Save Jobs USA v. DHS

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 27, 2019 Decided November 8, 2019

No. 16-5287

SAVE JOBS USA,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

OFFICE OF GENERAL COUNSEL,

APPELLEE

ANUJKUMAR DHAMIJA, ET AL.,

INTERVENORS

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-00615)

John M. Miano argued the cause for appellant. With him

on the briefs were Dale Wilcox and Michael Hethmon.

Matthew J. Glover, Attorney, U.S. Department of Justice,

argued the cause for appellee. On the brief were Glenn M.

Girdharry, Assistant Director, and Joshua S. Press, Trial

Attorney. Erez Reuveni, Assistant Director, entered an

appearance.

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Carl E. Goldfarb argued the cause and filed the brief for

intervenors.

Paul W. Hughes, Michael B. Kimberly, Jason Oxman,

Steven P. Lehotsky, Michael B. Schon, and Peter C. Tolsdorf

were on the brief for amici curiae The Chamber of Commerce

of the United States, et al. in support of appellees.

Before: TATEL and GRIFFITH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Save Jobs USA, an association

representing Southern California Edison workers, challenges a

Department of Homeland Security rule that permits certain visa

holders to seek lawful employment. The district court found

that Save Jobs lacked Article III standing and granted summary

judgment in the Department’s favor. We reverse. For the

reasons set forth in this opinion, we conclude that Save Jobs

has demonstrated that the rule will subject its members to an

actual or imminent increase in competition and that it therefore

has standing to pursue its challenge.

I.

Our nation’s immigration laws distinguish between two

categories of foreign nationals seeking admission to the United

States: “nonimmigrants,” who plan to stay in the country only

temporarily, and “immigrants,” who plan to stay permanently.

See 8 U.S.C. § 1184(b) (“Every alien . . . shall be presumed to

be an immigrant until he establishes . . . that he is entitled to a

nonimmigrant status . . . .”); id. § 1101(a)(15) (setting forth

nonimmigrant classifications). The rule challenged here

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attempts to ease the burdens faced by certain nonimmigrants

during their often-lengthy transition to immigrant status.

The Immigration and Nationality Act authorizes the

admission of nonimmigrants “to perform services . . . in a

specialty occupation,” id. § 1101(a)(15)(H)(i)(b), and those

specialty workers’ spouses, id. § 1101(a)(15)(H). Specialty

workers admitted under this provision receive H–1B visas,

which permit them to work in the occupation for which they

were admitted. 8 C.F.R. § 214.2(h)(1)(i), (ii)(B). The specialty

workers’ spouses receive H–4 visas, which permit the spouses

to reside in the United States but do not authorize them to work.

Id. § 214.2(h)(9)(iv). Generally, H–1B visa holders and their

H–4 spouses may reside in the country for a maximum of six

years, after which time they must depart and remain abroad for

at least one year before seeking to reenter in the same status.

8 U.S.C. § 1184(g)(4); 8 C.F.R. § 214.2(h)(13)(iii)(A).

Although the H–1B visa permits its holder to remain in the

United States only temporarily, an H–1B nonimmigrant may

obtain a permanent resident visa—better known as a green

card—through the employer-sponsored immigration process.

Getting a green card takes a long time. An employer must first

identify a job for which the H–1B visa holder will be

permanently hired and then certify to the Secretary of Labor

that (1) “there are not sufficient workers who are able, willing,

qualified[,] . . . and available” to fill the position; and (2) that

the alien’s employment “will not adversely affect the wages

and working conditions” of “similarly employed” workers in

the United States. 8 U.S.C. § 1182(a)(5)(A)(i). If the Secretary

approves the certification, the employer then submits a so-

called Form I–140 petition, which must be approved by the

Department before the H–1B visa holder can change status. See

id. § 1154(a)(1)(F), (b); 8 C.F.R. § 204.5(a). But even H–1B

visa holders with approved Form I–140 petitions may be

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unable to adjust status because the Act limits the total number

of available employment-based green cards. See 8 U.S.C.

§ 1151(d). The Act also specifies a per-country cap, further

limiting the number of green cards available to individuals

from the same country. See id. § 1152(a)(2). Once a country’s

cap is reached, applicants from that country must wait until

more employment-based green cards become available.

