Amicus Curiae Brief — Washington Alliance of Technology Workers, Petitioner v. Department of Homeland Security, et al.

No. 22-1071

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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

---------------------------------♦--------------------------------BRIEF OF ATLANTIC LEGAL FOUNDATION AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

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i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF THE AMICUS CURIAE .................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

The Court Should Decide Whether the Immigration

and Nationality Act Vests DHS With Independent

Authority To Determine How Long, and Under What

Conditions, Nonimmigrant Aliens Can Work

Or Stay In The United States………………………….5

A. Sharply conflicting interpretations of the INA

necessitate this Court’s review…………………….5

B. This is a “major questions” case …………………16

C. The statutory interpretation issue is

important……………………………………………..20

CONCLUSION…………………………………………..24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Chevron U.S.A. v. Nat. Res. Def. Council,

467 U.S. 837 (1984) ............................................ 8, 9

Elkins v. Moreno,

435 U.S. 647 (1978) .............................. 5, 14, 15, 16

Graham v. INS, 998 F.2d 194 (3d Cir. 1993). .......... 16

Khano v. INS,

999 F.2d 1203 (7th Cir. 1993) .............................. 15

Rogers v. Larson,

563 F.2d 617 (3d Cir. 1977).................................. 15

Save Jobs USA v. DHS,

2023 WL 2663005 (D.D.C. Mar. 28, 2023) .......... 16

Toll v. Moreno,

458 U.S. 1 (1982) .................................................. 15

Wash. All. of Tech. Workers v. DHS,

892 F.3d 332 (D.C. Cir. 2018) .............................. 18

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .................................... 17, 19

iii

Statutes & Regulations

8 U.S.C. § 1101(a)(3) .................................................... 5

8 U.S.C. § 1101(a)(13)(A) .......................................... .13

8 U.S.C. § 1101(a)(15) ......................... .5, 13, 14, 15, 16

8 U.S.C. §§ 1101(a)(15)(A)–(V) ................................ 4, 5

8 U.S.C. § 1101(a)(15)(F). .................................... 15, 19

8 U.S.C. § 1101(a)(15)(F)(i). ...................... 4, 6, 8, 9, 15

8 U.S.C. § 1101(a)(15)(H)(i)(b) .................................. 10

8 U.S.C. § 1184(a)(1) .............................. 4, 7, 13, 15, 19

8 U.S.C. § 1184(g)(1)(A)(vii) ...................................... 20

8 U.S.C. § 1227(a)(1)(C)(ii) ........................................ 14

8 U.S.C. § 1324a ....................................................... .11

8 U.S.C. § 1324a(h)(3) ............................................... 11

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

Other Authorities

73 Fed. Reg. 18,944 (Apr. 8, 2008) ............................ 22

81 Fed. Reg. 13,040 (Mar. 11, 2016) ........... 3, 7, 18, 22

iv

Darren Mayberry, The F-1/H-1B Visa Contradiction:

Uncle Sam Wants Your Tuition, but Not Your

Expertise or Your Tax Dollars, 38 J.L. & Educ. 335

(2009)……………………………………………………...21

David J. Bier, Cato Inst., The Facts about Optional

Practical Training (OPT) for Foreign Students

(May 20, 2020) ..................................................... .21

DHS, F-1 Optional Practical Training (OPT) ............ .3

Sean Ashoff, F-1 Student Visas and the Student Debt

Crisis, 39 J.L. & Com. 95, 98 (2020) .................... 22

U.S. Dep’t of Labor, Wage & Hour Div.,

H-1B Program ..................................................... .20

U.S. Dep’t of State, Report of the Visa Office 2022,

Table 1, ................................................................. 22

1

INTEREST OF THE AMICUS CURIAE 1

Established in 1977, the Atlantic Legal Foundation

(ALF) is a national, nonprofit, nonpartisan, public

interest law firm whose mission is to advance the rule

of law and civil justice by advocating for individual

liberty, free enterprise, property rights, limited and

responsible government, sound science in judicial and

regulatory proceedings, and effective education,

including parental rights and school choice. With the

benefit of guidance from the distinguished legal

scholars, corporate legal officers, private practitioners,

business executives, and prominent scientists who

serve on its Board of Directors and Advisory Council,

ALF pursues its mission by participating as amicus

curiae in carefully selected appeals before the

Supreme Court, federal courts of appeals, and state

supreme courts. See atlanticlegal.org.

