A US 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 US 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 US 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 US 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 US 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 US 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 US 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 US citizens and permanent residents are.