OPT lawsuit lives on

Date: Tuesday, April 21, 2009 3:05 AM

<<<<< JOB DESTRUCTION NEWSLETTER No. 208 -- 4/21/2009 >>>>>

The lawsuit to reverse the Optional Practical Training (OPT) extension signed
by Michael Chertoff hasn't received recent media coverage, but it does live
on.

The OPT allows foreign students to work in the U.S. on internships for a set
amount of time. They can use this time both before and after graduation. OPT
numbers are unlimited and there are no protections for American students and
no requirements to pay a fair salary.

Last year the Department of Homeland Security changed a regulation that
extends the Optional Practical Training program for foreign students from
12 months to 29 months. Chertoff changed this immigration regulation with a
bureaucratic decree without a vote of Congress.

The new OPT rule is a de-facto expansion of the H-1B visa program because it
allows students to work in the U.S. for more than twice as many months as
before, and during that time period they can work and apply for an H-1B visa.
It creates a huge new pool of cheap foreign interns that get on the waiting
list for an H-1B visa or a green card.

The time delay between working on OPT and getting an H-1B is called the "cap
gap" by the USCIS. Check out this document to find out more:

http://www.ilw.com/immigdaily/news/2009,0402-capgap.pdf

In the past, F-1 students who were the beneficiaries of an H-1B
petition often had their F-1 status expire before their H-1B
status began on October 1 -- a period known as the cap gap.

One premise of the lawsuit is that the OPT extension is a de-facto H-1B
increase. The USCIS even admits the connection, but denies that H-1B affects
American workers. In the first lawsuit attempt the judge didn't argue the fact
that OPT is a backdoor H-1B increase but instead argued that there is no
evidence that H-1B affects American workers.

One provision of the rule applies to F-1 students who are the
beneficiaries of a pending or approved H-1B petition that is
subject to the annual cap. The IFR automatically extends the
F-1 status and, for students in a period of approved
post-completion OPT when the H-1B petition is filed, the OPT
employment authorization.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9131045

White House says U.S. needs H-1B visas to avoid 'competitive disadvantage'
Obama administration defends H-1B rule in lawsuit challenging 2008 Bush ruling
on visas Patrick Thibodeau

April 3, 2009 (Computerworld) President Barack Obama has so far reversed a

number of actions taken by President George W. Bush -- on embryonic stem cell
research, species protection and medical research -- but his administration
has so far shown no interest in reversing a Bush-approved rule that has drawn
the ire of H-1B opponents.

The Bush administration's move to increase the amount of time foreign
nationals with engineering, science and other technical degrees can work in
the U.S. on student visas from one year to 29 months prompted a lawsuit that
was filed last May by the Programmers Guild, the American Engineering
Association Inc., Bright Future Jobs, and a number of technology workers.

The lawsuit, filed in U.S. District Court in Newark, N.J., argued that the
ruling was in fact a backdoor increase in the cap on H-1B visas. The lower
court rejected the case, which the group is now appealing before the Third
Circuit Court of Appeals in Philadelphia.

In a filing with the appeals court late last month, the Obama administration
offered a defense of the H-1B visa program while repeating many of the same
arguments used by the Bush administration in defending the ruling in the
initial case. "The inability of U.S. employers, particularly in the fields of
science, technology, engineering and mathematics, to obtain H-1B status for
highly skilled foreign students and foreign nonimmigrant workers has adversely
affected the ability of U.S employers to recruit and retain skilled worker and
creates a competitive disadvantage for U.S. companies," the government argued.

The filing is the first public statement by the Obama administration about the
controversial H-1B visa program. "All we have seen from Obama about looking
out for the interest of U.S. workers is talk -- [we're] still waiting for the
change," said John Miano, founder of the Summit, N.J.-based Programmers Guild.

The Programmers Guild lawsuit contends that the student visa extension would
exacerbate problems already created by the H-1B visa for U.S. workers in the
science, technical and engineering fields -- including job losses and wage
pressures through "a rule that creates more direct competitors for them by
increasing the number of foreign workers" competing for jobs.

New Jersey U.S. District Court Judge Faith Hochberg, who heard the initial
case, did not rule on the merits of the H-1B program, but instead argued that
the opponents of the Bush action couldn't legally challenge the case because
they weren't directly affected by the rule change. Oral arguments on the
appeal may be heard as early as May.

The Department of Homeland Security, which oversees the U.S. Citizenship and
Immigration Services, is arguing the case for the U.S. The new secretary of
the DHS, former Arizona Gov. Janet Napolitano, has been a supporter of the H-
1B visa.

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