***

As a long-time advocate for free enterprise,

effective education, and sound science, ALF recognizes

the real-world significance of the statutory

interpretation issue presented by this case—whether

the Immigration and Nationality Act (INA) authorizes

the Department of Homeland Security (DHS) to create

and operate a “Post-Completion” Optional Practical

Training (“OPT”) program that allows holders of “F-1”

All parties’ counsel have been provided the advance notice

required by Supreme Court Rule 37.2(a). No counsel for a party

authored this brief in whole or part, and no party or counsel other

than the amicus curiae, its counsel, and its supporters made a

monetary contribution intended to fund preparation or

submission of this brief.

1

2

nonimmigrant student visas to stay and work in the

United States (currently up to 3 years) after receiving

a university-level Science, Technology, Engineering,

or Mathematics (“STEM”) degree. Although ALF

takes no position on the merits, we urge the Court to

address this important question. Its resolution will

directly affect, one way or another, the size,

composition, and permanence of the nation’s crucial,

high-technology workforce, and thus, the national,

and even global, economy.

Given the intense,

technology-related competition that the United States

continuously faces from foreign adversaries, robust

employment in the technology sector also is a matter

of long-term national security.

The D.C. Circuit’s 2 to 1 holding that the INA vests

DHS with almost unlimited authority to decide how

long, and under what conditions, millions of

nonimmigrant aliens of all types can “temporarily”

live and work in the United States has far-reaching

economic, social, and other domestic and foreign policy

implications even beyond the STEM OPT program at

issue here. As a steadfast advocate for limited and

responsible government, and for adherence to the

separation of powers, ALF believes that the question

of whether Congress has delegated such sweeping

regulatory power to DHS warrants this Court’s

scrutiny through the lens of the major questions

doctrine.

3

SUMMARY OF ARGUMENT

This long-running litigation brought by Petitioner

Washington Alliance of Technology Workers

(commonly referred to as “Washtech”) challenges

DHS’s authority to establish, by regulation, the

ongoing, Post-Completion OPT program for F-1 STEM

students. See 8 C.F.R. § 214.2(f)(10)(ii) (“Optional

practical training”); 81 Fed. Reg. 13,040 (Mar. 11,

2016); DHS, F-1 Optional Practical Training (OPT).2

Under this DHS-created guest worker program and its

2016 “STEM extension,” F-1 student visa holders can

stay and work in the United States up to 3 years after

receiving their degrees. See 81 Fed. Reg. at 13,087

(“The 24-month extension, when combined with the 12

months of initial post-completion OPT, allows

qualifying STEM students up to 36 months of practical

training.”).

The validity of Post-Completion STEM OPT is

vitally important not only because this DHS

regulatory program benefits a multitude of F-1

students and their U.S. employers, but also because it

significantly increases the competition for technology

sector employment between highly educated

American professionals and nonimmigrant aliens.

The D.C. Circuit’s majority opinion, authored by

Circuit Judge Pillard, categorically construes the

INA’s detailed statutory definitions of numerous

classes of nonimmigrant aliens, including but not

limited to F-1 students, as merely establishing

requirements for entering the United States.

2 https://tinyurl.com/2z7hjzuk (last updated July 21, 2022).

4

See 8 U.S.C. §§ 1101(a)(15)(A)–(V). The majority

opinion contends that a different INA provision, 8

U.S.C. § 1184(a)(1), vests DHS with broad authority to

promulgate regulations setting the “time” that F-1

students and other classes of nonimmigrant aliens can

stay in the United States, and the “conditions” under

which they may work during their stays.

But D.C. Circuit Judge Henderson’s dissenting

panel opinion, and D.C. Circuit Judge Rao’s dissent

from denial of rehearing en banc, present a starkly

different statutory interpretation. In their view, the

INA’s

definitions

of

various

categories

of

nonimmigrant aliens are not merely entry

requirements, but also establish the conditions under

which they can stay, and possibly work, in the United

States. The dissenting judges argue that the statutory

conditions governing F-1 students, 8 U.S.C.

§ 1101(a)(15)(F)(i), do not authorize them to work in

the United States after completing their course of

study. They further contend, contrary to the majority

opinion, that § 1184(a)(1) does not vest DHS with

regulatory authority independent of § 1101(a)(15).

