Petition for Writ of Certiorari — Washington Alliance of Technology Workers, Petitioner v. Department of Homeland Security, et al.

NO. _____

In the

Supreme Court of the United States

________________

WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,

Petitioner,

v.

UNITED STATES DEPARTMENT OF

HOMELAND SECURITY ET AL.,

Respondents.

________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

JOHN M. MIANO

COUNSEL OF RECORD

CHRISTOPHER J. HAJEC

Immigration Reform Law Institute

25 Massachusetts Ave. NW

Suite 335

Washington, DC 20001

202-232-5590

jmiano@verizon.net

Counsel for Petitioner

May 2023

i

QUESTIONS PRESENTED

1. Are the statutory terms defining nonimmigrant visas in 8 U.S.C. § 1101(a)(15) mere threshold entry requirements that cease to apply once an alien is admitted or do they persist and dictate the terms of a nonimmigrant’s stay in the United States?

2. When Congress has enacted a statutory scheme

governing a class of aliens in the Immigration and Nationality Act, is the Department of Homeland Security’s power to extend employment authorization to

that class of aliens through regulation limited to implementing the terms of that statutory scheme?

ii

PARTIES TO THE PROCEEDING

Petitioner is the Washington Alliance of Technology

Workers, Local 37083 of the Communications Workers

of America, AFL-CIO (Washtech). Petitioner was Appellant in the court of appeals.

Respondents are the U.S. Department of Homeland

Security, Secretary of Homeland Security, U.S. Immigration and Customs Enforcement; Director of U.S.

Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services; Director of U.S. Citizenship and Immigration Services.

Intervenor Respondents are the National Association of Manufacturers, the Chamber of Commerce of

the United States of America, and the Information

Technology Industry Council.

iii

RULE 29.6 DISCLOSURE STATEMENT

Petitioner, Washington Alliance of Technology Workers, is a not-for-profit labor union with no shareholders.

iv

RELATED PROCEEDINGS

The proceedings directly related to this case are:

• Wash. All. of Tech. Workers v. United States Dep’t

of Homeland Sec., No. 21-5028, U.S. Court of

Appeals for the District of Columbia Circuit.

Judgment entered October 4, 2022.

• Wash. All. of Tech. Workers v. United States Dep’t

of Homeland Sec., No. 16-CV-1170, U.S. District

Court for the District of Columbia. Judgments

entered January 28, 2021 and April 19, 2017.

• Wash. All. of Tech. Workers v. United States Dep’t

of Homeland Sec., No. 17-5110, U.S. Court of

Appeals for the District of Columbia Circuit.

Judgment entered June 8, 2018.

• Wash. All. of Tech. Workers v. United States Dep’t

of Homeland Sec., No. 15-5239, U.S. Court of

Appeals for the District of Columbia Circuit.

Judgment entered May 13, 2016.

• Wash. All. of Tech. Workers v. United States Dep’t

of Homeland Sec., No. 14-CV-529, U.S District

Court for the District of Columbia. Judgment

entered November 21, 2015.

v

TABLE OF CONTENTS

Questions Presented .................................................... i

Parties to the Proceeding ............................................ ii

Rule 29.6 Disclosure Statement ................................ iii

Related Proceedings ................................................... iv

Table of Authorities ................................................... ix

Opinions Below............................................................ 1

Jurisdiction .................................................................. 2

Statutes and Regulations ........................................... 2

Statement of the Case ................................................. 3

Reasons For Granting the Petition .......................... 14

I. The D.C. Circuit decision created a circuit

split on the scope of statutory nonimmigrant

visa terms. ............................................................. 16

II. The questions presented are

exceptionally important. ....................................... 21

Conclusion ................................................................. 29

vi

Appendix A

Opinion, United States Court of Appeals for

the District of Columbia Circuit, Wash. All.

of Tech. Workers v. U.S. Dep’t of Homeland

Sec., No. 21-5028 (October 4, 2022) .................... 1a

Appendix B

Opinion, United States District Court for

the District of Columbia, Wash. All. of Tech.

Workers v. U.S. Dep’t of Homeland Sec.,

No. 16-CV-1170 (January 28, 2021) .................. 88a

Appendix C

Opinion, United States Court of Appeals for

the District of Columbia Circuit, Wash. All.

of Tech. Workers v. U.S. Dep’t of Homeland

Sec., No. 17-5110 (June 8, 2018) ..................... 140a

Appendix D

Opinion, United States District Court for

the District of Columbia, Wash. All. of Tech.

Workers v. U.S. Dep’t of Homeland Sec.,

No. 16-CV-1170 (April 19, 2017) ..................... 166a

Appendix E

Opinion, United States Court of Appeals for

the District of Columbia Circuit, Wash. All.

of Tech. Workers v. U.S. Dep’t of Homeland

Sec., No. 15-5239 (May 13, 2016) .................... 226a

vii

Appendix F

Opinion, United States District Court for

the District of Columbia, Wash. All. of Tech.

Workers v. U.S. Dep’t of Homeland Sec.,

No. 14-CV-529 (August 12, 2015).................... 228a

Appendix G

Order Denying Petition for Rehearing En

Banc (February 1, 2023) .................................. 276a

Appendix H

Relevant Statutory Provisions ........................ 287a

Appendix I

Improving and Expanding Training

Opportunities for F-1 Nonimmigrant

Students With STEM Degrees and CapGap Relief for All Eligible F-1 Students,

81 Fed. Reg. 13,040–122 (Mar. 11, 2016) ....... 290a

Appendix J

Extending Period of Optional Practical

Training by 17 Months for F-1

Nonimmigrant Students With STEM

Degrees and Expanding Cap-Gap Relief for

All F-1 Students With Pending H-1B

Petitions, 73 Fed. Reg. 18,944–56 (April 4,

2008) ................................................................. 677a

viii

Appendix K

Pre-Completion Interval Training; F-1

Student Work Authorization, 57 Fed.

Reg. 31,954–57 (July 20, 1992) ....................... 734a

Appendix L ........................................................... 747a

Administrative Record, pp. 120–23, for

73 Fed. Reg. 18,944–56

ix

TABLE OF AUTHORITIES

Cases:

Akbarin v. Immigr. & Naturalization Serv.,

669 F.2d 839 (1st Cir. 1982) ............................... 10

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021)......................................... 26

Birdsong v. Holder,

641 F.3d 957 (8th Cir. 2011) .............................. 17

Buffington v. McDonough,

143 S. Ct. 14 (2022)............................................. 28

Chevron, U.S.A. v.

Nat. Res. Def. Council, Inc.

467 U.S. 837 (1984) ........................... 11–15, 23–24

City of Arlington v.

Fed. Commc'n Comm'n,

569 U.S. 290 (2013) ............................................. 28

Cuozzo Speed Techs., LLC v. Lee,

579 U.S. 261 (2016) ............................................. 28

Elkins v. Moreno,

435 U.S. 647 (1978)................................... 8, 16–17

Food & Drug Admin. v.

Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................. 26

Gazeli v. Session,

856 F.3d 1101 (6th Cir. 2017) ............................ 17

Graham v. Immigr. & Naturalization Serv.,

998 F.2d 194 (3d Cir. 1993) ................................ 18

x

Jie Fang v.

