Update on H-1B and OPT Court Cases

By John Miano, November 3, 2015

In May, DHS put in place regulations allowing certain spouses of H-1B workers to work in the United States as well. There is no authorization for the agency to allow such work, but DHS just did it anyway.

Americans who were replaced by H-1B workers at Southern California Edison filed a lawsuit to have the regulations vacated. In court, DHS made the astounding claim that it has the authority to allow any alien to work in the United States unless Congress explicitly prohibits it. Most constitutional scholars say the opposite: that an agency has only the authority that Congress gives it.

The proceedings in that case concluded last Friday; a decision usually takes a few months.

The ongoing legal battle over DHS allowing non-students to work on student visas is still ongoing. Under the "Optional Practical Training" program (OPT), aliens admitted on student visas had been allowed to work for up to 12 months after gradation. In 2007, Microsoft came up with a scam to use student visas to get around the H-1B quotas. Microsoft's plan was to increase the duration of OPT to 29 months so that OPT could serve as a substitute for H-1B visas. Microsoft presented its plan to DHS Secretary Chertoff at a dinner. From there, DHS worked in secrecy with industry lobbyists to craft regulations. The public received no notice that such regulations we being considered until DHS put them in place without notice and comment.

In August, the D.C. District Court held that the public had been unlawfully denied notice and comment and vacated the regulations effective February 12, 2016, giving DHS an opportunity to put things right before all the foreign "student" guestworkers would have to go home.

Rather than wind down the misguided OPT program, DHS responded by doubling down with new regulations expanding OPT to 36 months. If you are interested, you can read the new regulations and comment on them here. Most of the comments, and nearly all the comments supporting the regulation, come from foreign students. Some even say "Mass Mailing" in the title. If you do comment, I suggest raising specific issues with the regulations and not saying "they suck." Explain how and why. November 18 is the deadline for comments.

Notice that when American workers lose their jobs to foreign workers, the Obama administration sits on its rump and does nothing. When foreign workers are going to lose their jobs, Obama jumps into high gear to stop it. You can see where the administration's priorities lie and why so many Americans are out of work.

In any event, OPT is still in litigation. Now, the question of whether DHS has the authority to make such regulations is before the D.C. Circuit. Expect a decision in the late spring of next year. Hopefully the Court will put an end to this OPT nonsense.

Finally, Michelle Malkin and I have written a new book on how visa programs are out of control. Sold Out: How High-Tech Billionaires & Bipartisan Beltway Crapweasels Are Screwing America's Best & Brightest Workers goes on sale November 10.