, whose profession is not open to H-1Bs. This is absurd.

Even more absurd is the judge's statement that "even if there was a nexus between Plaintiffs' injury and DHS action, the injury still is not `irreparable' to qualify for injunctive relief because it is economic harm compensable in damages." This is downright bizarre. The judge cites case law in support of her statement, yet that case in question involved a worker who had been fired. The court in that instance refused to grant the worker's request for injunction against his discharge, on the grounds that the worker could sue his employer for monetary damages. Obviously, that is not the situation here, as members of the PG cannot sue DHS for monetary damages, nor can they sue employers of H-1Bs, as H-1B law does not require employers to give hiring priority to Americans. I'm sure some of them wish they could sue this judge.


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