Dir. U.S. Immigr.& Customs Enf’t

935 F.3d 172 (3d Cir. 2019) ................................ 18

Xu Feng v. Univ. of Del.,

833 F. App’x 970 (3d Cir. 2021) .......................... 18

J. W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ............................................. 27

Khano v. Immigr. & Naturalization Serv.,

999 F.2d 1203 (7th Cir. 1993) ............................. 17

Immigr. & Naturalization Serv., v.

Nat’l Ctr. for Immigrants’ Rights,

502 U.S. 183 (1991) ............................................. 24

Int’l Longshoremen’s & Warehousemen’s

Union v. Meese,

891 F.2d 1374 (9th Cir. 1989) ............................. 21

Int’l Union of Bricklayers & Allied Craftsmen

v. Meese,

761 F.2d 798 (D.C. Cir. 1985) ..................... 3–4, 21

Int’l Union of Bricklayers & Allied Craftsmen

v. Meese,

616 F. Supp. 1387 (N.D. Cal. 1985) ................ 4, 21

Lok v. Immigr.& Naturalization Serv.,

681 F.2d 107 (2d Cir. 1982) ................................ 17

La. Pub. Serv. Comm’n v.

Fed. Commc'n Comm'n,

476 U.S. 355 (1986) ............................................. 28

xi

Loving v. United States,

517 U.S. 748 (1996)............................................. 26

Mistretta v. United States,

488 U.S. 361 (1989) ............................................. 27

Morel v. Immigr. & Naturalization Serv.,

90 F.3d 833 (3d Cir. 1996) .................................. 17

Moreno v. Univ. of Md.,

645 F.2d 217 (4th Cir. 1981) .............................. 17

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

142 S. Ct. 661 (2022)........................................... 26

Olaniyan v.

Dist. Dir., Immigr. & Naturalization Serv.,

796 F.2d 373 (10th Cir. 1986) ............................ 17

Rogers v. Larson,

563 F.2d 617 (3d Cir. 1977) ................................ 18

Sanchez v. Mayorkas,

141 S. Ct. 1809 (2021)................................... 16, 23

Save Jobs USA v.

U.S. Dep’t of Homeland Sec.,

No. 15-CV-615, slip op.

(D.D.C. Mar. 28, 2023) ........................................ 25

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .............................. 19

Toll v. Moreno,

458 U.S. 1 (1982)................................................. 17

Touray v. United States AG,

546 F. App’x 907 (11th Cir. 2013) ................ 16–17

xii

United States v. Texas,

579 U.S. 547 (2016)............................................. 19

Utility Air Regulatory Group v.

Env’t Prot. Agency,

573 U.S. 302 (2014) ............................................. 15

United States v. Igbatayo,

764 F.2d 1039 (5th Cir. 1985) ............................ 17

Von Kennel Gaudin v. Remis,

379 F.3d 631 (9th Cir. 2004) .............................. 17

Wash. All. Tech. Workers. v.

U.S. Dep’t of Homeland Sec.,

74 F. Supp. 3d 247 (D.D.C. 2014)......................... 7

Wash. All. Tech Workers v.

U.S. Dep’t Homeland Sec.,

156 F. Supp. 3d 123 (D.D.C. 2015)......... 1, 7–9, 10

Wash. All. Tech Workers v.

U.S. Dep’t Homeland Sec.,

650 Fed. Appx. 13 (D.C. Cir. 2016) .............. 1, 8–9

Wash. All. Tech Workers v.

U.S. Dep’t Homeland Sec,

249 F. Supp. 3d 524 (D.D.C. 2017)................... 1, 9

Wash. All. Tech Workers v.

U.S. Dep’t Homeland Sec.,

892 F.3d 332 (D.C. Cir. 2018)........................... 1, 9

Wash. All. Tech Workers v.

U.S. Dep’t Homeland Sec.,

518 F. Supp. 3d 448 (D.D.C 2021).............. 1, 9–10

xiii

Wash. All. Tech Workers v.

U.S. Dep’t Homeland Sec.,

50 F.4th 164 (D.C. Cir. 2022) ....................... 10–29

Wash. All. Tech Workers v.

U.S. Dep’t Homeland Sec.,

58 F.4th 506 (D.C. Cir. 2023) ........... 10–18, 22–28

West Virginia v. Env’t Prot. Agency,

142 S. Ct. 2587 (2022)........... 11, 14–15, 20, 26, 28

Whitman v. American Trucking Association,

531 U.S. 457 (2001) ............................................. 26

Youngstown Sheet & Tube Co. v.

Sawyer,

343 U.S. 579 (1952) ....................................... 25–26

Statutes:

The Immigration and Nationality Act of

1952, Pub. L. No. 82-414, 66 Stat. 163 3, 7, 17, 21

8 U.S.C. § 1101(a)(15) ...................................... 10, 16

8 U.S.C. § 1101(a)(15)(F)(i) .......................... 3, 22–23

8 U.S.C. § 1101(a)(15)(H) ....................................... 24

8 U.S.C. § 1101(a)(15)(H)(i)(b) ................................. 2

8 U.S.C. § 1103 ....................................................... 24

8 U.S.C. § 1184(a) ................................ 16, 20, 24–27

8 U.S.C. § 1184(g) .................................................... 4

8 U.S.C. § 1227(a)(1) .............................................. 16

8 U.S.C. § 1324a(h)(3) .............................. 4, 8, 18–20

xiv

Regulations:

Pre-Completion Interval Training; F-1

Student Work Authorization,

57 Fed. Reg. 31,954 (July 20, 1992) ..................... 4

Extending Period of Optional Practical

Training by 17-Months for F-1

nonimmigrant Students with STEM

(Science, Technology, Mathematics, and

Engineering) Degrees and Expanding CapGap Relief for All F-1 Students with

Pending H-1B Petitions,

73 Fed. Reg. 18,944 (Apr. 8, 2008) ................. 5–10

Employment Authorization for Certain H-4

Dependent Spouses,

80 Fed. Reg. 10,284 (Feb. 25, 2015) ..................... 4

Expanding Training Opportunities for F-1

Nonimmigrant Students with STEM

Degrees and Cap-Gap Relief for All

Eligible F-1 Students

81 Fed. Reg. 13,040 (Mar. 11, 2016) ........ 8–12, 19

International Entrepreneur Rule,

82 Fed. Reg. 5,238 (Jan. 17, 2017) ..................... 20

8 C.F.R. § 214.2(f)(5)(i)............................................. 7

8 C.F.R. § 214.2(f)(6) ................................................ 7

8 C.F.R. § 214.2(f)(10)(ii)(A)(3) ............................ 3, 7

Other Authorities:

Fed. R. Civ. P. 12(b)(6) ............................................. 9

xv

H.R. Rep. No. 82-1365 (1952) ................................ 24

Julia Preston, Toys ‘R’ Us Brings Temporary

Foreign Workers to U.S. to Move Jobs

Overseas, NY Times, Sept. 29, 2015 .................... 4

Neil Ruiz & Abby Budiman, Number of

Foreign College Students Staying and

Working in the U.S. After Graduation

Surges, Pew Research Center, May 18,

2018 ....................................................................... 4

S. Rep. No. 82-1137 at 11 (1952) ........................... 24

1

Petitioner, Washington Alliance of Technology Workers, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a) is

reported at 50 F.4th 164. The order denying rehearing

en banc (Pet. App. 276a) is published at 58 F.4th 506.

