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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

April 3, 2009 12:00 PM ET

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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