Judge rejects student visa injunction sought by H-1B opponents

Tech workers don't have standing to fight Bush administration visa move

A U.S. district court judge in New Jersey this week rejected an attempt by H-1B visa opponents to halt the Bush administration's extension of student visas from one year to 29 months -- a move it claimed would give students a better shot at getting an H-1B visa.

The opponents argued that the extension, put in place earlier this year, is a backdoor visa increase and will hurt U.S. workers. But in a ruling on Tuesday, U.S. District Court Judge Faith Hochberg denied a preliminary injunction sought by the Programmers Guild, the Immigration Reform Law Institute and other groups.

The lawsuit was initially filed in May.

Hochberg's ruling focused less on the merits of the case and more on whether H-1B opponents had legal standing to bring it, noting that they could not show they had been directly hurt by the student visa extension. "Instead of alleging concrete injury, plaintiffs assert a generalized grievance with a particular government policy," the judge wrote.

The ruling appears to offer opponents little hope that their lawsuit against the U.S. Department of Homeland Security, which approved the visa extension, will succeed.

The judge ordered the two parties to file briefs as to "whether this case should be dismissed for lack of standing." Those briefs are due by Nov. 14.

Although the H-1B opponents can appeal the injunction, no decision on doing that has yet been made. John Miano, founder of the Summit, N.J.-based Programmers Guild, said the extension opponents are now working on a response.

But on the issue of legal standing, Miano believes tech workers do have the standing needed to challenge the Bush administration move. "Should a group of U.S. [science, technology, engineering and mathematics] workers and organizations representing STEM workers have standing to challenge a rule intended to increase the supply of STEM workers in the U.S.?

In its lawsuit, the Programmers Guild said its members "will experience further job displacement, denials of job opportunities, wage depression and increase[d] job competition by a DHS estimate of 12,000 to 30,000 foreign workers."

Hochberg said that the plaintiffs were expressing "general dissatisfaction" with the policy, which does little to separate them from "the public at large" in having grounds to claim injury. Moreover, Hochberg wrote that there are "competing interests" to the claim by the plaintiffs "that granting the preliminary injunction is consistent with the public interest in preserving jobs and wages for American workers."

The judge wrote that the preliminary injunction "would cause extreme hardship to lawfully present guest students, such as being forced out-of-status and facing deportation."

Proponents of the student visa extension argued that it was needed to allow students to seek an H-1B visa. The 85,000-visa cap, which includes 20,000 allocated to those with advanced degrees, is being reached in early April each year -- prior to the close of the academic year. That makes it difficult for new grads to get a new visa before their old visa expires.

Copyright © 2008 IDG Communications, Inc.

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