The district court’s memorandum opinion denying Petitioner’s motion for summary judgment (Pet.

App. 88a) is published at 518 F. Supp. 3d 448. The

opinion of the court of appeals reversing in part the

district court’s order dismissing the case for failure to

state a claim upon which relief can be granted (Pet.

App. 140a) is published at 892 F.3d 332. The district

court’s memorandum opinion dismissing the case for

failure to state a claim upon which relief can

be granted (Pet. App. 166a) is published at

249 F. Supp. 3d 524. The opinion of the court of appeals dismissing the appeal as moot and vacating the

judgment of the district court (Pet. App. 226a) is published at 650 Fed. Appx. 13. The memorandum opinion

granting in part and denying in part Petitioner’s motion for summary judgment (Pet. App. 228a) is published at 156 F. Supp. 3d 123.

2

JURISDICTION

The judgment of the court of appeals was entered on

October 4, 2022. Pet. App. 1a. A timely petition for rehearing was denied on February 1, 2023. Pet.

App. 276a. Jurisdiction was invoked in the district

court under 28 U.S.C. §§ 1331, 1346, and 1361. This

Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTES AND REGULATIONS

The statutes and regulations at issue are reproduced

in the appendix (Pet. App. 287a).

3

STATEMENT OF THE CASE

This case addresses the post-completion Optional

Practical Training Program (OPT), created by the Department of Homeland Security (DHS) under the

guise of student visas. 8 C.F.R. § 214.2(f)(10)(A)(ii)(3).

The F-1 student visa authorizes the admission of aliens who seek to enter the United States “solely” to

pursue a course of study at an accredited academic institution. 8 U.S.C. § 1101(a)(15)(F)(i). Yet OPT allows

aliens to remain in the U.S. in student visa status for

up to three and a half years after graduation to work

or be unemployed. While entirely the creation of regulation, OPT is now the largest alien guestworker program in the immigration system. Petitioner brought

this case under the Administrative Procedure Act,

challenging DHS’s authority to create such a massive

foreign labor program without any directive from Congress. Petitioner argued in the courts below that

(1) DHS lacks the authority to allow aliens to remain

in student visa status after graduation because this

extension directly conflicts with the statutory terms of

the student visa; and (2) DHS lacks the authority to

permit such nonstudents to work in student visa status. This litigation’s Dickensian, 15-year procedural

history stands in stark contrast to its complete lack of

factual issues and the seemingly straightforward

questions of law it presents.

1. Since the enactment of the Immigration and Nationality Act in 1952, the executive has published regulations permitting alien employment that were not

authorized by statute. For example, Int’l Union of

Bricklayers & Allied Craftsmen v. Meese addressed

4

standing in a challenge to regulations that allowed alien bricklayers to work on B visitor visas. 761 F.2d 798

(D.C. Cir. 1985). Those regulations were later held to

be in excess of agency authority. Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 616 F. Supp. 1387

(N.D. Cal. 1985). Starting in 2015, DHS began publishing regulations authorizing alien employment under the claim that the definition of the term unauthorized alien in section 1324a(h)(3) confers on DHS the

power to allow any class of aliens to work through regulation unless Congress explicitly prohibits them from

working. Pet. App. 83a; Employment Authorization

for Certain H-4 Dependent Spouses, 80 Fed. Reg.

10,284 (Feb. 25, 2015). Since then, the number of alien

employment programs created through regulations

has surged.

OPT is one example of an alien work program created through regulation that has no statutory basis.

The OPT program was created in 1992 without notice

and comment. Pre-Completion Interval Training; F-1

Student Work Authorization, 57 Fed. Reg. 31,954

(July 20, 1992) (1992 OPT Rule) (Pet. App. 734a). OPT

originally authorized all aliens in student visa status

to remain in the United States and work for a year after graduation. Pet. App. 745a.

2. The use of foreign labor has become one of the

most contentious issues in the computer industry as

employers have used cheap, foreign workers on H-1B

visas as a supply of college-educated workers to replace Americans. See e.g., Julia Preston, Toys ‘R’ Us

Brings Temporary Foreign Workers to U.S. to Move

Jobs Overseas, NY Times, Sept. 29, 2015. To protect

American workers, the H-1B program (section

5

1101(a)(15)(H)(i)(b)) imposes annual quotas that limit

the number of visas. 8 U.S.C. § 1184(g). So great is industry demand for such foreign labor that the quotas

are usually reached each year. E.g., Extending Period

of Optional Practical Training by 17-Months for F-1

nonimmigrant Students with STEM (Science, Technology, Mathematics, and Engineering) Degrees and

Expanding Cap-Gap Relief for All F-1 Students with

Pending H-1B Petitions, 73 Fed. Reg. 18,944, 18,946

(Apr. 8, 2008) (2008 OPT Rule) (Pet. App. 677a). In

2007, Microsoft Corporation concocted a scheme to circumvent the H-1B quotas protecting American workers using regulation. Pet. App. 748a–752a. Microsoft’s

plan was for DHS to increase the duration of OPT by

17 months (from a year to 29 months) so that OPT

could serve as a substitute for H-1B visas. Pet. App.

749a–750a. Microsoft presented its plan to the DHS

secretary at a dinner party, Pet. App. 748a, and requested that it be implemented as an interim rule.

Pet. App. 750a. Thereafter, DHS worked in secret with

industry lobbyists to craft regulations implementing

Microsoft’s scheme. 2008 OPT Rule, Administrative

Record at 124–27, 130–34.

Just as Microsoft requested, DHS published the resulting 2008 OPT Rule as an interim rule without notice and comment. Pet. App. 677a & 702a. The publication of the rule was the first notice the public received that DHS was even considering such regulations. The 2008 OPT Rule contained two extensions to

the original one-year OPT term. The first applied to

all graduates and extended OPT from the time an

H-1B petition was filed on behalf of the alien until a

decision was made on that petition. Pet. App. 692a.

6

The second extension only applied to aliens with degrees in fields DHS listed as being STEM (science/technology/engineering/mathematics). This extension was for 17 months. Pet. App. 686a. There is no

explanation in the record why this odd duration was

chosen other than it was what Microsoft requested.

Pet. App. 749a. Combined, the two extensions allowed

nonimmigrants to work on student visas for up to

35 months after graduation. As a further means to increase the foreign labor supply, DHS also allowed unemployed alien graduates to remain in the U.S. under

the OPT program so they could look for work. Pet.

App. 701a.

DHS gave no educational rationale whatsoever for

extending the duration of OPT employment. Instead,

disagreeing with the policy judgment of Congress,

DHS justified the 2008 OPT Rule on the ground that

the quotas on H-1B visas, which Congress enacted to

protect American workers, harmed businesses. Pet.

App. 684a–689a. The only purpose of the 2008 OPT

Rule was to frustrate the protections for American

workers by trumping the quotas in the H-1B statutes

through regulation. Ibid. Since the 2008 OPT Rule expanded the work period to a length similar to that of a

guestworker visa, the OPT program has grown to surpass H-1B as the largest guestworker program in the

entire immigration system. Neil Ruiz & Abby Budiman, Number of Foreign College Students Staying and

Working in the U.S. After Graduation Surges, Pew Research Center, May 18, 2018, p. 7.

