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Judge Green Lights Lawsuit Challenging the Tech Worker Visas Obama Wants to Expand

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Just one day after President Obama announced a series of immigration reforms via executive action, a federal judge greenlit a lawsuit that challenges a student visa program which the reforms would expand.  The program, known as Optional Practical Training (OPT), allows foreign born students who graduate from U.S. schools to be eligible to work in the U.S. for up to 29 months depending on their field of study. 

The lawsuit was brought forward by the Washington Alliance of Technology Workers (WashTech) and three information technology workers.  It alleges that, “the OPT program is a conduit for low-wage labor and unfair job competition.”

In her ruling, U.S. District Judge Ellen Segal Huvelle sided with workers, and against the Department of Homeland Security (DHS), on many of their claims. DHS had motioned for the case to be dismissed. 

Though the OPT program has been in existence since 1947, changes made by the Bush Administration in April of 2008 made the program more popular among employers looking for cheap labor.  Workers hired through the OPT program are not guaranteed a prevailing wage and their employers do not have to pay Medicare or Social Security taxes.  According to the lawsuit, this makes OPT workers “inherently cheaper” than U.S. workers.

The changes made by the Bush Administration included a 17-month extension for OPT workers with STEM degrees, who had originally been limited to 12 months. These workers can now work for up to 29 months at a rate far below their American counterparts.  Before the changes were made in 2008 there were 28,500 approved OPT visas in the United States.  123,000 were approved last year.  

Huvelle ruled that workers were being harmed by the extension of the OPT program and therefore a challenge to the visa extension can proceed.  From her ruling:

“The three named WashTech members that plaintiff describes in its complaint are part of the computer programming labor market, a subset of the STEM market,” Huvelle wrote. “The complaint sufficiently establishes that these three members are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.”

As lawyer John Miano explained to Computer World, DHS’ justification for the expansion of the program was that there was a “worker shortage” in tech fields.  Miano says the worker shortage is a myth and studies used to justify DHS’ claims are false:

The Communications Workers of America (CWA) are affiliated with WashTech. They issued a statement objecting to the president’s expansion of the OPT program:

CWA is concerned by the President’s concession to corporate demands for even greater access to temporary visas that will allow the continued suppression of wages in the tech sector. Through the new rulemaking process that was added as a part of this executive action, CWA will press for fair treatment and protections for both U.S. and foreign-born tech workers.

Both sides must respond by December 10th with a schedule for further proceedings.

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