H-1B foes try to prove student-visa extension hurts U.S. tech workers

Lawsuit against DHS hinges on convincing judge that plaintiffs have legal standing in case

A federal lawsuit pitting H-1B opponents against the Bush administration is hinging on one question: Do tech workers have a right to challenge the federal government in court over its visa policies?

Critics of the H-1B program have long argued that it has created unfair competition for jobs, depressed wages, fostered discrimination and provided a lubricant for offshore outsourcing. Proving that in court is the focus of a lawsuit filed in May by the Programmers Guild, the Immigration Reform Law Institute and other groups over the Bush administration's extension of the time that foreign nationals who graduate from U.S. colleges with science or technology degrees can work on their student visas from one year to 29 months.

The lawsuit claims that the extension will exacerbate the harm caused by the H-1B program, and that the administration exceeded its legal authority by stretching the student-visa rules. But U.S. District Judge Faith Hochberg, who is hearing the case in New Jersey, is pushing back. In August, she rejected a request for a temporary injunction against the extension, citing arguments raised by the U.S. government that question whether the plaintiffs had legal standing to file the lawsuit in the first place.

Both sides recently filed court papers on that issue, in advance of an expected ruling by Hochberg later this year. The arguments over legal standing can be boiled down to the question of whether tech workers have been injured by the Bush administration's decision to extend the length of time that foreign graduates can stay in the U.S. without obtaining work visas.

The government contended in its latest filing that the injuries cited by the plaintiffs are "speculative" in nature. But in their legal brief, the plaintiffs said that prior case law is clear in showing that "economic competition is an injury-in-fact." They added that the student-visa extension "specifically targets the fields in which plaintiffs work." As a result, they claimed, "the injury is not speculative — it is intended."

The Department of Homeland Security issued the extension in April, acting on a request from H-1B supporters. And it did so under emergency provisions, warning of the possible loss to employers of students whose visas had run out. In making its case, the Bush administration used language eerily similar to the arguments it's now offering for the proposed Wall Street bailout, saying that not taking action could have caused "serious damage to important interests."

The student-visa extension is intended to take some of the pressure off of the annual H-1B cap. Demand for H-1B visas greatly exceeds the total of 85,000 visas that are available each year, including 20,000 set aside for workers with advanced degrees from U.S. colleges. As a result, employers have been unable to apply for H-1B visas for foreign students in the year that they graduate — potentially leaving them unable to obtain H-1B visas before their student visas expire.

One of the arguments raised by the tech workers and other plaintiffs in their lawsuit against the DHS is that the government's visa policies are making foreign workers more financially attractive to employers than U.S. citizens and permanent residents are.

Workers with student visas are exempt from Social Security and Medicare payments, as are their employers, the plaintiffs pointed out in their latest court filing. Currently, the Social Security and Medicare tax rates are 6.3% and 1.45%, respectively, which delivers "a 7.65% cost savings alone for employers to hire aliens under this rule," the plaintiffs claimed. And, they said, since the employer and employee each pay those taxes, the total savings amounts to more than 15%.

It is "self-evident that increasing the number of job seekers in the same fields as plaintiffs will limit the opportunities open" to U.S. tech workers, the plaintiffs argued.

In its brief, the DHS estimated that about 12,000 foreign students will apply for a visa extension this year. It labeled as "amorphous" the arguments that an employer might choose to hire someone on a student visa over a worker who doesn't have one and that U.S. tech workers may face increased job competition as a result of the extension.

"Plaintiffs allege no clearly identifiable injury; rather, plaintiffs' alleged harms consist of generalized grievances about the economic realities of plaintiffs' current occupation and fears over future prospects for employment in the U.S," the DHS contended.

Copyright © 2008 IDG Communications, Inc.

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