D.C. Circ. panel mulls tech group's standing in student visa lawsuit

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  • U.S. tech worker group appealing dismissal of challenge to 2016 rule
  • D.C. Circuit judges questioned whether foreign workers displaced group's members

(Reuters) - Judges on a U.S. appeals court appeared torn on Wednesday over whether a group representing American tech workers had standing to challenge an Obama-era policy allowing international students with science and technology degrees to work in the U.S. after graduating.

John Miano of the Immigration Reform Law Institute, who represents the Washington Alliance of Technology Workers (WashTech), spent most of his oral argument before the U.S. Court of Appeals for the D.C. Circuit addressing the three judges' questions about whether the group's members were competing directly for jobs with foreign workers.

Circuit Judge David Tatel said WashTech had not shown how its members were "direct and current competitors" of F-1 student visa recipients who received extensions under the up-to-two-year Post-Completion Optional Practical Training (OPT) program, as required by D.C. Circuit precedent to establish standing.

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And Circuit Judge Cornelia Pillard told Miano that allegations of generalized harm to U.S. workers were insufficient because those who receive F-1 extensions are not necessarily replacing American workers.

“It isn’t always clear that adding worker A to the economy depresses opportunity for worker B,” Pillard said.

WashTech is appealing a judge's ruling tossing out its 2016 lawsuit that claims the U.S. Department of Homeland Security exceeded its authority by adopting the rule.

U.S. District Judge Reggie Walton found that WashTech had standing to sue, but ruled against the group on the merits. He said it was reasonable for DHS to conclude that F-1 recipients only needed to be enrolled in studies upon receiving a visa and entering the U.S., and not for the entirety of their time in the country.

The U.S. Chamber of Commerce and National Association of Manufacturers, represented by McDermott Will & Emery, intervened in the case in 2019 to defend the rule, which they said kept science and tech jobs from moving overseas.

On Wednesday, Joshua Press of the U.S. Department of Justice told the D.C. Circuit panel that Walton correctly sided with DHS, but was wrong to rule that WashTech could pursue the lawsuit in the first place.

Press said WashTech could not show that members were turned away for jobs specifically because they had been displaced by F-1 visa holders.

“We’re talking about the actions of third parties and their decision-making process to hire someone or not,” Press said. “Much more is needed to bridge that gap.”

Miano maintained that the sheer size of the OPT program and the fact that more than 200,000 graduates have been granted visa extensions created a presumption that some WashTech members had been displaced.

“A party suffers an injury if competition is allowed against them, and in this case it is not only allowed, it’s targeted at them,” Miano said.

The panel included Circuit Judge Karen Henderson.

The case is Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, U.S. Court of Appeals for the D.C. Circuit, No. 21-5028.

For Wash Tech: John Miano of the Immigration Reform Law Institute

For DHS: Joshua Press of the U.S. Department of Justice

For the business groups: Paul Hughes of McDermott Will & Emery

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.