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Washington Alliance of Technology Workers v. U.S. Department of Homeland Security

United States District Court, D. Columbia.

November 21, 2014



For U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant: Geoffrey Forney, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Leon Fresco, LEAD ATTORNEY, United States Department of Justice, Civil Division - Office of Immigration Litigation, Washington, DC; Neelam Ihsanullah, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Trial Attorney, District Court Section, Washington, DC.

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ELLEN SEGAL HUVELLE, United States District Judge.

Plaintiff Washington Alliance of Technology Workers (" WashTech" ), a collective-bargaining organization that represents science, technology, engineering, and mathematics (" STEM" ) workers, has sued the U.S. Department of Homeland Security (" DHS" ). Plaintiff challenges defendant's

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approval of the Optional Practical Training (" OPT" ) program, which allows nonimmigrant foreign nationals on an F-1 student visa to engage in twelve months of employment during and following a full-time course load in a U.S. educational institution. See 8 C.F.R. § 214.2(f)(10). Plaintiff also challenges the seventeen-month extension to the OPT program instituted in April 2008 for eligible STEM students. See 8 C.F.R. § 214.2(f)(10)(ii)(C). Before the Court is defendant's motion to dismiss plaintiff's Complaint under Federal Rules of Civil Procedure 12(b)(1). (Mot. to Dismiss, Aug. 25, 2014 [ECF No. 10] (" Mot." ).) For the following reasons, the motion to dismiss is granted in part and denied in part.


F-1 visas allow foreign nationals to enter and remain in the United States temporarily to pursue a full course of study at an approved academic institution or language program. See 8 U.S.C. § 1101(a)(15)(F)(i). The F-1 visa is valid for the duration of status, defined as " the time during which an F-1 student is pursuing a full course of study at an educational institution approved by the [U.S. Citizenship and Immigration] Service for attendance by foreign students, or engaging in authorized practical training following completion of studies . . . ." 8 C.F.R. § 214.2(f)(5)(i). F-1 students have been able to engage in practical training on a temporary basis following the completion of their studies since 1947. See 12 Fed.Reg. 5355, 5357 (Aug. 7, 1947) (codified at 8 C.F.R. § 125.15(b) (1947)). The practical training component of the F-1 visa regulations has changed over time both in terms of the length of time available to nonimmigrant students to pursue temporary employment in the United States and whether this training may occur during or following their studies. Currently, F-1 students may apply for up to twelve months of OPT related to their field of study, and this time may be utilized during or following completion of degree requirements. See 8 C.F.R. § 214.2(f)(10). OPT participants are particularly attractive to U.S. companies because employers of F-1 visa holders are not required to pay Medicare and Social Security taxes for these nonresident foreign nationals. See 26 U.S.C. § 3121(b)(19).

In April 2008, DHS issued an interim final rule with request for comments that extended the period of OPT by seventeen months for F-1 students with a qualifying STEM degree. Extending Period of OPT by 17 Months for F-1 Nonimmigrant Students with STEM Degrees, 73 Fed.Reg. 18,944 (Apr. 8, 2008). The express purpose of this extension was to allow U.S. employers to recruit STEM-skilled employees who would otherwise find employment outside of the United States due to the difficulty in obtaining an H-1B visa. Id. at 18,946. H-1B visas, which may be granted annually to foreign nationals in a specialty occupation to temporarily work in the United States, are limited and are highly oversubscribed. Id.; see 8 C.F.R. § 214.2(h)(1)(ii)(B). As part of the rulemaking in 2008, DHS cited a National Science Foundation report that found foreign nationals comprised a significant number of STEM students pursuing higher education in the United States, but that other countries are providing more career opportunities for foreign nationals trained in STEM fields. 73 Fed.Reg. at 18,946 (citing National Science Foundation, Science and Engineering Indicators (2008)). This trend was creating intense international competition for highly-valued STEM employees. Id. The seventeen-month extension was designed to allow U.S. employers to more effectively compete for U.S.-educated, STEM-trained foreign nationals by allowing more time for these individuals

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to work in the country on an F-1visa while they try to obtain an H-1B visa. Id. DHS estimated that 30,205 F-1 students would complete their OPT between April 1 and July 31, 2008, and approximately one third of these students had obtained a degree in a STEM field. Id. at 18,950. Therefore, this regulation had " the potential to add tens of thousands of OPT workers to the total population of OPT workers in STEM occupations in the U.S. economy." Id. DHS noted that the OPT seventeen-month extension for STEM students was initiated without notice and public comment " [t]o avoid a loss of skilled students through the next round of H-1B filings in April 2008." Id.

In its Complaint, plaintiff alleges that the twelve-month, post-completion OPT program[1] violates U.S. laws that govern student and employment visas for foreign nationals (Claims 1 - 3) (Compl., Mar. 28, 2014 [ECF No. 1] ¶ ¶ 155 - 186), and that the seventeen-month extension to the OPT program for STEM students violates the Administrative Procedure Act, 5 U.S.C. § 500 et seq., (Claims 4 - 8). ( Id. ¶ ¶ 187 - 278.) Plaintiff argues that the unlawful F-1 post-completion OPT regulations caused injury to its members through increased competition for STEM jobs. ( Id. ¶ 55.) In particular, WashTech describes three of its members, Douglas Blatt (" Blatt" ), Rennie Sawade (" Sawade" ), and Ceasar Smith (" Smith" )--all computer programming specialists--who applied for STEM positions with many companies between 2008 and 2012 and were not hired because, allegedly, these positions were offered to F-1 students pursuing an OPT STEM extension. ( Id. ¶ ¶ 79 - 154.) For example, Blatt, a computer programmer with an information technology degree, applied for STEM positions at JP Morgan Chase, Ernst & Young, IBM, and Hewlett Packard between 2010 and 2011. ( Id. ¶ ¶ 102 - 115.) All of these companies employed F-1 visa holders who applied for OPT extensions available for STEM students. ( Id.) Sawade and Smith have similar backgrounds and were also rejected from multiple STEM positions since 2008. ( Id. ¶ ¶ 79 - 101, 124 - 154.)

Defendant has filed a motion to dismiss, arguing that (1) plaintiff lacks Article III standing to bring any of its claims because it has not sufficiently pled an injury-in-fact to any of its members, and (2) Claims 1 - 3 are barred by the six-year statute of limitations for civil actions filed against the United States. The Court agrees that plaintiff does not have standing to bring its first ...

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