A federal court gave a green light last week to a lawsuit by a union and IT workers challenging a student visa work program, known as Optional Practical Training (OPT).
The court denied a U.S. government motion to dismiss the case brought by the Washington Alliance of Technology Workers, or WashTech, and three IT workers. The lawsuit alleges that the OPT program is a conduit for low-wage labor and unfair job competition.
The timing of this decision could not be more interesting.
U.S. District Judge Ellen Segal Huvelle' s ruling came Friday, one day after President Barack Obama announced plans to expand and extend the OPT program as part of his immigration reforms.
The WashTech lawsuit, which is being heard in federal court in the District of Columbia, challenges the OPT program. If the judge ultimately sides with the plaintiffs, the case could be bad news for the OPT program generally, as well as Obama's plans to further expand it.
Students still in school or recent graduates can use their student F-1 visas to take jobs through the OPT program. Employers don't have to pay them a prevailing wage, or Medicare and Social Security taxes. These tax breaks make OPT workers "inherently cheaper" to employ than U.S. workers, the lawsuit argues.
Until 2008, the OPT program was available for 12 months, after which the student had to get an H-1B visa. But President George W. Bush's administration in 2008 extended the program for science, technology, engineering and math (STEM) students by 17 months, or 29 months total.
The U.S. Department of Homeland Security (DHS), which is defending OPT, argued that the IT workers weren't injured by it and had no standing to bring the case.
But Huvelle ruled that the IT workers, who had degrees in the computer programming field, "were in direct and current competition with OPT students on a STEM extension," Huvelle wrote in her ruling. "This competition resulted in concrete and particularized injury."
The judge didn't deliver everything WashTech sought; she denied the first three claims of the lawsuit challenging the initial 12-month OPT program, writing that WashTech did not identify a member of its association "who suffered any harm from [it]."
That was not the case for the five remaining claims, which challenged the legality of the 17-month extension.
WashTech members that are part of the lawsuit are Rennie Sawade, a contract computer programmer with a degree in computer science; Douglas Blatt, a computer programmer with an IT degree; and Ceasar Smith, a computer systems and networking administrator with a degree in business administration.
The 17-month extension may have acted as a catalyst in generating interest in the OPT program. There were 123,000 approved OPT students last year, compared to 28,500 in 2008 when the added time was approved.
John Miano, an attorney involved in the case and founder of the Programmers Guild, said the DHS "knew when they promulgated the OPT expansion that it was illegal."
The justification for the 17-month expansion of OPT for STEM workers "was a 'critical shortage' of STEM workers," said Miano, adding that the DHS had "no objective evidence to support the claim of a worker shortage."
Miano said the only justification of a worker shortage is from one government study that made no such conclusion, the Rising Above the Gathering Storm report from 2007.
Now, the government will have to explain "where in the cited reported does it say there is a critical shortage of STEM regulations?" said Miano. And with that, "the regulations fall apart."