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

No. 22-1071

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 KANSAS AND 10 OTHER STATES

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

KRIS W. KOBACH

ANTHONY J. POWELL

Attorney General of Kansas Solicitor General of Kansas

(Counsel of Record)

DWIGHT R. CARSWELL

Deputy Solicitor General

KURTIS K. WIARD

Assistant Solicitor General

120 S.W. 10th Ave., 2nd Floor

Topeka, KS 66612

(785) 296-2215

anthony.powell@ag.ks.gov

Counsel for Amici States

(additional counsel listed after signature page)

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

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES...................................... iii

INTRODUCTION AND INTEREST OF

AMICI CURIAE........................................................... 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ............................................................... 3

I.

The OPT Rule is inconsistent with the text

and structure of the Immigration and

Nationality Act ................................................. 3

II.

The OPT Rule circumvents the quotas that

Congress has placed on H-1B visas for skilled

workers.............................................................. 6

III.

The D.C. Circuit’s interpretation would

have wide-ranging consequences beyond F-1

visas................................................................... 9

CONCLUSION .......................................................... 11

iii

TABLE OF AUTHORITIES

CASES

Arizona v. United States,

567 U.S. 387 (2012) ................................................. 1

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................. 8

MCI Telecommunications Corp. v. American

Telephone & Telegraph Co.,

512 U.S. 218 (1994) ................................................. 9

United States Telecom Assn. v. FCC,

855 F.3d 381 (D.C. Cir. 2017) ................................. 9

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ................................................. 8

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ..................................... 7, 8, 9

STATUTES

8 U.S.C. § 1101(a)(13)(A) ............................................ 9

8 U.S.C. § 1101(a)(15) ........................... 1, 2, 3, 4, 9, 10

8 U.S.C. § 1101(a)(15)(F) ............................................. 5

8 U.S.C. § 1101(a)(15)(F)(i) ............................. 1, 2, 3, 4

8 U.S.C. § 1101(a)(15)(F)(iii) ................................. 5, 11

8 U.S.C. § 1101(a)(15)(H)(ii)(b) ................................... 6

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

8 U.S.C. § 1184(a) ........................................................ 9

8 U.S.C. § 1184(a)(1) ................................................... 4

8 U.S.C. § 1184(g)(1).................................................... 6

8 U.S.C. § 1184(g)(5)(C)............................................... 6

iv

8 U.S.C. § 1227(a)(1)(C)(ii) ...................................... 2, 4

1

INTRODUCTION AND

INTEREST OF AMICI CURIAE

The States of Kansas, Alabama, Idaho, Indiana,

Mississippi, Missouri, Montana, Nebraska, North Dakota, Tennessee, and Virginia respectfully submit this

brief as amici curiae in support of Petitioner. 1

The federal government’s power over immigration

“does not diminish the importance of immigration policy to the States.” Arizona v. United States, 567 U.S.

387, 397 (2012). But States generally must rely on

Congress to represent their interests in that area. And

so they have a stake in ensuring that the Executive

Branch’s immigration policy complies with the statutes Congress enacts.

The D.C. Circuit upheld a Department of Homeland Security (DHS) regulation that is fundamentally

at odds with the governing statutory scheme. That

regulation, the Optional Practical Training (OPT)

Rule, allows F-1 student visa holders to remain in the

country and work for up to thirty-six months after the

completion of their studies, despite the fact that F-1

visas are restricted to aliens entering the United

States “solely for the purpose of pursuing [a full]

course of study” at an academic institution. 8 U.S.C.

§ 1101(a)(15)(F)(i). The OPT Rule harms the citizens

of amici States, who must now compete with F-1 visa

holders for jobs.

Amici States are also concerned with the broader

ramifications of the D.C. Circuit’s decision. By interpreting § 1101(a)(15) as merely imposing entry re1 Amici timely notified counsel of record of their intent to file this

brief. See Supreme Court Rule 37.2

2

quirements, which DHS is free to disregard after aliens enter the country, the decision opens the door to

a massive regulatory expansion of the precise nonimmigrant visa categories prescribed by Congress.