3. Petitioner, Washington Alliance of Technology

Workers (Washtech), filed suit in the U.S. District

Court for the District of Columbia on March 28, 2014.

7

Petitioner argued that the 2008 OPT Rule was made

unlawfully without notice and comment; that the OPT

program was unlawful because DHS had no authority

to allow aliens to remain in the United States in student visa status after they had completed their course

of study (graduated) and were no longer students; and

that DHS had no authority to allow such non-students

to work in student visa status. In deciding DHS’s motion to dismiss, the district court held that Petitioner

had standing to challenge the 2008 OPT Rule. Wash.

All. Tech. Workers. v. U.S. Dep’t of Homeland Sec.,

74 F. Supp. 3d 247 (D.D.C. 2014) (Washtech I). On

summary judgment, the district court held that the

2008 OPT Rule was made unlawfully without notice

and comment. The district court also held, however,

that the rule was within DHS’s authority. Wash. All.

Tech. Workers. v. U.S. Dep’t of Homeland Sec.,

156 F. Supp. 3d 123, 140 (D.D.C. 2015) (Washtech II)

(Pet. App. 228a). The district court brushed aside the

direct conflict between the student visa statute’s limitation to those solely pursuing a course of study1 at a

school and OPT’s authorization of work outside of a

course of study in industry by adopting the never-before-seen interpretation that the terms of the student

visa statute merely provided entry requirements that

DHS was free to disregard once an alien enters the

United States. Pet. App. 254a. The district court could

cite no judicial opinions in support of this new

1 DHS regulations define a course of study as education taking

place at a school. 8 C.F.R. § 214.2(f)(6). This definition has never

been in dispute in this case because OPT is explicitly not part of

a course of study. 8 C.F.R. §§ 214.2(f)(5)(i), (10)(ii)(A)(3)

8

interpretation because, since the enactment of the Immigration and Nationality Act in 1952, every opinion

of this Court, the courts of appeals, and other district

courts addressing the scope of the student visa statute

had consistently interpreted the visa terms as applying to an alien’s entire duration of stay. E.g., Elkins v.

Moreno, 435 U.S. 647, 665–66 (1978). This reinterpretation of the statute allowed the district court to erase

its conflict with OPT, and so to find that the OPT program was within DHS’s authority. Pet. App. 266a. The

district court vacated the 2008 OPT Rule for failure to

provide notice and comment but stayed vacatur so

that this ruling would have no effect, and directed

DHS to republish the rule with after-the-fact notice

and comment. Pet. App. 275a.

4. Petitioner appealed the Washtech II decision to

the U.S. Court of Appeals for the District of Columbia

Circuit. While the appeal was pending, DHS promulgated its replacement to the 2008 OPT Rule, Improving and Expanding Training Opportunities for F-1

Nonimmigrant Students with STEM Degrees and

Cap-Gap Relief for All Eligible F-1 Students 81 Fed.

Reg. 13,040 (Mar. 11, 2016) (2016 OPT Rule) (Pet.

App. 290a). The 2016 OPT rule reenacted or replaced

all of the OPT provisions of the previous OPT Rules.

Pet. App. 625a–647a. The 2016 OPT Rule removed all

of its predecessor’s claims that the purpose of expanding OPT was to provide labor to industry and replaced

them with a pretextual educational justification. Pet.

App. 296a. It also replaced the Microsoft-dictated

STEM extension duration of 17 months with a round

24 months. Pet. App. 290a. The 2016 OPT Rule (unlike

the 2008 OPT Rule) was promulgated under DHS’s

9

claim that section 1324a(h)(3) established the agency’s

dual authority with Congress to permit alien employment, a claim that DHS had begun to make the previous year in regulations authorizing alien employment.

Pet. App. 314a, 368a. The D.C. Circuit held that

Washtech II was moot because of the new rule and vacated the decision. Wash. All. of Tech Workers v. U.S.

Dep’t of Homeland Sec., 650 F. App’x 13 (D.C. Cir.,

2018) (Washtech II Appeal) (Pet. App. 226a).

5. Petitioner promptly filed another complaint in

the D.C. District Court that alleged that the 2016 OPT

rule was in excess of DHS’s authority for the very

same reasons the 2008 OPT Rule was. This time, the

district court dismissed the case under Fed. R. Civ. P.

12(b)(6) for failure to state a claim. Wash. All.

of Tech Workers v. U.S. Dep’t of Homeland Sec.,

249 F. Supp. 3d 524 (D.D.C. 2017) (Washtech III) (Pet.

App. 166a). Petitioner again appealed and the D.C.

Circuit reversed. Wash. All. of Tech Workers v. U.S.

Dep’t of Homeland Sec., 892 F.3d 332 (D.C. Cir. 2018)

(Washtech III Appeal) (Pet. App. 140a).

On January 28, 2021, the district court issued an

opinion on summary judgment. Wash. All. of Tech.

Workers v. United States Dep’t of Homeland Sec.,

518 F. Supp. 3d 448 (D.D.C. 2021) (Washtech IV) (Pet.

App. 88a). The Washtech IV opinion follows the reasoning of the vacated Washtech II opinion, with much

of the text quoting from the previous opinion. The district court circumvented the direct conflict between

OPT and the student visa statute by readopting the

interpretation that the statutory definition of the F-1

student visa merely set forth the conditions for entry

into the United States and holding that DHS was free

10

to ignore those statutory terms once an alien entered

the country. Pet. App. 119a–120a. Again, the district

court did not mention any of the conflicting precedent

or other judicial authority that had universally interpreted the terms of the student visa statute as applying for the alien’s entire stay. E.g., Akbarin v. Immigr.

& Naturalization Serv., 669 F.2d 839, 840 (1st Cir.

1982)

The Washtech IV opinion did not address DHS’s

claim in the 2016 OPT Rule of having dual authority

with Congress to authorize alien employment through

regulation. The 2008 OPT Rule was published before

DHS started issuing work authorization regulations

under that claim in 2015. Consequently, the

Washtech II opinion never addressed this issue. By

tracking the reasoning and wording of Washtech II,

the Washtech IV opinion skipped this issue as well.

See Pet. App. 61a n. 1 (Henderson, J. dissenting).

6. a. Petitioner appealed again. Wash. All. of Tech.

Workers v. United States Dep’t of Homeland Sec.,

50 F.4th 164 (D.C. Cir. 2022) (Washtech IV Appeal)

(Pet. App. 1a). A divided panel of the D.C. Circuit affirmed while expanding the scope of the district court

decision. The majority held that the nonimmigrant

visa statutes in general (section 1101(a)(15)) only

specified “threshold entry criteria” that DHS can disregard once an alien enters the United States. Pet.

App. 57a; Pet. App. 287a (Rao, J., dissenting from denial of reh’g en banc). The majority reinterpreted the

Immigration and Nationality Act as creating a twostep process for governing nonimmigrants. Pet. App.

7a. First, the nonimmigrant statutes define entry criteria that cease to have effect once the alien enters.