Recognizing the potential for delay in adjustment,

Congress amended the Act to permit H–1B visa holders who

have begun the employer-based immigration process to remain

and work in the United States while awaiting decisions on their

applications for lawful permanent residence. Under the

amended Act and its implementing regulations, H–1B

nonimmigrants with approved Form I–140 petitions who are

unable to adjust status because of per-country visa limits may

extend their H–1B stay in three-year increments until their

adjustment of status applications have been adjudicated. See

American Competitiveness in the Twenty-first Century Act of

2000, Pub. L. No. 106-313, § 104(c), 114 Stat. 1251, 1253

(codified at 8 U.S.C. § 1184 note); 8 C.F.R.

§ 214.2(h)(13)(iii)(E). In addition, H–1B visa holders who are

the beneficiaries of labor certification applications or Form I–

140 petitions are eligible for recurring one-year extensions of

H–1B status if 365 days have elapsed since the application or

petition was filed. See American Competitiveness in the

Twenty-first Century Act § 106(a)–(b), 114 Stat. at 1253–54,

as amended by 21st Century Department of Justice

Appropriations Authorization Act, Pub. L. No. 107-273,

§ 11030A, 116 Stat. 1762, 1836–37 (2002) (codified at

8 U.S.C. § 1184 note); 8 C.F.R. § 214.2(h)(13)(iii)(D).

Against this background, the Department issued a rule

permitting H–4 visa holders to obtain work authorization if

their H–1B visa-holding spouses have been granted an

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extension of status under the Act or are the beneficiaries of

approved Form I–140 petitions but cannot adjust status due to

visa oversubscription. Employment Authorization for Certain

H–4 Dependent Spouses, 80 Fed. Reg. 10,284, 10,285 (Feb. 25,

2015) (codified at 8 C.F.R. §§ 214.2, 274a) (“H–4 Rule”). By

making H–4 visa holders eligible for lawful employment, the

Department sought to “ameliorate certain disincentives that

currently lead H–1B nonimmigrants to abandon efforts to

remain in the United States while seeking [lawful permanent

resident] status, thereby minimizing disruptions to U.S.

businesses employing such workers.” Id. Specifically, the

Department explained that H–1B nonimmigrants and their

families often face long delays in the process of obtaining

permanent residence, and that H–4 visa holders’ inability to

work during these delays leads to “personal and economic

hardships” that worsen over time, “increas[ing] the

disincentives for H–1B nonimmigrants to pursue [lawful

permanent resident] status and thus increas[ing] the difficulties

that U.S. employers have in retaining highly educated and

highly skilled nonimmigrant workers.” Id. at 10,284.

Appellant Save Jobs, an association formed to “address the

problems American workers face from foreign labor entering

the United States job market through visa programs,” Compl.

¶ 8, challenged the rule in the district court, arguing that it

exceeded the Department’s statutory authority, and that, in

adopting it, the Department acted arbitrarily and capriciously.

The parties cross-moved for summary judgment on standing

and the merits. The district court, finding that Save Jobs failed

to demonstrate that the rule would cause its members any injury

and thus lacked Article III standing, granted summary

judgment in the Department’s favor. See Save Jobs USA v.

Department of Homeland Security, 210 F. Supp. 3d 1, 5, 8–11

(D.D.C. 2016).

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Save Jobs appealed. Following the early 2017 change of

presidential administrations, we held the case in abeyance,

initially to allow the incoming administration time to consider

the case and later because the Department expected to begin

the process of rescinding the rule. In December 2018, we

removed the case from abeyance and granted Immigration

Voice and two of its members permission to intervene in order

to defend the rule. “Our review is de novo.” American Institute

of Certified Public Accountants v. IRS, 804 F.3d 1193, 1196

(D.C. Cir. 2015) (citation omitted).

II.

“The ‘irreducible constitutional minimum of standing

consists of three elements’: ‘[t]he plaintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.’” Air Line Pilots

Ass’n, International v. Chao, 889 F.3d 785, 788 (D.C. Cir.