This Court’s review is needed given the broad

practical importance of the question presented, the

breadth and potential ramifications of the majority

opinion’s interpretation of the INA nonimmigrant

alien provisions, the dissenting judges’ contrary views,

and the major policy-related decisions underlying the

STEM OPT program. Indeed, this is a “major

questions” case. The majority opinion’s seeming

inconsistency with this Court’s INA precedents, and

the circuit split that the majority opinion has created,

5

are additional compelling reasons why the Court

should grant certiorari.

ARGUMENT

The Court Should Decide Whether the

Immigration and Nationality Act Vests DHS

With Independent Authority To Determine How

Long,

and

Under

What

Conditions,

Nonimmigrant Aliens Can Work Or Stay In The

United States

A. Sharply conflicting interpretations of the

INA necessitate this Court’s review

There is no dispute that the INA establishes

separate requirements for entry of numerous classes

of nonimmigrant aliens into the United States. See 8

U.S.C. §§ 1101(a)(15)(A)–(V); 3 Elkins v. Moreno, 435

U.S. 647, 665 (1978) (“Although nonimmigrant aliens

can generally be viewed as temporary visitors to the

United States, the nonimmigrant classification is by

no means homogeneous with respect to the terms on

which a nonimmigrant enters the United States.”).

For example, an “F-1” nonimmigrant student visa

can be issued to “an alien having a residence in a

foreign country which he has no intention of

abandoning, who is a bona fide student qualified to

pursue a full course of study and who seeks to enter

3 An “alien” is “any person not a citizen or national of the United

States.” 8 U.S.C. § 1101(a)(3). An “immigrant” is “every alien

except an alien who is within one of [the] classes of nonimmigrant

aliens” defined in § 1101(a)(15). Id. § 1101(a)(15).

6

the United States temporarily and solely for the

purpose of pursuing such a course of study . . . at an

established college [or] university.” 8 U.S.C.

§ 1101(a)(15)(F)(i).

The issue here is whether the INA’s detailed

definitions of various classes of nonimmigrant

aliens—including F-1 students—merely establish

requirements for entry, or whether they also govern

the length of stay for nonimmigrants and the

conditions under which they may work, if at all, while

in the United States. The F-1 category, which

expressly refers to nonimmigrant alien students who

seek to enter the United States “solely” for the purpose

of studying at an academic institution, says nothing

about such students staying to work here after they

receive their undergraduate or graduate degrees. Id.

The D.C. Circuit panel majority’s opinion that DHS

has broad “post-entry” regulatory authority over F-1

students and other categories of nonimmigrant aliens,

coupled with two D.C. Circuit judges’ emphatic

dissenting opinions—Judge Henderson’s dissenting

panel opinion, Pet. App. 60a-87a, and Judge Rao’s

dissent (joined by Judge Henderson) from denial of

rehearing en banc, id. 279a-286a—provide ample

reason for this Court to grant certiorari. The need for

review is underscored by the majority opinion’s

seeming conflict with long-standing Supreme Court

precedent, and the split of authority that the majority

opinion creates with other circuits concerning the

scope of DHS regulatory authority over nonimmigrant

aliens.

7

1. The panel majority held that § 1101(a)(15)

merely “identifies entry conditions” for nonimmigrant

aliens, and that a different INA provision, 8 U.S.C.

§ 1184(a)(1), vests DHA with authority “to set the

‘time’ and ‘conditions’ of nonimmigrants’ stay in the

United States,” including the “power to authorize

employment.”

Pet. App. 2a, 6a, 51a.

Section

1184(a)(1) states in pertinent part that “[t]he

admission to the United States of any alien as a

nonimmigrant shall be for such time and under such

conditions as [DHS] may by regulations prescribe.”

According to the majority opinion, “Section

1184(a)(1)’s time-and-conditions provision is the

source” of DHS authority for the “2016 Rule” that

established the current Post-Completion STEM OPT

program for F-1 students. Id. 23a; see 81 Fed. Reg.

13,040.

The majority opinion rejects Petitioner Washtech’s

argument

that the statutory definition of the F-1 visa

class precludes the Secretary [of DHS]

from exercising the time-and-conditions

authority to allow F-1 students to remain

for school-recommended practical training

after they complete their coursework. . . .

[T]hat argument wrongly assumes that,

beyond setting terms of entry, the visa

definition itself precisely demarcates the

time and conditions of the students’ stay

once they have entered. Congress gave

that control to the Executive. The F-1

definition tethers the Executive’s exercise

8

of that control, but by its plain terms does

not exhaustively delimit it.

