As my colleague John Miano has reported, the District of Columbia Circuit Court of Appeals has reinstated a lawsuit filed by the Washington Alliance of Technology Workers, representing U.S. citizen and resident alien workers, to enjoin regulations instituted under the Obama administration.
The regulations permit foreign students to extend their stay in the United States post-graduation for up to three years while pursuing Optional Practical Training (OPT), and an additional six months on top of that if an H-1B application has been filed for them and they are awaiting a decision. The Alliance, rightly in my opinion, alleges that the regulations are an abuse of OPT and a sham simply designed to marry cheap foreign workers with willing employers at the expense of Americans and resident alien technology workers who cannot compete for the wages offered.
The lawsuit had been tossed by a federal district court judge previously on the basis that the four counts filed in the complaint failed to establish any concrete harm to the Alliance's clientele, and thus lacked standing. This is a classic example of something I and others here at the Center have often commented upon: The federal judiciary's lopsided interpretation of "standing" routinely excludes citizens alleging harm from one or another aspect of illegal, or unconstrained, immigration — while rarely if ever dismissing lawsuits filed by aliens or their supporters.
Happily, the D.C. Circuit saw things differently than the district court judge, although it has to be said that only one of the four bases of the complaint survived. Law360 reports that the Department of Justice (DOJ) lawyers representing the government in the lawsuit received sharply critical questioning from at least one circuit judge during oral arguments.
This brings up another aspect of the case that's truly puzzling: Why is the Trump Justice Department still defending the rule? This is inexplicable and inexcusable.
It would be simple enough for DOJ under Attorney General Jeff Sessions to notify the court of its intention to abandon defense of the regulation and then rescind it via the regulatory process.
It would also be the right thing to do.