Tech workers dealt setback in H-1B case

Appeals court affirms lower court decision, cites lack of 'standing'

The U.S. Court of Appeals in Philadelphia has ruled against the tech workers that have been fighting a federal decision to allow foreign students to work on a student visa from one year to 29 months.

The Programmers Guild and others fighting the student visa extension, approved during President Bush's administration and subsequently backed by President Obama, argued that the extension was a backdoor H-1B increase that has brought more competition to the labor market, hurting wages and job prospects of U.S. workers.

The Bush administration extended the visa in 2008 because of the high demand for H-1B visas at the time, and concern that students, unable to get a visa, would return.

The recession has changed that. Of the 85,000 visas available under the cap, about 20,000 remain. Last year, the entire cap was exhausted in just a few days.

However, this case is not being decided on its merits, but instead on technical issues. The U.S. District Court was asked last year in the lawsuit to issue a preliminary injunction to block the extension. But Judge Faith Hochberg ruled that the opponents did not have legal standing to bring the case because they weren't directly affected by the student visa extension. The appellate court, in its decision dated July 17, affirmed the lower court's decision.

John Miano, a Programmers Guild founder and attorney who argued the case in court, said he will ask the court to reconsider the case, and failing that, they may take their appeal to the Supreme Court. There is also the option of filing another case on new legal grounds.

"To this point we have spent over a year litigating whether we can litigate," Miano said. "That sounds absurd to engineers and other non-lawyers, but that's the way it works."

"At the end of the day, we have computer programmers and engineers challenging a regulation to allow more foreign computer programmers and engineers to work," he said. "That's a simple case of standing, so there are only so many barriers they can put up."

In oral arguments in June, the U.S. Justice Department attorney representing the government, Samuel Go, was asked by the court "if they [the tech workers] can't challenge this [the student visa rule change,] who can?" Go had argued that the tech workers didn't have a vested interest because a job applicant can be anyone.

While the court battle continues, Congress may be on the verge of attempting, once again, to rewrite its immigration laws. U.S. Charles Schumer (D-N.Y.) has promised to introduce a new comprehensive immigration reform bill by Labor Day.

Copyright © 2009 IDG Communications, Inc.

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