Pet. App. 3a.

In the majority’s view, “the INA thus defines

categories of visa eligibility and empowers the

Secretary [of DHS], guided by those visa categories, to

regulate how long and under what conditions

nonimmigrants may stay in the country.” Id. 7a.

According to the majority, “Washtech misreads F-1 to

exhaustively delineate rather than inform and

constrain the authority Congress separately conferred

on the Executive to set the time and conditions of

nonimmigrants’ admission.” Id. 40a. “Because the

2016 Rule regulates the ‘time’ and ‘conditions’ of

admission for F-1 visa-holders, and because it is

reasonably related to the distinct composition and

purpose of that visa class, as defined in the F-1

provision, the Secretary had authority to promulgate

it.” Id. 23a.

The majority opinion also asserts that even if the

INA is ambiguous as to the scope of DHS authority

over nonimmigrant aliens after they enter the United

States, “the statute may reasonably be understood as

the Department has read it to support the 2016 Rule.

. . . That interpretation thus merits . . . deference.”

Id. 55a (citing Chevron U.S.A. v. Nat. Res. Def.

Council, 467 U.S. 837 (1984)).

2. Judge Henderson’s dissent from the panel

opinion focuses on “the F-1 statute,” 8 U.S.C.

§ 1101(a)(15)(F)(i), “because the district court relied

entirely on that provision to grant summary judgment

9

to the government.” Id. 60a; see also id. 68a n.6

(Henderson, J., concurring in part and dissenting in

part). 4

Her dissent parses the language of

§ 1101(a)(15)(F)(i) and concludes that it “plainly does

not delegate the asserted authority” to DHS. Id.

According to Judge Henderson, “[b]ecause the F-1

statute is plainly not an entry-only requirement, its

constraints on nonimmigrant F-1 status are ongoing,

making the DHS’ 2016 OPT rule ‘in excess of [its] . . .

statutory authority.’” Id. 81a (quoting 5 U.S.C.

§ 706(2)(C)).

Applying the first step of the Chevron analytical

framework, Judge Henderson’s dissenting opinion

contends that “[b]ecause the plain language of the F-1

statute is unambiguous, the inquiry should begin with

the statutory text, and end there as well.” Id. 69a-70a

(cleaned up). Her opinion asserts that “[t]o support its

entry-only-requirement interpretation, the DHS

primarily relies . . . on absurdly overbroad

interpretations of ‘student’ and ‘course of study’”—

terms

used

but

not

defined

in

§ 1101(a)(15)(F)(i). Id. 73a. Pointing to the F-1

provision’s text—which refers to “a bona fide student”

and “requires an F-1 visa holder to be, inter alia, ‘an

alien who seeks to enter the United States temporarily

and solely for the purpose of pursuing such a course of

study,’” id. (emphasis added by Judge Henderson)—

the dissenting opinion states that

4 Judge Henderson agreed with the panel majority only on

Petitioner’s standing to sue. See Pet. App. 60a.

10

[i]n view of the language itself, the specific

context in which that language is used,

and the broader context of the statute as a

whole . . . “student” and “course of study”

cannot reasonably be read to include postcompletion OPT.

Id. 74a. Similarly, the dissenting opinion argues that

interpreting the F-1 provision’s phrase “‘seeks to

enter’ as an entry-only requirement effectively

removes any statutory constraint on the DHS’s

authority after admission.” Id. 78a.

Judge Henderson’s dissent also observes that

the DHS interpretation has led to postcompletion OPT rivaling the H-1B visa as

the largest highly skilled guest worker

program. Indeed, in 2016, the year in

which the DHS authorized the twentyfour-month STEM extension, postcompletion OPT surpassed the H-1B visa

program as the greatest source of highly

skilled guest workers. This makes the

DHS interpretation even more unlikely

given the long history of statutory caps on

the number of H-1B visas.

Id. 79a (citation omitted); see 8 U.S.C.

§ 1101(a)(15)(H)(i)(b) (referring to “an alien . . . who

11

is coming temporarily to the United States to perform

services . . . in a specialty occupation”). 5

3. Judge Rao’s dissent from denial of rehearing en

banc argues that “the panel’s interpretation of the

F-1 student visa provision cannot be reconciled with

the text and structure” of the INA. Pet. App. 279a.

According to Judge Rao,

[t]he panel opinion turns Congress’s

carefully calibrated scheme on its head.