2018) (alteration in original) (quoting Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016)). As an association claiming

representational standing, Save Jobs has standing to sue if

“‘(1) at least one of [its] members has standing to sue in her or

his own right, (2) the interests [it] seeks to protect are germane

to its purpose, and (3) neither the claim asserted nor the relief

requested requires the participation of an individual member in

the lawsuit.’” American Institute, 804 F.3d at 1197 (quoting

American Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir.

2005)). The Department challenges only the first of these three

requirements. Because the district court disposed of this case at

summary judgment, Save Jobs “may not rest on ‘mere

allegations, but must set forth by affidavit or other evidence

specific facts’ demonstrating standing.” Shays v. Federal

Election Commission, 414 F.3d 76, 84 (D.C. Cir. 2005)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

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(1992)). “For purposes of the standing inquiry, we assume

[Save Jobs] would succeed on the merits of [its] claim.” Barker

v. Conroy, 921 F.3d 1118, 1124 (D.C. Cir. 2019).

Save Jobs argues, as it did in the district court, that the rule

harms its members in several ways, including by increasing

competition for jobs from H–1B visa holders. The doctrine of

competitor standing recognizes that “when regulations illegally

structure a competitive environment—whether an agency

proceeding, a market, or a reelection race—parties defending

concrete interests in that environment suffer legal harm under

Article III.” American Institute, 804 F.3d at 1197 (internal

quotation marks and alteration omitted). Relying on this “well-

established principle,” Air Line Pilots, 889 F.3d at 788, our

court has repeatedly held that an individual who competes in a

labor market has standing to challenge allegedly unlawful

government action that is likely to lead to an increased supply

of labor—and thus competition—in that market. See, e.g.,

Washington Alliance of Technology Workers v. Department of

Homeland Security, 892 F.3d 332, 339–40 (D.C. Cir. 2018)

(labor market for science, technology, engineering, and

mathematics jobs); Mendoza v. Perez, 754 F.3d 1002, 1011

(D.C. Cir. 2014) (labor market for open-range herding jobs). In

Washington Alliance of Technology Workers v. Department of

Homeland Security, for example, we held that a science,

technology, engineering, and mathematics workers’ union had

standing to challenge a Department rule allowing student visa

holders to remain in the United States and work after finishing

their degrees. 892 F.3d at 339–40, 342. The union alleged that

its members had applied to jobs at companies that employed

the student visa holders and that those companies had applied

for the extension on behalf of the student-employees. Id. at

339–40. We found that the union had standing to pursue its

challenge, id. at 342, explaining that “‘the basic requirement’”

of a competitor standing claim is “‘an actual or imminent

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increase in competition, which increase we recognize will

almost certainly cause an injury in fact,’” id. at 339 (quoting

Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010)).

Save Jobs contends that, like the regulation challenged in

Washington Alliance, the rule at issue here will cause its

members to face increased competition for jobs. Absent the

rule, argues Save Jobs, at least some H–1B visa holders

awaiting permanent residence would leave the United States—

exiting the labor pool—because their spouses are unable to

work. By authorizing H–4 visa holders to seek employment,

Save Jobs continues, the rule removes a key obstacle to H–1B

visa holders remaining in the United States throughout the

immigration process, meaning that more H–1B visa holders

will stay and compete with Save Jobs’ members than otherwise

would have.

The administrative record demonstrates as much. Cf.

Competitive Enterprise Institute v. National Highway Traffic

Safety Administration, 901 F.2d 107, 114–15 (D.C. Cir. 1990)

(relying on the “agency’s own experience and sound market

analysis” and the “public comments” contained in the

administrative record as evidence of standing). In promulgating

the rule, the Department sought to “incentivize H–1B

nonimmigrants and their families to continue to wait and

contribute to the United States”—that is, by working—

“through an often lengthy waiting period for an immigrant visa

to become available.” H–4 Rule, 80 Fed. Reg. at 10,296. The

Department expected the rule would “benefit U.S. employers

by decreasing the labor disruptions that occur when H–1B

nonimmigrants abandon the permanent resident process.” Id.

