A lawsuit brought by a union and several IT workers concerning the legality of the student visa work program known as Optional Practical Training (OPT) was given the go-ahead by federal district court Judge Ellen Segal Huvelle, following her denial of the Department of Homeland Security’s motion to dismiss the claim for lack of standing. Plaintiffs, the Washington Alliance of Technology Workers and three IT workers, allege that OPT is a conduit for low-wage labor and unfair job competition.
Students still in school or recent graduates can use their F-1 visas to take jobs through OPT. Here, the plaintiffs’ allegations stem from the realities of employment under OPT: Employers do not have to pay those workers a prevailing wage, or Medicare and Social Security taxes. Thus, the lawsuit argues, these tax breaks make OPT workers “inherently cheaper” to employ than U.S. workers.
Until 2008, the OPT program was available for 12 months, after which the student had to get an H-1B visa. But President George W. Bush’s administration in 2008 extended the program for science, technology, engineering and math (STEM) students by 17 months, or 29 months total. This 17-month extension may have sparked heightened interest in OPT as reflected by the fact that approved number of OPT students soared from 28,500 in 2008 to 123,000 last year.
Judge Huvelle did deny those claims that challenged the initial 12-month OPT program due to the absence of plaintiffs that suffered an identifiable harm. In upholding the challenges to the legality of the 17-month extension, however, she ruled that the IT workers, who had degrees in the computer programming field, “were in direct and current competition with OPT students on STEM extension…This competition resulted in concrete and particularized injury.”
The timing of this decision is particularly noteworthy in light of the fact that President Obama just recently announced plans to expand and extend OPT as a part of his executive immigration reforms. Greenberg Traurig reported on the Executive Action at the end of November. A win in plaintiffs favor could seriously complicate the Executive’s intentions to further grow the OPT program unilaterally.