Judges ask tough questions in H-1B case

President Barack Obama's administration is defending a decision made by his predecessor to extend the amount of time foreign students can work in the U.S. without getting an H-1B visa. And the arguments in the legal fight, presented last month to the U.S. Court of Appeals in Philadelphia, touch on issues that have raged for years.

Appearing before the appellate court were attorneys for the U.S. Department of Homeland Security (DHS) as well as the Programmers Guild, one of a number of groups challenging the decision to extend the time students with technical degrees can work in the U.S. on a student visa. The change would allow them to work for as long as 29 months on a student visa, more than double the earlier one-year limit.

The court has posted a recording of the oral argument. Posting such recordings online appears to be a longstanding practice by this court.

Opponents of the change are appealing a lower court decision last year by a U.S. District Court judge in New Jersey, Faith Hochberg. She rejected the lawsuit because she believed the tech workers didn't have standing to bring the case as they weren't directly injured by the White House rule change.

In court, the attorney representing the federal government, Samuel Go, said the student visa extension, called Optional Practical Training (OPT), is needed "to further [the] national interest, to improve the competitive standing of the United States in relation to other countries." The extension was also intended to make the program more attractive and to keep students from leaving the U.S. because of the H-1B cap.

Opponents argue that the visa extension has depressed wages, displaced workers and cost them job opportunities. John Miano, the founder of the Programmers Guild and an attorney and who argued the case in court, said the purpose of the rule was to "solve [an] alleged labor shortage" even though government findings "cannot establish a labor shortage." Instead, he spoke of industry demands for "cheap foreign labor," a need that "has been so great that industry has used up the quotas on H-1B visas faster and faster." Three judges heard the case -- Michael Fisher, Michael Chagares, and Paul Diamond -- and it's difficult to know from the voice recording who is asking what question. The judges pursued a number of lines of inquiry; one concerned the issue of standing.

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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