The record contains evidence confirming the Department’s

expectation: more than sixty commenters wrote that they had

planned to move out of the United States, but will instead

remain and pursue lawful permanent resident status as a result

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of the new rule; two dozen reported that they had already left

the country due to the prohibition on H–4 visa holder

employment; and several warned that they would soon leave

because H–4 visa holders cannot work under current (now

former) law. Id. at 10,288, 10,293. Indeed, the Department

expressly “disagree[d]” with one commenter’s concern that the

record “failed to indicate that potential immigrants have

abandoned the immigration process, or have decided against

coming to the United States in the first place, because their

spouses would not be authorized to work,” explaining that it

“believes that this rule will fulfill its intended purpose”—

namely, “encourag[ing] certain highly skilled H–1B

nonimmigrants to remain in the United States.” Id. at 10,293.

Given that Save Jobs has offered sufficient evidence to

show an “actual or imminent increase in competition,” Sherley,

610 F.3d at 73, all that remains is for it to demonstrate that its

members compete with H–1B visa holders in the labor market.

It has done so through its members’ affidavits. Two members

declare that they worked as information technology specialists

at Southern California Edison for more than fifteen years until

they were fired and replaced by H–1B visa holders. Bradley

Aff. ¶¶ 5, 8; Buchanan Aff. ¶¶ 7, 9. A third worked as a system

analyst at Southern California Edison for twenty years until

she, like the other two, was fired and replaced by an H–1B visa

holder. Gutierrez Aff. ¶ 5, 10. All three have been actively

looking for new jobs in the technology sector, including by

attending job fairs, participating in job placement programs,

and submitting job applications. See Bradley Aff. ¶ 13;

Buchanan Aff. ¶ 14; Gutierrez Aff. ¶¶ 12–13. Although Save

Jobs “has offered no evidence that the competitive harm” it

claims from the rule “has yet occurred”—indeed, the members

lost their jobs, and Save Jobs filed suit, before the rule went

into effect—“our precedent imposes no such requirement.”

American Institute, 804 F.3d at 1198. In short, the affidavits

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establish that Save Jobs’ members compete with H–1B workers

for technology jobs, and the rulemaking record itself

demonstrates that the rule will increase competition for jobs.

The Department insists that any injury to Save Jobs is

caused by the H–1B visa program, not by the rule. See

Appellee’s Br. 24–26. We disagree. Save Jobs has shown that

the rule will cause more H–1B visa holders to remain in the

United States than otherwise would—an effect that is distinct

from that of the H–1B visa holders’ initial admission to the

country.

The Department also contends that Save Jobs has failed to

demonstrate that its members are “direct and current

competitor[s],” Mendoza, 754 F.3d at 1013 (emphasis omitted)

(quoting KERM, Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir.

2004)), of H–1B visa holders. See Appellee’s Br. 26–28. But

the Department overreads our “direct and current competitor”

formulation, which simply distinguishes an existing market

participant from a potential—and unduly speculative—

participant. Our court first used the term in New World Radio,

Inc. v. FCC, where a licensee of a Washington, D.C. radio

station challenged a Federal Communications Commission

order granting a Maryland-based station’s license renewal

application. 294 F.3d 164, 166, 170 (D.C. Cir. 2002).

Explaining that injury to the Washington station could occur

“only if” the Maryland station “subsequently seeks and secures

the relocation of its [Maryland] broadcast license to the

Washington, D.C. programming area,” we held that the

Washington station lacked competitor standing to challenge the

license. Id. at 171–72; see also DEK Energy Co. v. FERC, 248

F.3d 1192, 1194 (D.C. Cir. 2001) (holding that a petitioner who

sold gas in the Northern California market lacked standing

where it failed to claim that its alleged competitor “ha[d] yet

exploited [its] capacity to sell a single molecule of gas in

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Northern California”); El Paso Natural Gas Company v.

FERC, 50 F.3d 23, 27 (D.C. Cir. 1995) (rejecting argument that

El Paso was a “potential competitor” of suppliers to the Baja

California market because it had not satisfied the pre-

conditions to the Federal Energy Regulatory Commission’s

approval of its entry into that market). By contrast, in this case

we know that H–1B visa holders have competed with Save

Jobs’ members in the past, and, as far as we know, nothing

prevents them from doing so in the future.

