Founder's CornerThere’s an adage that goes like this, “sometimes you’re the windshield and sometimes you’re the bug.” Well, earlier this week those looking to protect American jobs were the bug and those looking to keep a pipeline of cheap labor streaming across our borders were the windshield. In a much anticipated decision in the case of Washington Alliance of Technology Workers (Washtech) v. United States Department of Homeland Security (DHS), et al, the Washington, D.C. Court of Appeals shot down Immigration Reform Law Institute attorney John Miano’s appeal. The court’s decision was 2:1, with the Democrats ruling against tech workers and the Republican judge dissenting. The outcome was not nearly as one-sided as some in the press have portrayed it. For those not familiar with the case,14 years ago tech workers sued to end the Optional Practical Training (OPT) program. Some background on the OPT is helpful, here. The OPT was not created by Congress, rather by executive branch fiat. Born out of shady backroom deals between big tech and federal government bureaucrats, it’s best described by this amicus brief U.S. Tech Workers filed last year: “We are filing our amicus curiae brief in support of the Washtech lawsuit challenging the Department of Homeland Security’s (DHS) optional practical training (OPT) program for F-1 international students. We believe that Congress was clear in its statutes with regard to what constitutes a bona fide student and find it to be both arbitrary and capricious on the part of DHS to grant a work permit that is in no way part of a course of study. The OPT program has derailed our statutory immigration system and replaced it with a regulatory immigration system in which the law-making authority of Congress has been usurped by a government agency. As it currently operates, OPT allows an international student to change their status from student to worker without authorization from Congress. And there are significant ramifications for U.S. workers”. For years, John Miano has been adamant in his argument that the Immigration and Naturalization Act (INA) of 1952 prohibits those who come to the U.S. on a student visa from working here. Tragically, the D.C. Circuit Court of Appeals sided with DHS’s claim that it has unlimited authority to permit alien employment. To reach this odd outcome, the court first adopted the false notion of calling Congress’s limits on student visas “entry requirements”, and those entry requirements don’t apply once a student has entered the U.S. Then furthering the conundrum, the court decided those entry requirements are not to be applied at entry, either. In short, under the guise of agency deference, the D.C. Circuit Court of Appeals has completely nullified all the restrictions Congress has placed on student visas. The term “deference” is applied when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer, or a regulation promulgated by the agency. In her well-crafted dissenting opinion, Judge Karen LeCraft Henderson characterized this miscarriage of “deference” as “the Congress would not have delegated the elephant-sized “co-equal power to authorize alien employment through a mousehole-sized definitional provision.” She further added, “DHS’s section 1324a(h)(3) interpretation, which would purportedly allow the DHS to authorize employment for any alien class, violates the nondelegation doctrine.” In the end, the D.C. Circuit Court of Appeals has made it acceptable for the rich and powerful to create new guest work programs in secret, by throwing a dinner party for the DHS secretary. So, where does that leave us? Jared Culver, Legal Analyst for NumbersUSA summed up the outcome and had this to say, “When the Executive Branch is interpreting statutes and finding massive power in silence, the degree of skepticism of Courts should be ringing alarm bells at its highest level.” The good news – and yes, there is good news, the case must now be appealed to the Supreme Court (SCOTUS) and based on recent decisions there’s reason to be optimistic about the outcome! According to Culver, “In the last term, SCOTUS struck a blow against the Environmental Protection Agency (EPA), arguing their regulations went well beyond the statutory limits. Multiple recent examples exist of the Supreme Court striking down broad expansions of executive power that mirror the claims of power within OPT.” In closing, I want to congratulate you for reading this far. Churning through legalese laden missives is anything but fun or easy. Next, if you find value in the work we do, please support us by clicking on the donate button below. And last, should you be so inclined, please don’t stop there. The Immigration Reform Law Institute (IRLI) that employs John Miano could use a little love, too. You can find them at www.irli.org. In Solidarity. |
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