The INA enumerates 22 categories of

“nonimmigrants” who may be eligible for

visas to come to the country temporarily,

with many categories further divided into

specific subcategories.

See 8 U.S.C.

§§ 1101(a)(15)(A)–(V). The nonimmigrant

categories are precisely delineated,

5 Although Judge Henderson concluded that her interpretation of

the F-1 provision necessitates “reversal of the district court,” Pet.

App. 69a, she would have remanded for further consideration of

whether 8 U.S.C. § 1324a(h)(3) vests DHS with “independent

authority to authorize the employment of any alien.”

Id. 82a. Section 1324a (Unlawful employment of aliens) makes

it unlawful to knowingly hire an “unauthorized alien.”

Subsection (h)(3) of § 1324a defines “unauthorized alien” as an

alien who is not “lawfully permitted for permanent residence” or

“authorized to be so employed by this chapter or [DHS].”

According to the majority opinion, this definition’s “express

recognition that aliens ‘may be authorized to be . . . employed . . .

by’ DHS confirms that Congress has deliberately granted the

Executive power to authorize employment.” Pet. App. 54a. “[I]n

assessing section 1324a(h)(3) authority,” Judge Henderson

“would instruct the district court to decide whether F-1 status is

severable from the post-completion OPT program.” Id. 84a.

12

reflecting Congress’s judgments as to

which aliens may be admitted into the

country and for what reason.

***

These provisions exemplify Congress’s

detailed attention to the very specific

conditions

that

attach

to

each

nonimmigrant visa.

Nonetheless, the

panel

concludes

such

statutory

requirements apply only at the moment of

entry. . . . Although Congress has set out

the conditions for entry, the panel draws

the surprising conclusion that DHS may

prescribe different criteria for staying in

the United States.

Under the majority’s approach, DHS is

left with wide discretion to determine

which aliens may remain in the country

even after the grounds for their visa have

lapsed. The only constraint identified by

the panel is that an extended stay must be

“reasonably related” to the particular visa

category.

Id. 280a-281a; see also id. 281a-282a (“Glossing over

Congress’s delineation of dozens of discrete categories,

the majority’s interpretation effectively erases the

INA’s very specific requirements the moment an alien

enters the United States.”).

Citing Judge Henderson’s panel dissent, Judge Rao

argues that “there is not even a plausible textual basis

for DHS to allow student visa holders to remain in the

13

country and work long after their student status has

lapsed.” Id. 283a. She contends that “the majority’s

argument to the contrary rests on a fundamental

misreading of the statute.” Id.

Judge Rao contends that the INA provision that

the majority identifies as DHS’s source of authority for

creation of the Post-Completion STEM OPT program,

8 U.S.C. § 1184(a)(1), “is not about post-arrival

requirements” and “does not provide authority for

DHS to allow F-1 visa holders to stay and work in the

United States for years after they are no longer

students.” Id. 283a, 284a. In her opinion “DHS’s

regulatory authority to set time and conditions applies

only to ‘admission.’” Id. at 283a (quoting § 1184(a)(1)).

“If there were any doubt about the plain meaning of

the term, ‘admission’ is explicitly defined as ‘the lawful

entry of the alien into the United States.’” Id. (quoting

8 U.S.C. § 1101(a)(13)(A) (emphasis added by Judge

Rao)). Judge Rao asserts “[i]t is therefore quite clear

that section 1184(a)(1) allows DHS to prescribe

regulations that govern aliens’ entry into the country,

but does not provide independent authority for

expanding

‘post-arrival’

stays

and

work

authorization.” Id.

4. The majority opinion appears to be the only

appellate decision holding that although § 1101(a)(15)

establishes specific statutory requirements for

temporary admission of various classes of

nonimmigrant aliens, § 1184(a)(1), a general

provision, authorizes DHS to determine, by

regulation, the “time” and “conditions” governing

nonimmigrants’ work and/or stay after they enter the

14

United States. According to the panel majority,

§ 1101(a)(15) merely provides a “tether” or “guide” for

exercise of DHS’s post-entry regulatory authority.

Pet. App. 3a, 25a.

Judge Rao’s dissent from denial of rehearing en

banc argues that the majority opinion’s “surprising”

bifurcation of the INA—i.e., Congress’ detailed

statutory criteria governing nonimmigrant aliens’

entry into the United States, but a general grant of

authority allowing DHS to promulgate additional or

different criteria governing nonimmigrants’ stay (and

possibly work) in the United States—conflicts with a

well-established body of case law. See Pet. App. 285a

(“[T]he 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.”) (collecting

cases); see also Pet. at 16-18.