11

Ibid. Second, section 1184(a) confers on DHS broad authority to govern nonimmigrants post-admission

through regulation. Ibid.; Pet. App. 283a (Rao, J., dissenting from denial of reh’g en banc).

The majority performed an analysis under the twostep process announced in Chevron, U.S.A. v. Nat. Res.

Def. Council, Inc. to evaluate whether OPT was within

DHS’s authority. 467 U.S. 837 (1984). Pet. App. 56a–

57a. Petitioner had argued that Congress had directly

addressed the issue of whether work after graduation

was permitted by restricting student visas to those

“solely” pursuing a course of study at an academic institution, and therefore OPT should fail at Chevron

step one. Pet. App. 66a–67a. The majority avoided addressing the facial conflict between the statute and the

2016 OPT Rule by applying its holding that the nonimmigrant visa statutes provide mere “threshold entry

criteria” that do not apply after an alien enters the

United States. Pet. App. 56a–57a. That interpretation

left no statute governing student visa terms after admission, so the analysis automatically skipped to

Chevron step two where the majority held OPT was

reasonably related to the student visa. Pet. App. 58a.

Like the district court, the majority did not address

any of the authority conflicting with its entry-criteriaonly interpretation. See Pet. App. 71a (Henderson, J.,

concurring in part and dissenting in part); Pet. App.

284a (Rao, J., dissenting from denial of reh’g). The majority also gave no explanation why DHS should receive deference in determining educational and labor

needs when such expertise lies in other agencies. See

West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587,

2612–13 (2022).

12

The majority made two additional holdings related

to alien employment that conferred vast authority on

DHS. First, an “employment authorization need not be

specifically conferred by statute; it can also be granted

by regulation.” Pet. App. 55a. Second, DHS is free to

extend employment to any class of nonimmigrants as

long as the employment is “reasonably related” to the

visa. Pet. App. 4a.

The majority also held that hearsay and unsworn

statements are admissible if they are admitted

through an amicus brief. Pet. App. 59a. The majority

then cited such otherwise inadmissible evidence as authority for its own decision in support of its Chevron

step two analysis that found DHS did not act arbitrarily and capriciously in the 2016 OPT Rule. Pet. App.

57a.

b. Judge Henderson concurred with the majority

that Petitioner had standing but dissented on the merits. Pet. App. 60. (Henderson, J. concurring in part and

dissenting in part). Judge Henderson’s dissent made a

detailed statutory analysis of the student visa statute.

Pet. App. at 69a–81a. The majority’s entry-criteriaonly interpretation of the student visa statute was a

“tortured interpretation” amounting to “verbicide.”

Pet. App. 73a–74a. Furthermore, the entry-criteriaonly interpretation was contrary to precedent. Pet.

App. 72a. Applying the student visa statute at Chevron step one, the statute was unambiguous in that student did not encompass “post-Graduation employment.” Pet. App. 75a. Judge Henderson concluded the

student visa statute “cannot reasonably be read to include post-completion OPT.” Pet. App. 74a.

13

7. Petitioner filed a timely petition for rehearing en

banc that was denied. Pet. App. 276a. Judge Henderson dissented from that petition denial and incorporated her Washtech IV dissent by reference. Pet. App.

279a. Judge Rao wrote a separate dissent with which

Judge Henderson joined. Pet. App. 280a (Rao, J., dissenting from denial of reh’g en banc).

Judge Rao observed that this case presents “a question of exceptional importance” and “has tremendous

practical consequences for who may stay and work in

the United States.” Ibid. “[T]here is not even a plausible textual basis for DHS to allow student visa holders

to remain in the country and work long after their student status has lapsed.” Pet. App. 283a. “By replacing

Congress’s careful distinctions with unrestricted Executive Branch discretion, the panel muddles our immigration law and opens up a split with our sister circuits.” Pet. App. 280a.

Judge Rao addressed the question of whether the

statutory visa terms are mere entry requirements by

noting that “the Supreme Court and other circuits

have consistently held nonimmigrant visa holders

must satisfy the statutory criteria both at entry and

during their presence in the United States.” Pet. App.

285a. The majority opinion “rests on a fundamental

misreading of the statute.” Pet. App. 283a. “In holding

that the nonimmigrant visa requirements are merely

conditions of entry, the court grants the Department

of Homeland Security [] virtually unchecked authority

to extend the terms of an alien’s stay in the United

States.” Pet. App. 280a.

Judge Rao found the majority’s holding that the Immigration and Nationality Act contained a “broad

14

delegation to DHS to confer additional work visas

through regulation” was incompatible with the political judgments made in the Act. Pet. App. 282a. Such

“‘extraordinary grants of regulatory authority’ require

not ‘a merely plausible textual basis for the agency action’ but ‘clear congressional authorization.’” Pet. App.

282a–283a (quoting West Virginia v. Env’t Prot.

Agency, 142 S. Ct. 2587, 2609 (2022)). She also noted

that “Congress has enumerated specific pathways for

aliens to work.” Pet. App. 282a. Yet the majority’s creation of a “‘reasonably related’ to the particular visa

category” standard allows DHS to make a regulatory

“end run” around the protections for American workers. Pet. App. 281a–282a.

REASONS FOR GRANTING THE

PETITION

1. This case presents “a question of exceptional importance” that unmistakably warrants this Court’s review.2 Pet. App. 279a (Rao, J., dissenting from denial

of reh’g en banc). By restricting the statutory nonimmigrant visa terms to entry only and allowing DHS to

permit employment on any visa, the court of appeals

decision fundamentally restructures the entire system

of nonimmigrant visas, Pet. App. 280a, and undermines the system of protections for American workers

Congress put in place. Pet. App. 282a. Using that interpretation, the court of appeals took Chevron deference into the realm of absurdity by excluding the

2 Counsel for Petitioner has been invited to testify before the

Senate Judiciary Committee twice on this case, further illustrating its importance.

15

governing statute from the analysis to manufacture

ambiguity where none exists. Ibid. The ultimate effect

of the court of appeals decision is that its application

of Chevron transforms the system of nonimmigrant visas from being a creation of Congress through statute

into a system of regulation defined by the bureaucracy. The court of appeals decision affects not only

this case but also the function of nonimmigrant visas

for the entire nation.

2. To reach its outcome, the D.C. Circuit decision

created a circuit split. Before the decisions in the

courts below, the federal courts had been unanimous

in interpreting the statutory requirements for nonimmigrant visas as applying to an alien’s entire authorized stay in the United States. By holding that nonimmigrant visa requirements only apply at entry and

that DHS is free to ignore those requirements once a

nonimmigrant enters the country, the court of appeals

created an 11–1 circuit split with all the numbered circuits. Pet. App. 280a (Rao, J., dissenting from denial

of reh’g en banc).

3. The court of appeals decision also conflicts with

precedent of this Court. Just last year, this Court, reversing a D.C. Circuit decision, reaffirmed in West Virginia v. Env’t Prot. Agency that it “‘expect[s] Congress

to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.’”

142 S. Ct. 2587, 2605 (2022) (quoting Utility Air Regulatory Group v. Env’t Prot. Agency, 573 U.S. 302, 324

(2014)). Yet just twelve weeks after this Court issued

its opinion, the same court of appeals held, once again,

that Congress had implicitly conferred vast authority

on an agency to create a major program. Pet. App. 4a.

