John Miano's blog

The OPT Case: What's Next?

By John Miano, January 19, 2016

I last reported on the status of the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security STEM OPT case here. On August 12, 2015, the D.C. District vacated the regulations put in place under Bush that were designed to circumvent the H-1B quotas by allowing aliens to work on student visas instead, but stayed the vacatur until February 12, 2016, so that aliens working on STEM OPT extensions would not have to immediately leave the country.

Both parties have taken the case to the next step on two fronts, battling in parallel. Read more...

Will the Supreme Court Take the DAPA Case?

By John Miano, January 4, 2016

There is a lot happening on the immigration legal front right now, including the government's petition to the Supreme Court for a writ of certiorari to review the preliminary injunction over DAPA; DHS's new proposed regulations to effectively hand out green cards in excess of the annual limits; DHS's request for a delay of the District Court's vacatur of its guestworker program created through regulation out of student visas; and, on the horizon, a court decision on allowing spouses of guestworkers to work in the United States as well. Read more...

The Slippery, PC Application of "Standing" in the States' Lawsuit against Obama's Amnesty

By John Miano, December 29, 2015

I attended Seton Hall Law School during a period of transition. At that time the professors were divided between those who took an older approach to teaching and the law and those with a newer approach. The old-school professors were people who had significant experience practicing law then went into teaching. The new school of law professor graduated from Harvard or Yale, clerked for a federal judge, then went into teaching and has little to no practical experience in law. The more of the Harvard/Yale professors a school has, the higher the Harvard/Yale network of professors rate the school in the U.S. News peer rankings, producing a high ranking for the school. Read more...

DHS Files Last-Ditch Motion to Preserve Improper OPT Rules

By John Miano, December 27, 2015

As we have reported previously, the U.S. District Court for the District of Columbia vacated new regulations for the Optional Practical Training (OPT) program effective February 12, 2016. The court gave DHS a six-month delay to allow it to take some form of corrective action. The deadline for DHS to correct by getting a new rule in place has come and gone.

(OPT is for foreign workers masquerading as students; the new regulations extend the period of time foreign graduates in STEM fields (Science, Technology, Engineering, and Math) could work under PT status.) Read more...

Speaker Ryan's Unpersuasive Response on H-2B Visas

By John Miano, December 23, 2015

On Monday I was one of many to write about the travesty of Paul Ryan's corrupt business-as-usual-in-Washington budget bill. Yesterday, Speaker Ryan responded to the critics, a response that shows how deprived of reality the leaders are in Congress.

The main area of contention is the changes to the H-2B visa program. (My colleague David North also addresses Ryan's assertions about the program.)

The speaker's response starts off with the heading, "And Nothing Was 'Slipped' into the Bill Either."

To which I have to ask, how stupid does Speaker Ryan think we are? Read more...

The American Public Keeps Getting "Sold Out"

By John Miano, December 21, 2015

Congress keeps providing new opportunities to plug the book Michelle Malkin and I recently wrote – Sold Out: How High-Tech Billionaires & Bipartisan Beltway Crapweasels Are Screwing America's Best & Brightest Workers.

Last week we had the spectacle of the 2,009-page spending bill for the remainer of the 2016 fiscal year, in which the American people were once again sold out. Read more...

The GOP Presidential Debate and Immigration

By John Miano, December 16, 2015

The theme of last night's Republican presidential debate was national security. Immigration and border security were more of an appendix than a key part of the debate.

There is nothing earth-shattering to report (the transcript is here), but here is what we got: Read more...

No New OPT Rule in Today's Federal Register

By John Miano, December 14, 2015

We previously reported that the DHS regulations allowing non-student graduates to work on student visas for 29 to 35 months on student visas under the Optional Practical Training program (OPT) were vacated by the U.S. District Court in D.C. vacated for DHS's failure to give notice and comment. DHS crafted these regulations secretly, in cahoots with industry lobbyists, as a means to circumvent the H-1B visa quotas. Nonetheless, the District Court delayed vacating the rule for six months (until February 12, 2016) to give DHS time to do something to lessen the impact. Read more...

'Sold Out' to Lobbyists: A Look at the I-Squared Act

By John Miano, December 8, 2015

Michelle Malkin and I have written a new book, Sold Out: How High-Tech Billionaires & Bipartisan Beltway Crapweasels Are Screwing America's Best & Brightest Workers.

Among much else we cover the I-Squared Act, S.153, (short for the "Immigration Innovation Act of 2015"). If you are an American worker, that bill is more appropriately called the "I'm Screwed Act". But there was so much other ground to cover, our book does not go into the bill's provisions in detail. Therefore, I thought I would take the time to do that here. Read more...

Update on H-1B and OPT Court Cases

By John Miano, November 3, 2015

In May, DHS put in place regulations allowing certain spouses of H-1B workers to work in the United States as well. There is no authorization for the agency to allow such work, but DHS just did it anyway.

