WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a petition in the Supreme Court for a writ of certiorari in the case of Washington Alliance of Technology Workers v. Department of Homeland Security (DHS).
The suit challenges a DHS program called Optional Practical Training (OPT), which unlawfully permits non-student aliens to remain and work in the United States on student visas for three and a half years after graduation. IRLI represents the Washington Alliance of Technology Workers, Local 37083 of the Communications Workers of America, AFL-CIO (Washtech), a labor union that represents American technology workers located throughout the U.S. and whose members are forced to compete for jobs with foreign labor.
Before the DC Circuit Court of Appeals, IRLI attorneys had shown that permitting aliens to work on student visas long after they were no longer students violated the terms Congress has set forth reserving student visas “solely” to students. To get around IRLI’s argument, the court, in a 2-1 decision, held that the terms of all temporary visas defined in the law are only entry requirements that DHS is free to ignore once aliens are here.
In so holding, the appellate court violated precedent from every other circuit and from the Supreme Court. IRLI also asks the Supreme Court to resolve a vital matter of principle: whether an executive agency may ever add to a statute purely according to its own—or big business’s—ideas about what is best, or whether agencies must always execute or implement principles laid down by Congress. They must always implement congressional principles because only then are they exercising executive power (reserved to the executive branch) rather than legislative power (reserved to Congress).
“The D.C. Circuit decision departs from all prior precedent and must be overturned,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The panel gave sweeping power to Biden to rewrite or supplement nonimmigrant visa statutes to provide as much foreign labor as industry may demand, whatever Congress has said in the law—all to the detriment of American workers. We hope the Court takes this case to reverse this starkly anomalous, unconstitutional decision.”
