Suit Filed Over Rule on Foreign Students

By Staff Report

Jun. 2, 2008

Individuals and worker advocacy organizations have joined together to sue the Department of Homeland Security over a new rule designed to ease foreign students’ transition to an H-1B guest worker visa.

The lawsuit, filed May 29 in U.S. District Court in New Jersey, asks the court to strike down regulations implemented last month surrounding “optional practical training” for foreign students.

The new regulations, which extend the on-the-job training period for foreign students with science, technology, engineering or mathematics degrees from 12 months to 29 months, amount to an end run around the limits of the H-1B program and harm American workers, says John Miano, a computer consultant and one of the plaintiffs’ attorneys.

“The DHS ruling encourages employers to discriminate against U.S. workers,” Miano said in a statement. “Employers can now use the OPT program to train foreign students for 2½ years, rather than invest in our own domestic IT labor force.”

The suit is on behalf of 10 individuals—mostly computer programmers—and three worker advocacy organizations: the Programmers Guild, the American Engineering Association and Bright Future Jobs.

A spokeswoman from the DHS said the agency does not comment on pending or current litigation.

The suit is the latest skirmish in a long-running battle regarding the H-1B guest worker program and the use of skilled foreign labor in America. H-1B visas allow skilled foreigners to work in the U.S. for up to six years. The program, which is heavily used by the technology industry, is subject to an annual cap of 65,000, with some exceptions.

Critics of the visas say they suppress wages, steal jobs from Americans and fuel the shift of work offshore.

Proponents say the visa program keeps high-skill work from going abroad and provides talent needed to keep U.S. businesses competitive in the global economy.

There has been high demand for the visas in recent years. In early April, U.S. Citizenship and Immigration Services, which administers the visa program, said the cap of 65,000 had already been reached for the fiscal year that begins in October.

The new rule, which took effect April 8, responds in part to the so-called “cap gap.” That refers to the way foreign students in the U.S. on F-1 visas who have been approved for an H-1B visa face a gap in their authorized stay and employment before the start date of H-1B employment October 1. The rule extends the authorized period of stay, as well as work authorization, of F-1 students for whom an H-1B visa has been granted or is pending.

The DHS forecasts that the new rule’s 17-month extension of optional practical training for foreign students with science, technology, engineering or mathematics degrees could add tens of thousands of workers in those fields to the U.S. economy.

In announcing the rule in April, the DHS cited concerns raised by representatives of high-tech industries that the “inability of U.S. companies to obtain H-1B visas for qualified F-1 students in a timely manner continues to result in the loss of skilled technical workers to countries with more lenient employment visa regimes, such as Canada and Australia.”

“This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” DHS Secretary Michael Chertoff said in April.

But those behind the May 29 lawsuit say the regulation is hurting Americans and breaking the law. The department “has both overstepped its authority and caused injury to American workers—just as the economy heads downward,” Mike Hethmon, one of the attorneys who prepared the complaint, said in a statement.

Hethmon is general counsel for the Immigration Reform Law Institute, a law firm that advocates for protecting the rights of U.S. citizens in immigration-related matters.

—Ed Frauenheim

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