Americans who were replaced by H-1B workers at Southern California Edison filed a lawsuit to have the regulations vacated. In court, DHS made the astounding claim that it has the authority to allow any alien to work in the United States unless Congress explicitly prohibits it. Most constitutional scholars say the opposite: that an agency has only the authority that Congress gives it. Read more...

District Court Vacates 2008 Regulations that Expanded OPT

By John Miano, August 20, 2015

I returned home from vacation with a cold to find that the D.C. District Court had issued an opinion in the Washington Alliance of Technology Workers [WashTech] v. U.S. Department of Homeland Security case. The court had vacated (i.e., invalidated) the 2008 regulations that created expansions for the Optional Practical Training Program (OPT) effective February 12, 2016. While the news has been completely ignored by the mainstream media, it has created a firestorm in the legal and trade press. Read more...

Update on Save Jobs USA's H-4 Case

By John Miano, July 7, 2015

Last week there was a little activity in the Save Jobs USA case against DHS over its use of regulation to allow aliens to work on H-4 visas. Judge Chutkan denied DHS's motion to dismiss the case on procedural grounds. That means the case will move to a decision. A win is still a win, but I would not read too much into this decision because, just as with the denial of the preliminary injunction motion, no merit issues were decided. Read more...

Primer for Reporters Looking Into the H-1B Program

By John Miano, July 1, 2015

American media, I welcome you to the H-1B cesspool. After decades of neglect, I am happily surprised that Southern California Edison and Disney have drawn new attention to the H-1B program.

I do have one nit to pick. Many of you are referring to "loopholes" and "abuse". That is entirely incorrect. Disney and SCE show that the H-1B program is working as it designed to work. You need to start looking deeper. Read more...

New York Times Almost Gets It Right on H-1Bs

By John Miano, June 17, 2015

We now even have the New York Times editorial board calling for reform of the H-1B program. While I am glad to have them on board, the editorial does make a couple of serious factual mistakes.

First, the Times states that employers are using "loopholes" to replace Americans. These are not loopholes. In 1998, Congress explicitly made it legal to replace Americans with H-1B workers in nearly all circumstances. In 2004, Congress explicitly gave employers the ability to pay H-1B workers extremely low wages. Read more...

Mainstream Media Finally Notices Workers Displaced by H-1Bs

By John Miano, June 5, 2015

I am pleasantly surprised to see that the news media is taking an interest in Americans being replaced by foreign workers on H-1B visas.

In the 1990s, the media published such stories without restraint. However, as political correctness grew, those stories disappeared. The story the media wants the public to believe now is that foreign workers don't take American jobs — they create them. When the facts do not fit that politically correct narrative, the media tends to ignore the story altogether.

But maybe change is in the wind. Read more...

Obama Amnesty Supporters Don't Let Facts Get in the Way of a Good Story

By John Miano, June 2, 2015

I have refrained from writing about DACA and DAPA because most of the legal analysis in the media (including that of noted constitutional law scholars) is total garbage and I did not want to get into a fight with fools.

However, this post from the tin-foil hat crowd illustrates the growing connection between my own lawsuits and these two programs — but in a different way than portrayed here. Read more...

Obama's 'Rock-Solid' Legal Argument for Granting Work Permits

By John Miano, June 1, 2015

I have yet to see any description of Obama's "rock solid legal argument", as the learned folks at the New York Times editorial page describe DAPA, so I thought I would create one now that I am running into it in other cases.

You may have noticed that the Constitution confers all powers over immigration to the Congress. You might then expect that the way the immigration system is supposed to work is that Congress defines the classes of aliens eligible work in the United States and that DHS has the broad authority to determine the individual aliens within those classes who are authorized to work.

That is not how Obama's DHS sees things. Read more...

No Preliminary Injunction in H-4 Visa Case; Main Event Still to Come

By John Miano, May 25, 2015

Unfortunately – and as I predicted from the hearing – the preliminary injunction in the H-4 case was denied, solely on the issue of "irreparable harm". (See background on the lawsuit here – it is a challenge to DHS's unilateral grant of work authorization to holders of H-4 visas, who are the spouses of H-1B foreign workers. This was one of the executive actions President Obama announced in November, and it will go into effect as scheduled on Tuesday.) Read more...

Update on Lawsuit over Work Permits for Spouses of H-1Bs

By John Miano, May 21, 2015

Today was the hearing for the preliminary injunction over the DHS regulations authorizing work under H-4 visas (for the spouses of H-1B visa holders; some background on the lawsuit is here.) This hearing was not on the merits of the case – whether DHS is permitted by law to grant work authorization to H-4 visa holders – but rather whether implementation of the new regulations (which are scheduled to go into effect next week) should be put on hold until the lawsuit is resolved. Normally, each party spends 15 minutes answering the judge's questions. I was answering questions for 45 minutes.

One thing is clear: The case is being taken seriously by the court. Read more...