16

The court of appeals decision also conflicts with additional precedent of this Court that consistently interprets the statutory terms of nonimmigrant visas as applying to an alien’s entire stay. E.g., Elkins v. Moreno,

435 U.S. 647, 666 (1978).

For these reasons, the decision of the court of appeals decision manifestly warrants this Court’s review.

I. The D.C. Circuit decision created a circuit

split on the scope of statutory nonimmigrant

visa terms.

1. The previous universal judicial understanding 3

of the nonimmigrant visa system was that (1) Congress defined visa statuses and their requirements in

terms of entry in section 1101(a)(15); (2) DHS implemented regulations setting the conditions of lawful entry (admission) for the visa categories pursuant to section 1184(a); and (3) maintaining lawful status in a

visa category required conforming to the terms of lawful entry—both statutory and regulatory, 8 U.S.C.

§§ 1184(a)(1), 1227(a)(1). E.g., Touray v. United States

AG, 546 F. App’x 907, 912 (11th Cir. 2013); Pet. App.

285a (Rao, J, dissenting from denial of reh’g). The decision below “turns [] that scheme on its head” by restricting the statutory visa terms to entry only. Pet.

App. 280a. Under the court of appeals decision,

(1) Congress defines entry criteria for visas; (2) after

entry, the statutory requirements no longer apply and

3 Ignoring for simplicity the special cases of unlawful entry and

entry without admission. See Sanchez v. Mayorkas, 141 S. Ct.

1809, 1814–15 (2021)

17

regulation alone dictates the conditions of an alien’s

stay. Pet. App. 56a–57a; Pet. App. 283a (Rao, J., dissenting from denial of reh’g en banc).

The D.C. Circuit decision thus creates a circuit split

on the scope of statutory nonimmigrant visa terms.

Pet. App. 279g (Rao, J., dissenting from denial of reh’g

en banc). From the enactment of the Immigration and

Nationality Act in 1952 until now there had been total

unanimity among this Court, the courts of appeals,

and the district courts that the student visa statute

requirements apply for an alien’s entire stay. 4 Pet.

App. 285a (Rao, J., dissenting from denial of reh’g en

banc); e.g., Toll v. Moreno, 458 U.S. 1, 14 n. 20 (1982);

Elkins v. Moreno, 435 U.S. 647, 665–66 (1978); Akbarin v. Immigr. & Naturalization Serv., 669 F.2d

839, 840 (1st Cir. 1982); Lok v. Immigr. & Naturalization Serv., 681 F.2d 107, 109 & n. 3 (2d Cir. 1982); Morel v. Immigr. & Naturalization Serv., 90 F.3d 833,

838 (3d Cir. 1996); United States v. Igbatayo, 764 F.2d

1039 (5th Cir. 1985); Khano v. Immigr. & Naturalization Serv., 999 F.2d 1203, 1207 & n. 2 (7th Cir. 1993);

Olaniyan v. Dist. Dir., Immigr. & Naturalization

Serv., 796 F.2d 373, 374 (10th Cir. 1986); Touray v.

United States AG, 546 F. App’x 907, 912 (11th Cir.

4 With the D.C. Circuit’s expansion of the entry-criteria-only

interpretation from student visas to nonimmigrant visas in general, the 7–1 split becomes an 11–1 split with all the numbered

circuits. E.g., Moreno v. Univ. of Md., 645 F.2d 217 (4th Cir.

1981), aff’d, 458 U.S. 1; Gazeli v. Session, 856 F.3d 1101, 1106

(6th Cir. 2017); Birdsong v. Holder, 641 F.3d 957, 958 (8th Cir.

2011); Von Kennel Gaudin v. Remis, 379 F.3d 631, 637 (9th Cir.

2004)

18

2013). In fact, the interpretation that the statutory

terms of nonimmigrant visas apply to an alien’s entire

stay had never before been a matter of dispute.

The only judicial interpretation the court of appeals

cited for this radical reinvention of the immigration

system is Rogers v. Larson, 563 F.2d 617, 622–23 (3d

Cir. 1977). Pet. App. 6a. In Rogers, the Third Circuit

observed that the one restriction in the specific H-2

visa provision (repealed in the Immigration Act of

1990) did not apply after the alien entered the country,

so it deferred to regulation after entry. Rogers at

563 F.2d at 622–23. Rogers did not hold that nonimmigrant visas in general only specified entry requirements. Pet. App. 285a n. 2 (Rao, J., dissenting from

denial of reh’g en banc). Furthermore, not even the

Third Circuit interprets nonimmigrant visa definitions as mere entry criteria. Instead, it applies the

statutory terms to an alien’s entire stay. E.g., Graham

v. Immigr. & Naturalization Serv., 998 F.2d 194, 196

(3d Cir. 1993), Jie Fang v. Dir. United States Immigr.& Customs Enf’t, 935 F.3d 172, 175 & n. 7 (3d

Cir. 2019); Xu Feng v. Univ. of Del., 833 F. App’x 970,

971 (3d Cir. 2021). The circuit split on this question

presented puts the immigration system in an incoherent state, Pet. App. 280a–281a. (Rao, J., dissenting

from denial of reh’g en banc), and thus should be resolved by this Court.

2. The decision below also creates tension with another circuit on the question of whether DHS possesses a general power over alien employment that

need not operate through the implementation or interpretation of specific statutes. In 2015, DHS began publishing a series of regulations authorizing alien

19

employment under the claim that the clause “or by the

Attorney General” in section 1324a(h)(3) (Pet. App.

289a) confers or recognizes the agency’s dual authority

with Congress to permit alien employment through

regulation. E.g., Pet. App. 83a, 314a. The Fifth Circuit

rejected the claim that section 1324a recognized vast

agency power to authorize alien employment. Texas v.

United States, 809 F.3d 134, 182–83 & n. 185 & n. 186

(5th Cir. 2015), aff’d by an equally divided court,

579 U.S. 547 (2016).

While litigation on DHS’s claim of dual authority

over alien employment continues to grow, neither its

source nor its scope has been firmly established. See

Pet. App. 84a, 87a (Henderson, J. dissenting). In Texas

v. United States, 809 F.3d 134 (5th Cir. 2015) (No. 1540238), the government argued before the Fifth Circuit that section 1324a(h)(3) was the source of its authority to grant employment to any class of aliens it

chooses. Br. for Appellants, ECF No. 00512986669 at

8–9; Reply Br. for Appellants, ECF No. 00513047024

at 13 & 22–23. When the case moved to this Court, the

government had a brand-new story: “[R]espondents focus on the wrong provision. Section 1324a(h)(3) did not

create the Secretary’s authority to authorize work;

that authority already existed in Section 1103(a). . . .”

Br. for the Pet’rs at 63, United States v. Texas,

579 U.S. 547 (2016) (No. 15-674).

The confusion over the source of authority repeats in

the D.C. Circuit decision but winds up at a different

provision. The 2016 OPT Rule itself asserts that section 1324a(h)(3) is the source of its authority to authorize alien employment. Pet. App. 314a. Following

DHS’s cue, Petitioner showed the court of appeals that

20

section 1324a(h)(3) could not confer such vast authority on DHS because that provision, a term definition

limited to its own section, had no intelligible principle

of how such employment power should be used. Pet.

