For 14 years lawyer John Miano, who sometimes writes for the Center, has been trying to get the courts to rule that the Executive Branch cannot – without congressional approval – simply wave a wand and convert an alien student into an alien worker, as it has done in the Optional Practical Training program.
This is the program that, without ever mentioning it, takes money from the Social Security, Medicare, and Federal Unemployment Insurance Trust Funds to give employers an eight percent tax break because they hire the alien alumnus rather than a citizen alumnus. The government, since the days of the Bush II Administration has, artificially I believe, defined these alumni as “students” thus giving their employers the tax break.
Miano regards OPT as the largest of the foreign worker programs; he may be right, though I think it is a tad smaller than the H-1B program.
There are, to this layman, five steps in this kind of court process:
- The litigant, in this case the Washington Alliance of Technology Workers, loses at the federal district court level;
- The litigant appeals to a panel of the federal circuit court, and loses again;
- The litigant asks the circuit court en banc to review the panel’s decision and it refuses to do so;
- The litigant asks the Supreme Court, as Miano has just done, to issue a writ of certiorari, seeking a hearing from that court, which the court either denies or grants.
- If it grants cert, then the Supreme Court – later – hears the case. At least four justices have to agree to grant cert.
Since the Supreme Court has both a limited amount of time, and limited areas of interest, granting cert is exception not the rule, so the odds are against Miano and the citizen tech workers at this point.
For one of our earlier reports on this saga see this one from 2014.