CIS Fellow John Miano Gets Interim Court Victory in Foreign Student Case

By David North on November 24, 2014

John Miano, the New Jersey attorney and CIS Fellow, has just won a round in a federal court battle to prevent foreign college grads from taking jobs from qualified Americans.

The specific issue is the continuing Optional Training Program for recent alien college grads; it is run by the Department of Homeland Security, the defendant in the case.

OPT allows former F-1 students to continue to work in the U.S. after graduation and gives U.S. employers a bonus of up to $10,000 for hiring the OPT visa holder rather than a citizen or green-card worker. The bonus comes through a little-known policy that OPT employers do not have to pay payroll taxes, as we described in an earlier report.

Miano, arguing for the Washington Alliance of Technology Workers (and U.S. workers generally), is trying to persuade a federal district court in the District of Columbia that the entire OPT program:

violates U.S. laws that govern student and employment visas...and the Administrative Procedure Act...[and has]...caused injury to its members through increased competition for STEM jobs...

Miano also argued that there is no statutory authority for the OPT program (which treats former students as if they were current students), that the whole operation is based solely on regulations, and that many of them were created without the required notice-and-comment procedures.

Further, he said, that DHS had, in its 2008 ruling "establish[ed] a STEM worker shortage solely by misrepresenting a National Science Foundation study..." which dealt with another subject. This is a reference to the NSF study "Rising Above the Gathering Storm".

STEM stands for Science, Technology, Engineering and Math. Many alien workers on their way to H-1B jobs are hired through the OPT program while the H-1B job orders are being processed.

President Obama's proposed immigration package includes an even longer version of STEM status. Miano's brief is that the program should not exist at all.

Most civil suits are complex and this one is no exception. The initial reaction of DHS was that the Alliance had no standing to sue; i.e., it and the three named workers do not have identifiable injuries. The decision, handed down on Friday, November 21, rejected the DHS position and, in effect, ordered that the trial should continue.

Meanwhile, the court made a distinction between the two periods of OPT eligibility. All alien college grads get 12 months of work permission under OPT, and the numerous STEM grads get an extra 17 months. Senior U.S. District Court Judge Ellen Segal Huvelle ruled that WATW had convinced her that during the 17-month period that there was real injury to the three U.S. workers named, but that this was not evident during the 12-month period.

Her ruling, however, that the workers had standing to sue over the 17-month period is highly significant, because it means that the instant case can go forward, and because it presents a precedent for somewhat similar cases in the future – or, putting it another way, our workers now have a right to be heard in court on foreign worker issues!

Miano told me over the weekend that while the argument over the first 12 months of the OPT program has been side-tracked for the moment, it will be raised again later. The implication of the judge's ruling, he said, was that now other lawsuits on related subjects can follow, such as on the administration's proposal to allow H-1B dependents (H-4s) to work; that proposal has not yet been finalized.

The OPT period had been one year for decades, but the Bush administration extended the period in 2008 to a total of 29 months for STEM graduates. The Obama Administration has defined STEM in an expanded way as it continues to operate and promote the program.

Many other lawsuits against job-destroying immigration policies in the past have been lost on the issue of standing, but that is not a problem now in this case.

The plaintiff, WATW, is identified on its website as an affiliate of the Communication Workers of America (AFL-CIO), Local 37083; it is based in Washington State and its members include many Microsoft employees. The AFL-CIO itself, the umbrella organization, is not mentioned as a party (nor is CIS). Miano is associated in this matter with the Immigration Reform Law Institute, the DC-based advocacy organization.

The case was filed in March of this year. Though the plaintiff is a Washington State organization, the suit was filed in the Washington, D.C. courts. Users of PACER, the federal courts' electronic filing system, can find it at 1:2014-cv-00529.

The judge in the case has an interesting background. She was appointed to the District of Columbia's Superior Court by President George H. W. Bush, and then, years later, was promoted to the U.S. District Court by President Clinton.