App. 54a–55a. The court of appeals answered that argument by holding that “Washtech is right that section 1324a(h)(3) is not the source of the relevant regulatory authority.” Pet. App. 55a. Rather, section

1324a(h)(3) only “acknowledges” or “recognizes” that

DHS has dual authority with Congress to permit alien

employment. Pet. App. 51a, 54a–55a. The court of appeals decision identified a different provision—

8 U.S.C. § 1184(a)—as the source of authority for DHS

to permit employment. Pet. App. 51a; contra West Virginia v. Env’t Prot. Agency 142 S. Ct. 2587, 2610

(2022). Like section 1103(a), section 1184(a) does not

mention employment.

3. The breadth of DHS’s employment authority remains unclear also. See Pet. App. 87a (Henderson, J.

dissenting). This case addresses employment on a

nonimmigrant visa. Pet. App. 4a. The decision below,

however, holds that “section 1324a(h)(3) expressly

acknowledges that employment authorization need

not be specifically conferred by statute; it can also be

granted by regulation,” without limiting that power to

nonimmigrant visas. Pet. App. 55a; see also Pet. App.

83a. Indeed, DHS’s post-2015 regulations include

work authorizations for aliens other than nonimmigrants. For example, the International Entrepreneur

Rule created yet another alien employment program

under the claim that section 1324a(h)(3) recognizes

DHS has the authority to allow any class of alien to

work through regulation. 82 Fed. Reg. 5,238, 5,239

21

(Jan. 17, 2017). That rule allows aliens to enter the

United States without admission on parole (that is,

without a visa) and work. Ibid. While the difference in

the D.C. Circuit’s and the Fifth Circuit’s approaches

may not amount to a circuit split, those approaches

augur different results in cases challenging programs

in which DHS authorizes aliens to work pursuant to a

claimed general power to do so, rather than through

regulations implementing or interpreting a specific

statute.

II. The questions presented are exceptionally

important.

1. By limiting the statutory restrictions on nonimmigrant visas to entry, the court below has removed

any barrier to stop DHS from continuing to dismantle

the protections for American workers in the immigration system. Since the enactment of the Immigration

and Nationality Act in 1952, the administering agencies have permitted alien employment through regulations not authorized by Congress. American workers

have relied on the courts to restrain such administrative overreaches. E.g., Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir. 1985).

Prior to 2015, the claims of statutory authority for

such regulations were made and argued under the

terms of the statute for the visa at issue. E.g., Int’l Union of Bricklayers & Allied Craftsmen v. Meese,

616 F. Supp. 1387, 1398–99 (N.D. Cal. 1985); Int’l

Longshoremen’s & Warehousemen’s Union v. Meese,

891 F.2d 1374, 1380–84 (9th Cir. 1989). Under the

court of appeals decision, the statutory restrictions

22

that the courts had previously recognized as protecting American workers, no longer apply. Pet. App. 57a.

2. The D.C. Circuit’s fundamental restructuring of

the immigration system makes the questions presented ones “of exceptional importance.” Pet. App.

279a (Rao, J., dissenting from denial of reh’g en banc).

The decision claims to restrict the statutory terms of

nonimmigrant visas to “threshold entry criteria,” but

the decision actually nullifies the student and other

visa statutes. See Pet. App. 57a. Consider the simple

case of an alien admitted to the United States on a

nonimmigrant visa other than a student visa (such as

a B visitor visa). While in lawful status, that alien can

change status to a student visa. 8 U.S.C. §1258. Under

the court of appeals decision’s brand-new, thresholdentry-criteria-only interpretation, the student visa

statute never applies to the student visa in that situation because the alien entered on a different visa. The

decision below erases the distinctions among visas the

moment an alien enters the United States. Pet. App.

281a–282a (Rao, J. dissenting from denial of reh’g en

banc).

In the more general case, the entry-criteria-only interpretation of the student visa statute creates an unmistakable conflict. On one hand, if the student visa

statute’s terms actually functioned at entry, DHS

would deny entry (admission) to anyone seeking to

participate in OPT because of the student visa statute’s limitation to those solely pursuing a course of

study at an academic institution precludes work

or unemployment after graduation. 8 U.S.C.

§ 1101(a)(15)(F)(i). On the other hand, the courts below held it is within DHS’s authority to offer OPT even

23

though DHS is prohibited from admitting aliens who

seek to participate in OPT. Pet. App. 4a–5a. Clearly,

DHS does not even attempt to exclude aliens who seek

to participate in OPT because the agency uses OPT to

attract foreign students so they can supply labor to industry. Pet. App. 305a, 308a, 325a, 327a, 330a, 337a,

340a–341a, 356a, 392a, 406a, 460a, 495a, 561a, 590a,

594a, 596a, 616a, 703a, 707a, 716a. Under the holdings of the courts below, the requirements of the student visa statute are never applied. Calling the statutory visa terms mere “threshold entry criteria” is a façade for totally nullifying the statute. Pet. App. 57a.

The court of appeals decision’s application of Chevron illustrates how its statutory interpretation has the

effect of transferring all governing power over student

and other nonimmigrant visas from Congress to DHS.

Pet. App. 56a–57a. OPT should not survive a Chevron

step one analysis because “someone who legally entered the United States on a student visa, but stayed

in the country long past graduation” would not be in

“lawful status.” Sanchez v. Mayorkas, 141 S. Ct. 1809,

1813 (2021); 8 U.S.C. § 1101(a)(15)(F)(i); Pet. App.

283g (Rao, J., dissenting from denial of reh’g en banc).

The court of appeals did not even attempt to reconcile

the conflict between OPT and the student visa statute.

Pet. App. 57a. Instead, the majority applied its entrycriteria-only interpretation, leaving no statute governing student visa terms, and so the court skipped to

Chevron step two. Ibid. The decision below demonstrates that, under its entry-criteria-only interpretation, any challenge to DHS’s authority over student

and other nonimmigrant visas starts at Chevron step

two. Thus, the D.C. Circuit decision presents Chevron

24

deference running amok from two directions. On one

side, the decision treats Congress’s restrictions on the

agency at their minimum—to the point of complete

nullification. On the other side, the decision “grants

[DHS] virtually unchecked authority” from a provision

that does not even mention the power the agency

claims. Pet. App. 279a (Rao, J., dissenting from denial

of reh’g en banc). This form of Chevron application produces the absurdly overbroad interpretation that unemployed aliens who have not attended school in years

are called students. Cf. Pet. App. 73a (Henderson, J.,

dissenting).

Comparing precedent, one can see the path the court

below followed to take Chevron off the rails. N.Y. Stock

Exch. LLC v. SEC explains (using the authority the

decision cited, Pet. App. 26a) how the D.C. Circuit applies a “reasonably related” standard to an agency’s

empowering provision at Chevron step two after an

agency action has been found to be within its delegated authority at step one. 962 F.3d 541, 556 (D.C.

Cir. 2020). Here, the court below nullified the restrictions in the statute delegating the authority to

DHS to admit foreign students using its entry-criteriaonly holding. Pet. App. 56a–57a. Then it used the empowering provisions (sections 1103(a) and 1184(a)) to

determine both the scope of DHS’s delegated authority

and the reasonableness of its exercise of that delegated authority. Pet. App. 26a–27a.

