Founder’s Corner

Dear All:

Edmund Burke, the 18th century Irish statesman, economist, and philosopher said “laws, like houses, lean on one another.” It’s a particularly apt description of the multiple laws that govern our immigration system and which were passed to ensure the health, safety, and prosperity of every American. Sadly, events over the past two weeks have made it abundantly clear that these laws are being undermined, and in some cases, simply ignored by the Biden administration.

Under this administration, sue and settle are the new modus operandi. Case in point is a group of foreign students mostly from India who knowingly broke immigration laws to procure work permits through the curriculum practical training (CPT) program.

The CPT program temporarily allows international students with an F-1 visa to gain practical experience directly related to their major through employment, paid or unpaid internships, or cooperative (co-op) education. CPT must be offered by an accredited educational institution, part of an established curriculum and completed prior to graduation.

In 2016, as part of “Operation Triple Lindy”, U.S. Immigration and Customs Enforcement (ICE) set up the fictitious University of Northern New Jersey to target those who fraudulently facilitate student visas. They arrested 21 brokers, recruiters, and employers from across the U.S. who allegedly conspired with the “students” in a “pay-to-stay” scheme, and the students’ visas were cancelled.

But as you might guess it didn’t end there. The students sued claiming they were unwitting victims in the sting operation and their claim was rejected by the district court. Then they appealed to the Third Circuit Court of Appeals, which rebuffed the government’s argument and declared that “termination of the students’ visa status was not a final agency action subject to judicial review under the Administrative Procedure Act.”

Last January, a final settlement was reached that not only allowed the students to remain in the U.S., but mandated that the Department of Homeland Security (DHS) remove references to fraud from their records.

“The settlement imposed obligations on class members, requiring them to identify themselves as members of the class that brought the suit when they seek certain immigration benefits. It additionally requires class members who think the government isn’t complying with the settlement to go through mediation before asking the court to step in. The government also agreed to pay $450,000 to the students’ legal team in exchange for a waiver of claims for attorney fees and costs.”

This generous settlement follows last November’s settlement between the DHS and the plaintiffs regarding H4 and L2 Employment Authorization Document status. In the case of Shergill, et al. v. Mayorkas, the spouses of foreign workers will now automatically receive work permits, or 180-day extensions on existing permits.

Just yesterday DHS announced it is expanding the Science, Technology, Engineering and Math (STEM) Optional Practical Training (OPT) to include 22 new fields of study, including environmental studies, general forestry, data visualization, organizational psychology. STEM OPT is a training that directly relates to an F-1 student’s program of study in an approved STEM field. The program as it works today was created by then DHS secretary Michael Chertoff (2005 – 2009) in response to industry’s demand for more cheap workers in the STEM fields.

This expansion of STEM fields should be thrown out by the courts because it allows agencies like DHS far too much deference in applying the law and creating regulations. The OPT STEM program should not exist on grounds of deference. The OPT regulations incorporate by reference an external document that defines STEM for OPT.

John Miano, an attorney with the Immigration Reform Law Institute stated, “this allows DHS to redefine STEM while bypassing the public notice and comment requirement for regulations. Such incorporation by reference to an agency’s own document is unlawful but the courts have so far not held DHS accountable with its unlawful OPT STEM regulations.

And if this was not all bad enough, the J-1 visa, ostensibly a cultural exchange visa was extended from 18 months to three years. I say ostensibly because the program is used not for cultural exchanges but to attract foreign workers from au pairs to medical doctors.

As mentioned, immigration laws exist to protect the safety of American citizens. Last weekend, Malik Faisal Akram, a British jihadist burst into a Texas synagogue, held the congregation captive, and demanded the release of convicted terrorist Aafia Siddiqui from U.S. prison.

Akram was killed by the FBI’s Hostage Rescue Team and no hostages were harmed but the question arises, how did a person who according to the National Review had a criminal record, a history of mental illness, and terrorist group sympathies, legally enter the U.S.?

Although initial reports stated Akram arrived on a U.S. tourist visa, subsequent ones say it was a Visa Waiver Program (VWP) which enables most citizens or nationals of participating countries (Britain is one) to travel to the U.S. for tourism or business for stays of 90 days or less without obtaining a visa. Travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel.

What needs to be answered here is, was this the failure of an individual(s) or a systemic failure? Either is probable given the Biden administration’s lax approach to border security and enforcement of our immigration laws.

If Burke’s words are true, that “laws, like houses, lean on one another,” then our neighborhood is starting to resemble a row of dominoes. At every level, and at every turn, the Biden administration has shown callous if not outright malicious disregard for the immigration laws designed to protect us.

Based on POTUS’ Wednesday’s press conference, there’s little indication of any intention to course correct despite the 69% of Americans who disapprove of his handling of immigration. So, the avenues left open at least until 2025 rolls around, are to bring suit where appropriate, encourage America First candidates to run for office, and to expose how this bureaucracy is working to undermine us.

In closing, Burke greatly sympathized with American colonists under a British rule that was deaf to the harm it was doing to their prospects. He warned that if things didn’t change there would be repercussions, and there were. Americans rose up and deposed the tyrant. I submit this as a cautionary tale.

In solidarity,

Kevin Lynn
Founder
U.S. Tech Workers