Tech workers take H-1B case to Supreme Court

Programmers Guild and others seek to challenge Bush-era foreign student visa extensions that they say are a backdoor increase in H-1B limits

After losing two lower court decisions, a group of tech workers are turning to the U.S. Supreme Court in their fight against a federal decision that extended foreign student visas from one year to 29 months.

The Programmers Guild and others involved in the lawsuit are contending that the student visa extension approved by the Bush administration in 2008 was, in effect, a backdoor increase in H-1B limits that is cutting the number of jobs available to U.S. workers.

[ InfoWorld's Bill Snyder calls H-1B visas "a mess that could get even worse" and argues why the H-1B visa has got to go. ]

The U.S. District Court in New Jersey and U.S. Court of Appeals in Philadelphia each ruled against the tech workers, contending that they do not have legal standing because they weren't directly affected by the decision to extend student visas.

The group is now asking the Supreme Court to decide "whether American science, technology, engineering and mathematics workers can challenge changes to U.S. Department of Homeland Security regulations, which allow aliens in those fields to work in the United States for an extended period of time after graduation as 'foreign students.' "

The Programmers Guild is joined in the lawsuit by the American Engineering Association, Inc., the Bright Future Jobs lobbying group and a number of individuals identified in court papers as tech workers.

The group is challenging a visa program called optional practical training (OPT). The Bush administration approved the extension in response the high visa demand at the time and the subsequent backlog in H-1B applications. The recession has subsequently curtailed demand and so far this year, only about 66,000 visas have been received toward a cap of 85,000 visas.

In its decision, the Philadelphia appeals court said the plaintiffs "have failed to allege facts establishing that their injuries are 'concrete and particularlized' or 'actual or imminent' rather than 'conjectural or hypothetical.'"

The U.S. Court of Appeals in Philadelphia has ruled against the tech workers that have been fighting a federal decision to allow foreign students to work on a student visa from one year to 29 months.

Whether American science, technology, engineering and mathematics workers can challenge changes to U.S. Department of Homeland Security regulations which allow aliens in those fields to work in the United States for an extended period of time after graduation as "foreign students."