Making a related point, the Department argues that

because H–1B visa holders “by definition are already

employed,” Save Jobs must provide “more evidence that [H–

1B visa holders] are seeking new jobs in the same market as

Save Jobs’ members.” Appellee’s Br. 26–27 (emphasis

omitted). Again, we disagree. The supply side of a labor market

is made up of those individuals who are employed and those

actively looking for work. Indeed, in Washington Alliance, we

never questioned that technology job seekers competed in the

same labor market as student visa holders employed at

technology firms. See 892 F.3d at 339–40.

Next, the Department claims that any H–1B visa holders

affected by the rule “are by definition . . . staying to apply for

permanent residence,” making them “part of the domestic labor

pool of U.S. workers—not alien competitors.” Appellee’s Br.

27 (internal quotation marks omitted). We cannot see how this

defeats Save Jobs’ claim of increased competition, and the

Department never tells us.

At oral argument, Department counsel insisted that no H–

1B visa holder who will benefit from the rule will compete with

any Save Jobs members because eligibility for the rule depends

on the H–1B visa holder first having been offered a job for

which the Department of Labor has certified “no U.S. worker

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is available.” Oral Arg. Tr. 21:17–18. In effect, counsel invites

us to distinguish between H–1B visa holders generally, with

whom Save Jobs’ members are quite clearly in competition,

and H–1B visa holders who have begun the process of applying

for lawful permanent residence, who the Department contends

can only take jobs for which there is no American competition.

See id. at 28:11–19 (“They have not pled that they are seeking

employment at companies for which H–1B workers who would

receive a benefit from the H–4 Rule are currently employed,

but even if they did, . . . [that] would require . . . the prospect

that . . . the H–1B visa holder was in a job for which no U.S.

worker was available, but instead they were available.”).

The Department neither raised this argument before the

district court nor briefed it on appeal. “Generally, arguments

raised for the first time at oral argument are forfeited.” United

States ex rel. Davis v. District of Columbia, 793 F.3d 120, 127

(D.C. Cir. 2015). Given the Department’s insistence that the

certification procedure “goes to our jurisdiction,” however, we

shall consider it—“though we are disappointed in the

[Department] for raising this issue so late that [Save Jobs] had

no adequate opportunity to respond.” Shays v. Federal Election

Commission, 528 F.3d 914, 923 (D.C. Cir. 2008).

The argument lacks merit in any event. The rule, as well

as the Department’s own briefing here and before the district

court, explains that for H–1B visa holders’ spouses to qualify

for employment authorization, the H–1B visa holders need

only be the beneficiaries of pending labor certification

applications. See Appellee’s Br. 5–8; Def.’s Mem. in Supp. of

its Mot. for Summ. J. 3–4. While the application remains

pending, H–1B visa holders compete in the labor market

against Save Jobs’ members. Even more, after the labor

certification is issued, in certain circumstances H–1B visa

holders may change jobs without obtaining new certifications.

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See 8 U.S.C. § 1182(a)(5)(A)(iv) (explaining that a labor

certification for a nonimmigrant “covered by section

1154(j)”—which pertains to nonimmigrants whose permanent

residence applications remain pending for 180 days or more—

“shall remain valid with respect to a new job . . . if the new job

is in the same or a similar occupational classification as the job

for which the certification was issued”). The Department’s last-

second effort therefore does nothing to change our

understanding of the case.

One additional matter remains: Save Jobs challenges the

standing of Immigration Voice, Anujkumar Dhamija, and

Sudarshana Sengupta to intervene in this appeal. But a motions

panel has already ruled that the intervenors have standing, and

we are bound by that decision. See Petties v. District of

Columbia, 227 F.3d 469, 472 (D.C. Cir. 2000) (“Under this

court’s practice, a decision of the motions panel is the law of

the case; a later panel considering the merits is bound by that

law.”).

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III.

Given that the merits here involve complex questions

about the scope of the Department’s authority, which the

Department did not brief on appeal, and recognizing the

substantial possibility this case will be mooted by the

Department’s promised rescission of the rule, we think it best

to remand to give the district court an opportunity to thoroughly

assess and finally determine the merits in the first instance. Cf.

Save Jobs, 210 F. Supp. 3d at 12–13 (“briefly discuss[ing] the

merits of Plaintiff’s APA claim” but “mak[ing] no final

determination”). Accordingly, we reverse the district court’s

grant of summary judgment and remand for further

proceedings consistent with this opinion.

So ordered.