This Issue: Group of lawmakers urge Supreme Court to consider legality of guest worker program

Reps. Brian Babin (R-Texas) and Tom McClintock (R-Calif.), joined by 29 other House Members, are urging the Supreme Court to consider reversing a lower court decision that upheld the Optional Practical Training (OPT) program. Sen. Ted Cruz (R-Texas) is leading a similar effort in the Senate.

The lawmakers have filed an Amicus Brief with the Supreme Court asking the high court to take up Washtech v. DHS during its next session.

Created by the first Bush Administration, the OPT program allows foreign students who graduate from a U.S. college or university to temporarily stay and work in the country after graduation. Over the years, it has become the largest guest worker program in the United States.

Both the second Bush Administration and the Obama Administration have extended the period of time OPT workers can stay and work in the U.S.

An alliance of tech workers is challenging the existence of the program in Washtech v. DHS, arguing that OPT is illegal since federal law makes no reference to post-graduate work for foreign student visa holders.

While defenders of the program claim that it allows foreign student graduates to gain hands-on experience before returning to their home countries, in practice, the program is used by employers to bypass hiring U.S.-born college graduates and instead hire cheaper foreign workers. Unlike the H-1B high-skilled guest worker program, the OPT program does not contain any wage requirements, and the workers are exempt from payroll taxes, effectively giving employers a financial advantage to hire OPT workers over American workers.

In addition, employers often use the program as a bridge to the H-1B visa or an employment-based green card.

Last year, the D.C. circuit court upheld the OPT program, ruling that federal law only addresses the admission of F-1 student visa holders and does not address conditions for their stay. Therefore, as long as the executive branch follows the law when admitting the students, it can define the rules while they're here.

The House Members argue in their Amicus Brief that the lower court's ruling not only threatens the separation of powers, but also ignores that the Immigration and Nationality Act states that foreign student visas are awarded to aliens "who seek to enter the United States temporarily and solely for the purpose of pursuing such a course of study."

The Supreme Court's next session begins in October.

You can read the full Amicus Brief here.

CHRIS Chmielenski NumbersUSA Deputy Director