Breaking: STEM OPT Case Dismissed

Published: 04/21/2017

Source : http://bit.ly/2osVds5

Last month, the District Court where the Washington Alliance of Technology Workers had filed a new lawsuit challenging the new STEM OPT rule had issued an order granting part of DHS’ motion to dismiss, but also denying part of the motion to dismiss. At that time, we didn’t know exactly which parts of the lawsuit are allowed to continue. The court indicated that it would issue an opinion within the next 30 days explaining the decision and the reasons for their findings.

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The court has now issued that opinion and the case has been dismissed! In dismissing the new lawsuit, the court found:

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  • Washtech has failed to establish “that at least one identified member ha[s] suffered or would suffer harm” resulting from the 1992 OPT Program Rule
  • Washtech failed to show that a procedural right sufficient for standing has been violated
  • Washtech’s mere assertion that something unlawful benefited its competitors  and allegedly constitutes employment discrimination is not sufficient to demonstrate a legal cognizable injury that is particularized and concrete
  • Contrary to Washtech’s assertion, the Court does not find that the 2016 OPT Program Rule mandates disparate treatment for American workers vis-à-vis OPT [Program] guest[-]workers by requiring the latter to receive the benefit of mentoring
  • Washtech’s unadorned speculation that DHS’s 2016 OPT Program Rule creates unfair competition because of the taxation differences between foreign labor employed under the F-1 visa provision and domestic labor is too speculative to confer Washtech standing.
  • Throughout the long history of the F-1 visa program, including amendments and revisions, Congress has repeatedly declined to include any provision that requires analogous domestic labor protections. Simply, Washtech cannot compel the Court to infer that Congress intended to provide domestic laborers, such as Washtech’s members, labor protections under the F-1 visa program, when Congress itself had multiple opportunities to do so, but chose not to. Thus, the Court finds that the actual complaint of Washtech’s alleged deprivation of statutory protections injury is not against DHS, but rather against Congress, who is not a party in this case.
  • Despite the extensive arguments the Government advanced in its motion to dismiss, Washtech failed to substantively address any of these arguments in its opposition and its responses to the Government’s arguments are woefully inadequate to avoid dismissal pursuant to Rule 12(b)(6).
  • Washtech failed to address the Government’s challenges to the alleged APA procedural violations asserted in Count III of its Complaint, and because Washtech’s allegations do not allow the Court to draw a reasonable inference that DHS is liable for the alleged misconduct, the Court must dismiss Count III of Washtech’s Complaint.
  • Washtech failed to address the Government’s arguments regarding Count II in its opposition. Therefore, as previously indicated, the Court may treat the Government’s position regarding Count II as conceded, which it deems appropriate to do.
  • Despite the extensive explanations provided in the 2016 OPT Program Rule, including the explanations provided in the notice of proposed rulemaking on which Washtech publicly commented, Washtech has not alleged any facts from which the Court can plausibly conclude that the 2016 OPT Program Rule is arbitrary and capricious.
“[T]he Court concludes that it must grant in part and deny in part the Government’s motion to dismiss Washtech’s claims. Specifically, the Court must grant the Government’s motion to dismiss pursuant to Rule 12(b)(1) with respect to Count I of Washtech’s Complaint for lack of standing to challenge the 1992 OPT Program Rule, but it must deny the Government’s motion to dismiss pursuant to Rule 12(b)(1) in all other respects because Washtech has demonstrated that it has standing to challenge the 2016 OPT Program Rule, because the Court has concluded that Washtech’s challenge is ripe for judicial review. However, because Washtech has not alleged facts sufficient to survive the Government’s Rule 12(b)(6) motion to dismiss, the Court must grant the Government’s motion due to Washtech’s failure to plausibly state claims that are entitled to relief.”

Background:

Back in August 2015, a D.C. federal judge said the 2008 Department of Homeland Security rule that allows STEM graduates in F-1 status to obtain an additional 17 months of OPT time in the U.S. was deficient. The decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security was based on the fact that DHS did not go through the usual notice and comment period required for new regulations. Immigrationgirl.com readers know that the judge vacated the 2008 rule allowing the 17-month extension, HOWEVER, a stay was put in place until a new regulation could be put in place. That new regulation took effect on May 10, 2016 and allows a new STEM OPT extension of 24-months. The same group of tech workers that challenged the old STEM OPT rule filed a new lawsuit in June 2016 in federal court again challenging DHS policy allowing student visa holders to work after completion of their studies.
 
The new lawsuit brought by the Washington Alliance of Technology Workers argues that the Optional Practical Training (OPT) program denies labor protections to US tech workers, allows increased competition, allows unfair competition, provides foreign students the benefit of mentoring programs (i.e. the I-983 training plan) without requiring schools to give the same benefit to US workers, and violates procedural rights of US workers by failing to include the question of whether OPT should be expanded in the first place in the regulatory process. Washtech asked the court to issue a declaratory judgement (find in their favor without going through an entire trial) that DHS exceeded its authority by allowing F-1 students the ability to work, vacate the new regulations, and award attorneys fees to Washtech.

 The Department of Homeland Security responded to the lawsuit with a Motion to Dismiss (this occurred during the Obama administration), arguing that Washtech does not have standing because they could not prove that any injury was caused by the 2016 Rule or the old 1992 Rule. DHS argued that Washtech’s case relies entirely on cookie-cutter allegations they previously raised when they challenge the 2008 Rule and Washtech’s challenge to the 1992 Rule should be time-barred.

Source : http://bit.ly/2osVds5

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