When we last left the litigation challenging whether DHS had the authority to create a guestworker program through regulation by allowing non-students to work on student visas, the case had been dismissed by the D.C. District Court. On Friday, the D.C. Circuit reversed the dismissal and remanded the case back to the D.C. District Court.
Under the Optional Practical Training program (OPT), DHS has been allowing certain aliens on student visas to remain in the United States for up to 42 months after graduation to work or be unemployed and looking for work. The OPT program was originally only 12 months. In 2008, DHS extended it to up to 35 months for people in STEM fields (science, technology, engineering, and mathematics) as a means to circumvent the H-1B quotas. In 2016, DHS extended it again.
One of the major victories was that the D.C. Circuit affirmed that U.S. workers have standing to challenge agency actions that allow more competitors into their market. The court rejected DHS's argument that, to have standing, workers must show they applied for a specific job, were rejected, and the job was filled by a foreign worker.
That would be an impossible standard to meet because you could never get evidence for a court that a specific job went to a foreign worker instead of an American applicant. First of all, a job applicant would be unlikely know if a foreign worker had been hired instead. Employers these days rarely send rejection letters and, if they do, such letters do not say, "we hired a foreign worker instead of you." Even if a job applicant did know that a foreign worker had been hired instead, he could never prove that in a court case like this. No such employer would agree to submit an affidavit saying it hired a foreign worker instead of an American applicant.
The statement of law here by the court has significant implications in other litigation, such as the long-delayed H-4 EAD case.
The other major victory is that the court allowed the challenge to whether OPT is within DHS authority to continue.
The court affirmed the dismissal of most of the claims in the case. However, American workers should not be concerned at all over this. Lawyers are expected to make every possible claim — even conflicting claims — when they bring a lawsuit. Only the secondary claims have been peeled away from the case.
The only disappointment in the opinion is that the D.C. Circuit did not decide the question of whether the regulations in question were within DHS authority and therefore put the litigation on a path to ending. Instead, this appeal added a 14-month delay to litigation that has now extended over a decade. Otherwise, this was a total victory for American workers.