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Bloggings on Dysfunctional Government

by Angelo Paparelli

Editor's note: Here are the latest entries from Angelo Paparelli's blog.

August 15, 2008

A USCIS Epiphany - Musings on F-1 STEM Workers and the Out-Of-Luck Programmers Guild

Chalk up one for USCIS and a Federal Judge.  The agency's 17-month extension of F-1 optional practical training has survived a motion for preliminary injunction sought by the Programmers Guild.  U.S. District Judge Faith S. Hochberg issued an August 5 order finding a lack of causal connection and insufficient harm to sustain the claim of Guild's members (out-of-work or underemployed engineers and programmers) that failure to grant a preliminary injuction would irreparably injure them.

USCIS's lawyers filed a nifty memorandum of law with apparently persuasive arguments, including a history of the agency's pre-INA (Immigration and Nationality Act) authority to grant employment authorization to F-1 students.  The government's memorandum contains language (italicized below) that may be useful for citation by the employer community, nonimmigrant applicants for benefits and the immigration bar in a request for compassion or expedited adjudication, agency recognition of extraordinary circumstances, comments to a proposed rule or arguments in support of legislation authorizing more H-1B visa numbers or recapture of unused employment-based immigrant visas:

Even were this Court to find Plaintiffs’ injuries “concrete and particular,” and even were the Court to find a viable causal nexus between Interim Final Rule [IFR] and Plaintiffs’ alleged injuries, Plaintiffs’ case for standing still fails because this Court cannot redress their injuries. Foreign students might still petition for H-1B visas; employers might still hire them. Jobs might be exported overseas as U.S. employers try to remain competitive in a global market. Practical training has existed for over sixty years, yet Plaintiffs, by their own admission, were “unemployed” or “underemployed” before promulgation of the IFR. Plaintiffs misdirect their attack on the extension of OPT within the Interim Final Rule.

Were the Court to issue a preliminary injunction, thousands of otherwise lawfully present students could be forced out of status. Notwithstanding the hardship this would work upon these students in forcing them to leave the country to apply for an H-1B visa, an injunction would have more serious consequences still. A student’s eligibility for OPT (and by extension, a change of status to an H-1B visa) depends upon maintaining lawful status. See 8 U.S.C. § 1258(a) (limiting changes of nonimmigrant status to aliens who have maintained lawful status). A preliminary injunction would force thousands of students out-of-status.

Were the Court to enjoin this IFR, and thrust thousands of students out-of -status, the enormous disruption would affect not only students and prospective employers, but other more collateral interests. Stripping lawful status away from these students would result in untold confusion [for] third parties and the public. The preliminary injunction Plaintiffs seek would not preserve the status quo, it would throw an orderly and predictable system into a chaotic mess, as neither students nor employers could be sure of who could work or when [italics supplied].

Turnabout is fair play.  Hoist the government on its own petard. (I'll stop gilding the lily for now with trite chestnuts.) 

Remind them with their own words that insensitive rules and rulings result in extraordinarily harsh and irreparable consequences to human beings and American businesses.  If USCIS won't listen to employers, foreign citizens and immigration lawyers, maybe they'll listen to themselves.