Judges ask tough questions in H-1B case

Regarding student visa extension: If tech workers can't challenge rule, who can?

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One judge asked Go: "My question is, if they (the tech workers) can't challenge this (the rule change) who can?"

Go said the problem lies in the fact that the people making the challenge are job applicants. "These are people who don't have a vested interest." A job applicant can be anyone, he argued.

One judge countered Go's point by explaining that there are businesses that can gain legal standing in case "by showing increased competition from regulatory changes," he said. "Why should a worker be treated any differently than a business entity?"

Go reiterated his point that business has a vested interest and is part of the industry being regulated, unlike a job applicant.

But the court's questions suggested that the government's argument is circular. The tech worker is "not going to have any interest if he doesn't get the job," quipped one judge.

The court, in an effort to get at the size of the issue, cited foreign student enrollment numbers outlined in the arguments used by DHS: there are 642,000 students on visas every year, and 70,000 are in the OPT program. It's estimated that 12,000 of those students have so-called STEM degrees, in the science, technology, engineering and mathematics fields. There are 5.5 million STEM workers in the U.S., according to figures cited in the case.

"How [does] the presence of 12,000 people for an additional 17 months give you standing?" asked one judge of Miano. "What evidence is there that your clients have not been employed because of the presence of any STEM workers?"

Miano raised some legal issues, but also told the court that some businesses only seek students on OPT. "We've had people apply to these positions and they get rejected," said Miano. "If they didn't have access to this pool of workers, they wouldn't be able to do this," he said.

Copyright © 2009 IDG Communications, Inc.

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