For example, in Elkins v. Moreno, 435 U.S. at 666,

this Court explained that a nonimmigrant alien “who

does not maintain the conditions attached to his status

can be deported” (emphasis added); see 8 U.S.C.

§ 1227(a)(1)(C)(ii) (Nonimmigrant status violators)

(“Any alien who was admitted as a nonimmigrant and

who has failed to maintain the nonimmigrant status

in which the alien was admitted . . . or to comply with

the conditions of any such status, is deportable.”)

(emphasis added).

The Court observed in Elkins that for some

categories

of

nonimmigrant

aliens—including

specifically F-1 students—one such condition, derived

directly from certain subsections of § 1101(a)(15), is

15

that they have “no intention of abandoning” their own

country. 435 U.S. at 665 (quoting § 1101(a)(15)(F)(i)).

In other words, “if their real purpose in coming to the

United States was to immigrate permanently,” they

can be deported. Id. The Court thus confirmed that

the statutory conditions set forth in § 1101(a)(15) for

admission of nonimmigrant aliens, including for F-1

students, continue to “attach” after they enter the

United States. See also Toll v. Moreno, 458 U.S. 1, 14

(1982) (“For many of these nonimmigrant categories,

Congress has precluded the covered alien from

establishing domicile in the United States.”) (citing

§ 1101(a)(15)(F)); Khano v. INS, 999 F.2d 1203, 1207

(7th Cir. 1993) (“Once the INS determined that the

[F-1 student] failed to maintain his status as a fulltime student — the condition attached to his

nonimmigrant status — it instituted deportation

proceedings before the immigration judge.”) (citing

Elkins, 435 U.S. at 665); id. at 1207 n.2 (quoting

§ 1101(a)(15)(F)(i)).

Section 1184(a)(1) itself

authorizes DHS to require “the giving of a bond with

sufficient surety . . . to insure that . . . upon failure to

maintain the status upon which [the nonimmigrant

alien] was admitted . . . such alien will depart from the

United States” (emphasis added).

Contrary to the foregoing authority, and quoting

Rogers v. Larson, 563 F.2d 617, 622-23 (3d Cir. 1977),

a pre-Elkins decision, the majority opinion states that

“F-1 identifies entry conditions but ‘is silent as to any

controls to which these aliens will be subject after they

arrive in this country.’” Pet. App. 6a. Judge Rao’s

dissent notes, however, that the Rogers “opinion

16

nowhere stated the nonimmigrant requirements apply

only at entry,” and that “the Third Circuit has

subsequently interpreted a nonimmigrant visa

provision as imposing ongoing conditions during an

alien’s presence in the United States.” Pet. App. 284a285a n.2 (citing Graham v. INS, 998 F.2d 194, 196 (3d

Cir. 1993)).

Judge Rao’s dissent correctly predicted that the

majority opinion’s “capacious standard” under which

“aliens may remain in the country even after the

grounds for their visas have lapsed . . . could distort

other nonimmigrant categories.” Id. 281a; see Save

Jobs USA v. DHS, 2023 WL 2663005 at *2, *3 (D.D.C.

Mar. 28, 2023) (rejecting plaintiff’s contention that

“that Congress has never granted DHS authority to

allow foreign nationals, like H-4 visa-holders, to work

during their stay in the United States . . . The D.C.

Circuit’s holding and reasoning in Washtech apply

with equal force in this case.”).

The Court’s intercession is needed both to decide

whether the majority opinion can be reconciled with

Elkins and its progeny, and to address the inter-circuit

conflict that the majority opinion has created on the

fundamental question of whether the nonimmigrant

admission conditions expressly set forth in

§ 1101(a)(15) continue to apply following entry into the

United States.

B. This is a “major questions” case

The major questions doctrine “refers to an

identifiable body of law that has developed over a

series of significant cases all addressing a particular

17

and recurring problem: agencies asserting highly

consequential power beyond what Congress could

reasonably be understood to have granted.”

West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).

Under the major questions doctrine, the Court

presume[s] that Congress intends to make

major policy decisions itself, not leave

those decisions to agencies. . . . Thus, in

certain

extraordinary

cases,

both

separation of powers principles and a

practical understanding of legislative

intent make [the Court] reluctant to read

into ambiguous statutory text the

delegation claimed to be lurking there. To

convince [the Court] otherwise, something

more than a merely plausible textual basis

for the agency action is necessary. The

agency instead must point to clear

congressional authorization for the power

it claims.

