Judicial Watch Amicus Brief Challenges Obama’s Executive Action on Student Visas

“DHS’ broad, unauthorized regulatory-rewrite of Immigration and Naturalization Act statute in question is especially harmful because it oversteps the agency’s authority and usurps the powers reserved to Congress.”

(Washington, DC) – Judicial Watch announced today that on April 6, 2015, it filed an amicus curiae brief in the U.S. District Court for the District of Columbia in support of the Washington Alliance of Technology Workers’ (WashTech) motion for summary judgment in its lawsuit challenging the Department of Homeland Security’s (DHS) rewrite of the Immigration and Naturalization Act (INA).  DHS is illegally allowing foreign students to work in the U.S. for at least two years after they graduate (Washington Alliance of Technology Workers v. U.S. Department of Homeland Security (No. 1:14-cv-529)). WashTech is represented by the Immigration Reform Law Institute.

In November 2014, the U.S. District Court allowed WashTech’s lawsuit to proceed, denying the government’s motion to dismiss.  The case challenges the DHS rule expanding the Optional Practical Training (OPT) program to allow foreign students in science, technology, engineering and mathematics (STEM) fields to work in the United States for up to 29 months after graduation under their “F-1” student visas, rather than requiring them to obtain the H-1B work visa, as federal law requires. Under federal law, student-visa holders must leave the country once their studies conclude. The Obama administration expanded availability of this amnesty for non-immigrant student-visa holders, and seeks to expand the amount of time eligible student foreign nationals can work full-time under a student visa to as long as four years after they finish their education, as long as they work technology jobs.

In its brief to the District Court, Judicial Watch expresses concern for the Obama administration’s lawless approach to immigration:

Judicial Watch is concerned that DHS’ unlawful action poses a special threat to the rule of law, and is concerned about the corrosive effect of that violation on American society. DHS’ broad, unauthorized regulatory-rewrite of the Immigration and Nationalization Act (“INA”) statute in question is especially harmful because it oversteps the agency’s authority and usurps the powers reserved to Congress. In addition, DHS’ violation of the statute turns a blind eye to a primary purpose of the INA – namely, to ensure that the right to participate in the market for U.S.-based jobs is fairly extended to American citizens and residents deemed lawful by Congress.

In defending WashTech’s standing to challenge in court the abuse of student visas, Judicial Watch argues “illegal government conduct” and the “inherently offensive” nature of government actions which exceed statutory limits should allow WashTech its day in court:

In the present case, while the primary parties within the “zone of interest” of 8 U.S.C. § 1101(a)(15)(F)(i) [the federal statute authorizing and limiting student visas] may be foreign students, when the government begins to ignore the text of that statute to grant even more benefits to foreign students than Congress intended, the “zone of interests” shifts towards those who are harmed by that unlawful expansion of the statute.

And, echoing the decision of Judge Royce Lamberth, the U.S. District Court judge who has enjoined much of President Obama’s most recent executive amnesty measure, Judicial Watch describes how the Obama administration has “abdicated” its constitutional responsibility by failing to enforce federal immigration law that limits student visas to students:

[T]he federal government has a high standard of responsibility and a fundamental obligation to ensure that the immigration laws are appropriately applied as Congress intended and enforced as required by statute. Failure to do so amounts to an abdication of duty … As in ultra vires [“beyond the powers”] actions, government abdication similarly broadens the relevant zone of interest [to make standing available to additional litigants]…

“Student visas aren’t for workers. And work visas aren’t for students. President Obama would worsen abuse of an already corrupt and lawless student visa program. If President Obama wants to give American jobs to student-visa holders, then he should push Congress to pass the law,” said Judicial Watch President Tom Fitton. “In the meantime, his brazen lawlessness allows victims of illegal federal immigration policies to go to the federal courts for justice.”

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Judicial Watch, Inc., a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law. Through its educational endeavors, Judicial Watch advocates high standards of ethics and morality in our nation’s public life and seeks to ensure that political and judicial officials do not abuse the powers entrusted to them by the American people. Judicial Watch fulfills its educational mission through litigation, investigations, and public outreach.