Lawsuit Asks Whether the President Can Give Work Authorization to Anyone He Wants

By John Miano, April 29, 2015

It is well known that the utility Southern California Edison recently H-1B'd about 500 American employees. A number of these Americans who were replaced by H-1B workers have fought back by filing a lawsuit challenging the recent regulations to authorize spouses of H-1B workers on H-4 visas to work as well. (I am an attorney representing Save Jobs USA, the organization that filed the lawsuit.) Read more...

H-1B Advocate: Don't Believe Your Lying Eyes

By John Miano, April 9, 2015

In the past few months we have learned that hundreds Americans at Southern California Edison have been replaced by H-1B workers. A few hundred more Americans at Walt Disney World have been replaced by H-1B workers. Ditto at Northeast Utilities (now Eversource).

Such replacements have been going on since at least 1994. But a paper from a new Washington, D.C. libertarian think tank claims they could not have happened. Read more...

Immigration Lawyers Admit H-1B Employers Discriminate Against Americans

By John Miano, April 7, 2015

Sometimes the truth slips out accidentally. The immigration attorney web site visanow.com has put out a press release about a survey of H-1B employers it conducted. Visanow proclaims in its headline:

U.S. Companies Say H-1B Hires are "Critical" to Success

H-1B Incompetence

By John Miano, March 24, 2015

On my last project before law school, we had an H-1B database administrative, Uma. Uma did not know the first thing about databases and struggled to learn through books on the job. Sadly, she had no real computer talent and would never become very good in the field.

So why was Uma on the project?

The company put in place a policy of only allowing contract workers from H-1B bodyshops to save them about $10 an hour. Read more...

Senate Hearing: No Consensus on Protecting American Workers

By John Miano, March 22, 2015

I testified last week before the Senate Judiciary Committee on Reforms Needed to Protect Skilled American Workers. It was a great honor to be invited. However, participating in an event like this highlights the growing isolation between Washington and the rest of America.

At one time there was a consensus that American citizens should come first under our immigration laws. The Supreme Court has repeatedly held that preserving jobs for American workers is a primary purpose of our immigration laws; see, for instance Reno v. Flores, 507 U.S. 292, 334 (1993).

No such consensus exists in today's Washington. Read more...

Southern California Edison Workers Just More H-1B Roadkill

By John Miano, February 9, 2015

Over the years it has become so common for companies to replace Americans with H-1B workers that the practice makes little news now. A few days ago we learned that Disney was H-1B-ing American programmers and it only made the local news in Orlando. That has not been the case at Southern California Edison, where the story got picked up by the Drudge Report.

Immigration lawyers are now in BS reaction mode. The Americans being fired should sue for discrimination or complain to the Department of Labor. Yet immigration lawyers know full well that such actions would be futile for they are the ones who have gone to extreme lengths to ensure that replacing Americans with H-1B workers remains legal. Read more...

Jonathan Gruber, Voter 'Stupidity', and Immigration

By John Miano, November 17, 2014

The story of Jonathan Gruber's videotaped commentary on Obamacare sheds light on the immigration debate.

Gruber is an MIT professor of economics who collected $400,000 of taxpayer dollars to come up with the plan for Obamacare. Gruber later appeared in a video in which he described the deception used to mislead the American people on the legislation. Gruber describes the how the bill was intentionally written in a tortured way to mislead the public, how "a lack of transparency is a huge political advantage", and refers to the "stupidity of the American voter". Read more...

Former Congressman Misrepresents His Own Statute on Immigration Quotas

By John Miano, October 23, 2014

President Obama has been threatening to take unilateral action on immigration through executive action after the election. One of the threatened actions is to change the method of determining the annual level of legal immigration. In almost all cases, immigrant visas (green cards) are subject to quotas. Rather than count all of the visas granted, such a change would count only the principal applicants against the numerical caps, and not include any dependents (spouses and minor children), thus increasing immigration significantly without authorization from Congress.

Former Rep. Bruce Morrison (D-Conn.), now an immigration lawyer and lobbyist, pushed for this scam in a Wall Street Journal letter to the editor this week. Read more...

American Companies More Interested in Outsourcing than H-1Bs

By John Miano, June 5, 2014

The largest users of H-1B visas are Indian bodyshops that specialize in moving American jobs overseas.

At the same time, American technology companies claim there are not enough H-1B visas available.

I get asked the obvious question frequently: Why don’t American companies support changing the H-1B rules to have a more equitable distribution of visas? Read more...

92% of Top Tech Companies Created in the U.S. Were Founded by Native-Born Americans

By John Miano, June 3, 2014

But didn't the press report that 36 percent of the top technology companies were founded by immigrants?

Yes it did. The figures came from a presentation by Mary Meeker. That presentation includes this slide making that very claim. Naturally, Ms. Meeker followed that slide with the obligatory call for more cheap foreign workers on H-1B visas. Read more...

Obama Responds to Grim Jobs Situation by Bringing in More Workers

By John Miano, May 16, 2014

The nation’s job woes continue: 83 percent of graduating college seniors do not have a job yet. In technology fields, where corporate America prattles that there is a crisis worker shortage, 82 percent of graduates do not have a job. Read more...