Id. (internal quotation marks and citations omitted).

The Post-Completion OPT program, especially the

“STEM extension” work authorization for F-1 student

visa holders, reflects a constellation of major policy

decisions made by DHS, not Congress. According to

the majority opinion, which nowhere cites West

Virginia v. EPA, “OPT continues the Executive’s

longstanding policy of authorizing visiting students to

work here in their field, under the auspices of their

school, for a limited period to cement their classroom

learning and ensure they can use that knowledge

effectively at work when they return to their home

18

countries.” Pet. App. 11a-12a. Further, DHS asserts

that the STEM OPT program “will also benefit the

U.S. educational system, U.S. employers, and the U.S.

economy.” 81 Fed. Reg. at 13,043. More specifically,

DHS contends that the program

will benefit the U.S. educational system by

helping to ensure that the nation’s colleges

and

universities

remain

globally

competitive in attracting international

students in STEM fields. U.S. employers

will benefit from the increased ability to

rely on skilled U.S.-educated STEM OPT

students, as well as their knowledge of

markets in their home countries. The

nation also will benefit from the increased

retention of such students in the United

States, including through including

through increased research, innovation,

and other forms of productivity that

enhance the nation’s economic, scientific,

and technological competitiveness.

Id.

But there also are important countervailing policy

considerations. For example, in its discussion of

Petitioner’s standing, the majority opinion holds that

Washtech’s members “are direct and current

competitors with OPT participants,” that they have

suffered “cognizable injury” in the form of “exposure

to increased competition in the STEM labor market,”

and that this injury is “traceable to the practical

training rule.” Id. 21a, 22a; see also Wash. All. of

Tech. Workers v. DHS, 892 F.3d 332, 341 (D.C. Cir.

19

2018) (“The increase in competition is directly

traceable to the DHS because the DHS’s regulations

authorize work for the OPT participants with whom

Washtech members compete for jobs.”)

Citing West Virginia v. EPA, Judge Rao’s dissent

argues that “[t]he INA’s provisions for work visas

reflect political judgments balancing the competing

interests of employers and American workers. Such

detailed legislation is incompatible with assuming a

broad delegation to DHS to confer additional work

visas through regulation.” Id. 282a.

Judge Rao’s dissenting opinion explains that under

the major questions doctrine, “‘extraordinary grants of

regulatory authority’ require not ‘a merely plausible

textual basis for the agency action’ but ‘clear

congressional authorization.’” Id. 282a-283a (quoting

West Virginia, 142 S. Ct. at 2609). Although the

majority opinion points primarily to § 1184(a)(1) as

the source of DHS authority for promulgation of the

STEM OPT program, id. 23a, Judge Rao does not find

“even a plausible textual basis” for the program. Id.

283a; see also id. 69a-87a (Judge Henderson’s detailed

textual analysis of § 1101(a)(15)(F)).

Judge

Henderson agrees that this “may be a major question”

case. Id. 81a n.11; see also id. 86a-87a (“[L]ike the

EPA’s asserted authority in West Virginia . . . the limit

of DHS’s asserted authority is unclear.”).

In view of the heavily utilized, policy-driven, STEM

OPT guest worker program at issue, and the lack of a

specific INA provision clearly authorizing F-1

students to work in the United States after receiving

their degrees, the potential role of the major questions

20

doctrine in addressing the program’s validity is

another significant reason why the Court should grant

review. If the Court were to hold, in accordance with

the major questions doctrine and the separation of

powers, that the Post-Completion STEM OPT

program embodies major policy decisions that

Congress would not (or should not) have intended to

delegate to DHS, Congress has the power to amend the

INA and explicitly authorize post-completion STEM

OPT.

C. The statutory interpretation issue is

important

The validity of the Post-Completion STEM OPT

program is enormously important to the tens of

thousands of F-1 students who seek to work in the

United States after receiving their degrees, to

the many U.S. technology-sector employers who

depend on their availability, and to the highly

educated American professionals who compete

against them for STEM-related employment.

It is important to understand that the number of

nonimmigrant aliens holding H-1B “specialty

occupation” visas is capped “to protect similarly

employed U.S. workers from being adversely affected

by the employment of the nonimmigrant workers.”