3. The court of appeals decision has far-reaching

consequences for working Americans. The Immigration and Nationality Act created a comprehensive

scheme for protecting American workers. H.R. Rep.

No. 82-1365 at 50–51 (1952); S. Rep. No. 82-1137 at 11

25

(1952). Indeed, protecting American workers is a primary purpose of the immigration system. Immigr. &

Naturalization Serv., v. Nat’l Ctr. for Immigrants’

Rights, 502 U.S. 183, 194 (1991). The court of appeals

decision discards this system by allowing DHS to negate any protections Congress puts in place for American workers by permitting employment on any

nonimmigrant visa through regulation—as DHS purposefully did with OPT. Pet. App. 682a–685a; Pet.

App. 282g (Rao, J., dissenting from denial of reh’g en

banc). There is no distinction between a work visa and

a non-work visa when DHS can permit work on any

visa through regulation. Further demonstrating the

threat to American workers, the amorphous “reasonably related” standard immediately became anything

goes in practice. The H-4 visa permits dependents of H

guestworkers to “accompany[]” or “follow[] to join” the

principal alien. 8 U.S.C. § 1101(a)(15)(H). In Save

Jobs USA v. Dep’t of Homeland Sec., a regulation authorizing unrestricted employment on H-4 visas satisfied the “reasonably related” standard of Washtech IV

Appeal simply because DHS “explain[ed] why it had

decided to authorize employment for H-4 spouses.”

No. 15-CV-615, slip op. at 13 (D.D.C. Mar. 28, 2023).

4. Weighty constitutional issues flow from the decisions of the courts below. Is America a democracy

where major programs are created by a Congress that

has to answer to the people—or is America an aristocracy where lobbyists and bureaucrats create major

programs in secret over dinner parties? Pet. App.

747a–753a. While the courts below have facilitated

the latter form of government, this Court endorses the

former. “[T]he Constitution is neither silent nor

26

equivocal about who shall make laws which the President is to execute. The first section of the first article

says that ‘All legislative Powers herein granted shall

be vested in a Congress of the United States. . . .’”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

587–88 (1952). Furthermore, “[t]he lawmaking function . . . may not be conveyed to another branch or entity.” Loving v. United States, 517 U.S. 748, 758

(1996). The precedent of this Court stands in stark

contrast to the court of appeals decision that recognizes a system where both Congress and DHS can legislate to cross purposes in the same area so that DHS

can trump statutes through regulation. Cf. Pet. App.

282a (Rao, J., dissenting from denial of reh’g en banc).

The court of appeals opinion disregards the

longstanding prohibition against finding elephants in

mouseholes under the major questions doctrine. Whitman v. American Trucking Association, 531 U.S. 457,

468 (2001); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

142 S. Ct. 661, 665 (2022); Ala. Ass’n of Realtors v.

HHS, 141 S. Ct. 2485, 2489 (2021); Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 160 (2000). Just last year, this court reaffirmed

in West Virginia v. Env’t Prot. Agency that Congress

does not confer vast power on agencies implicitly

through ancillary provisions. 142 S. Ct. 2587, 2610

(2022). In such cases, the agency “must point to ‘clear

congressional authorization’ for the power it claims.”

Id. at 2609 (quoting Util. Air Regulatory Grp. v. Env’t

Prot. Agency, 573 U.S. 302, 324 (2014)). At issue here

is the largest alien employment program in the country, yet the court of appeals invoked a provision (section 1184(a)), that does not even mention employment,

27

as the source of authority for this program. Pet.

App. 55a. It is notable that the majority did not address West Virginia while the dissent did. Pet.

App. 86a.

The authority problems for OPT can also be viewed

from the perspective of the nondelegation doctrine.

That doctrine prohibits the delegation of power unless

“Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized

to exercise the delegated authority is directed to conform.’” Mistretta v. United States, 488 U.S. 361, 372

(1989) (emphasis added) (quoting J. W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 406 (1928)). The

court of appeals decision holds that “[a]s Congress itself has recognized, the Secretary’s statutory authority to set the ‘conditions’ of nonimmigrants’ stay in the

United States includes the power to authorize employment reasonably related to the nonimmigrant visa

class.” Pet. App. 4a (emphasis added). This holding

has two key interpretive flaws. First, the court of appeals decision invokes section 1184(a) as the source of

DHS’s independent authority to permit alien employment. Pet. App. 51a. That provision’s only apparent

intelligible principle is that DHS ought to “insure”

that a nonimmigrant “maintain[s] the status under

which he was admitted, or [] maintain[s] any status

subsequently acquired.” 8 U.S.C. § 1184(a)(1). Yet the

court of appeals decision holds that those statuses are

mere “threshold entry criteria” that do not apply after

entry. Pet. App. 57a. That leaves no statute to provide

an intelligible principle to guide any regulations (let

alone employment regulations) governing nonimmigrants pursuant to section 1184(a)(1) after aliens

28

enter the United States. Second, the only guiding principle on alien employment through regulation the

court of appeals decision recognizes is that it must be

“reasonably related to the nonimmigrant visa class.”

Pet. App. 4. That limitation, however, does not appear

anywhere in the Immigration and Nationality Act but

is entirely a judicially-created standard.

The court of appeals decision’s delegation to DHS of

authority to allow any reasonably-related employment

on a nonimmigrant visa in turn raises yet another constitutional issue. Previously, “an agency literally has

no power to act . . . unless and until Congress confers

power upon it.” City of Arlington v. Fed. Commc’n

Comm’n, 569 U.S. 290, 317 (2013) (quoting La. Pub.

Serv. Comm’n v. Fed. Commc’n Comm’n, 476 U.S. 355,

374 (1986) (emphasis added). Nonetheless, here it was

the judiciary branch—not Congress—that conferred

on DHS the power to permit alien employment

through regulation with the restriction that such employment must be “reasonably related” to the visa

class. Pet. App. 4a.

The questions presented here “are weighty and have

important consequences.” Pet. App. 286a (Rao, J., dissenting from denial of reh’g en banc). Members of this

Court have raised concerns over whether Chevron deference violates the separation of powers. See, e.g., City

of Arlington v. Fed. Commc’n Comm’n, 569 U.S. 290,

312–28 (2013) (Roberts, C.J., dissenting); Cuozzo

Speed Techs., LLC v. Lee, 579 U.S. 261, 286 (2016)

(Thomas, J., concurring); Buffington v. McDonough,

143 S. Ct. 14 (2022) (Gorsuch, J., dissenting from denial of certiorari). The indiscriminate application of

Chevron here, where the courts below nullified the

29

governing statute to manufacture ambiguity where

none exists, and the complete disregard of this Court’s

recent guidance in West Virginia, should elevate those

concerns to alarms. The court of appeals decision’s creation of shared legislative power between Congress

and DHS, where both can define classes of aliens eligible for employment to cross purposes, can only be

viewed as a momentous violation of the constitutional

separation of powers.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JOHN M. MIANO

Counsel of Record

CHRISTOPHER J. HAJEC

Immigration Reform

Law Institute

25 Massachusetts Ave. NW

Suite 335

Washington, DC 20001

202-232-5590

jmiano@verizon.net

Counsel for Petitioner

May 2023