U.S. Dep’t of Labor, Wage & Hour Div.,

H-1B Program; 6 see 8 U.S.C. § 1184(g)(1)(A)(vii)

(capping issuance of H-1B visas at 65,000 per fiscal

6 https://www.dol.gov/agencies/whd/immigration/h1b (last visited

Apr. 26, 2023).

21

year). But there is no such statutory (or regulatory)

cap for F-1 student visa holders working in the United

States under the Post-Completion STEM OPT

program. For example, during the 2019 fiscal year,

DHS issued almost 70,000 post-graduate STEM OPT

employment authorizations, mostly for nonimmigrant

aliens from India and China. See David J. Bier, Cato

Inst., The Facts about Optional Practical Training

(OPT) for Foreign Students (May 20, 2020). 7

As noted above, Judge Henderson’s panel dissent

observes that “the DHS interpretation has led to postcompletion OPT rivaling the H-1B visa as the largest

highly skilled guest worker program.” Pet. App. 79a.

And Judge Rao’s dissenting opinion argues that

“[a]lowing F-1 students to work does an end run

around numerical limits for skilled workers.” Id.

282a; see also Darren Mayberry, The F-1/H-1B Visa

Contradiction: Uncle Sam Wants Your Tuition, but

Not Your Expertise or Your Tax Dollars, 38 J.L. &

Educ. 335, 339 (2009) (“STEM F-1 visa holders are

permitted to be employed, ostensibly for practical

training but actually as de facto employees . . . .”).

Further, although the Post-Completion STEM

OPT program is limited to 3 years, it is a source of

permanent employment in the United States for many

F-1 student visa holders. “The F-1 category . . . is a

vehicle by which many international students enter

the United States, earn an education, find

employment in the United States, and eventually

7 Available at https://www.cato.org/blog/facts-about-optionalpractical-training-opt-foreign-students.

22

immigrate to the United States permanently.” Sean

Ashoff, F-1 Student Visas and the Student Debt Crisis,

39 J.L. & Com. 95, 98 (2020). DHS noted when

promulgating the original OPT STEM extension that

“[m]any employers who hire F-1 students under the

OPT program eventually file a petition on the

students’ behalf for classification as an H–1B worker

in a specialty occupation.” 73 Fed. Reg. 18,944, 18,946

(Apr. 8, 2008). The 2016 Rule includes a “Cap-Gap

extension provision, under which DHS temporarily

extends an F-1 student’s duration of status and any

current employment authorization if the student is

the beneficiary of a timely filed H-lB petition and

change-of-status request pending with or approved by

[DHS].” 81 Fed. Reg. at 13,042.

The question presented has even broader

significance because, as Judge Rao’s dissent

emphasizes, the D.C. Circuit’s majority opinion

“explicitly recognizes that it applies to all

nonimmigrant categories.” Id. 280a. The majority

opinion asserts, for example, that “[l]ike other visa

classes defined in section 1101(a)(15), F-1 identifies

entry conditions but is silent as to any controls to

which these aliens will be subject after they arrive in

this country.” Pet. App. 6a (internal quotation marks

omitted) (emphasis added). Department of State

statistics indicate that during fiscal year 2022, more

than 6.8 million visas were issued to all nonimmigrant

categories. See U.S. Dep’t of State, Report of the Visa

Office 2022, Table 1. 8 The D.C. Circuit’s majority

8 Available at https://tinyurl.com/42tt8dvb.

23

opinion affords DHS broad, independent regulatory

authority over all nonimmigrant visa holders.

Although the majority opinion rejects Petitioner’s

opening-the-“floodgates warning,” Pet. App. 49a,

Judge Rao, joined by Judge Henderson, maintain that

the

panel

decision

has

serious

ramifications for the enforcement of

immigration law. In holding that the

nonimmigrant visa requirements are

merely conditions of entry, the court

grants

[DHS]

virtually

unchecked

authority to extend the terms of an alien’s

stay in the United States. This decision

concerns not only the large number of F-1

visa recipients, but explicitly applies to all

nonimmigrant visas and therefore has

tremendous practical consequences for

who may stay and work in the United

States. 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. This is a question of

exceptional importance . . . .

Id. 279a (emphasis added).

The Court should grant review in this case

because it presents an important statutory

construction

issue

that

has

far-reaching,

multifaceted, national and international significance.

24

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 729-6337

May 2023