SUMMARY OF THE ARGUMENT

The OPT Rule conflicts with the text and structure

of the Immigration and Nationality Act (INA). The

INA provides that an F-1 nonimmigrant visa is available to an alien “who is a bona fide student qualified

to pursue a full course of study and who seeks to enter

the United States temporarily and solely for the purpose of pursuing such a course of study” at an academic institution or accredited language training program. § 1101(a)(15)(F)(i) (emphasis added). Under the

plain text of this provision, F-1 visas do not allow aliens to remain and work in the United States after the

completion of their studies. Other provisions of the

INA make clear that the nonimmigrant status specified by § 1101(a)(15) must be maintained for the visa

to remain valid. See 8 U.S.C. § 1227(a)(1)(C)(ii).

Allowing F-1 visa holders to work in the United

States after graduation circumvents the quotas that

Congress has placed on H-1B visas for skilled workers. As DHS admitted in adopting an earlier version

of the OPT Rule, the rule was motivated by DHS’s

view that the quotas imposed by Congress are too restrictive and harm American employers. But the question of whether and how many foreign aliens should

be allowed to work in the United States is a question

of major economic and political significance that our

constitutional system reserves for Congress, not bureaucrats. DHS has not identified the sort of clear congressional authorization that the major questions doctrine requires to justify the OPT Rule.

3

The D.C. Circuit’s holding that § 1101(a)(15) imposes only entry requirements that no longer apply

once aliens have entered the country has consequences beyond F-1 visas. The INA establishes numerous categories of nonimmigrant visas, each with

detailed criteria. The D.C. Circuit’s decision authorizes DHS to extend all of these precisely defined statutory categories by regulation to anything “reasonably related” to the statute. This Court should not allow

such a massive expansion of administrative authority.

ARGUMENT

I.

The OPT Rule is inconsistent with the text

and structure of the Immigration and Nationality Act.

The INA specifies “classes of nonimmigrant aliens”

who are eligible for admission into the United States.

§ 1101(a)(15). An F-1 student visa is available for an

alien “who is a bona fide student qualified to pursue a

full course of study and who seeks to enter the United

States temporarily and solely for the purpose of pursuing such a course of study” at an academic institution or accredited language training program.

§ 1101(a)(15)(F)(i).

The plain text of this provision does not authorize

F-1 visa holders who have completed their course of

study to remain and work in the United States under

that visa. A person who has already graduated is no

longer a “bona fide student,” nor is employment a “full

course of study . . . at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in

an

accredited

language

training

program.”

§ 1101(a)(15)(F)(i).

4

The D.C. Circuit incorrectly held that § 1101(a)(15)

only prescribes entry requirements and that once aliens are admitted, DHS regulations may allow them

to remain in the United States even if they no longer

satisfy the statutory visa criteria. Pet. App. 40a-51a.

This interpretation is inconsistent with the text of

§ 1101(a)(15), which plainly limits the visa to “bona

fide students.”

It is also inconsistent with other provisions of the

INA. Elsewhere, the INA specifies that “[a]ny 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.” 8 U.S.C.

§ 1227(a)(1)(C)(ii); see also 8 U.S.C. § 1184(a)(1) (authorizing DHS to require nonimmigrant visa holders

to give a bond sufficient “to insure that . . . upon failure to maintain the status under which he was admitted . . . such alien shall depart from the United

States”). In other words, the “nonimmigrant status”

specified by § 1101(a)(15) must be “maintain[ed]” for

a nonimmigrant visa to remain valid. Thus, an F-1

visa holder who is no longer pursuing a full course of

study at an academic institution is not eligible to stay

in the United States.

The

D.C.

Circuit’s

interpretation

of

§ 1101(a)(15)(F)(i) would lead to an absurd result. If

that statute specifies entry requirements only, then

an alien who at the time of entry intends to complete

post-graduation OPT would not be admissible, since

the alien is not seeking “to enter the United States . . .

solely for the purpose of pursuing [a full] course of

study.” § 1101(a)(15)(F)(i) (emphasis added). But an

alien who seeks to enter solely for the purpose of full-

5

time study and only later develops an intent to remain

for post-graduation employment would be entitled to

remain on an F-1 visa. It is implausible that Congress

would have made such a peculiar distinction based on

when the alien formed an intent to work in the United

States after graduation.

The D.C. Circuit also failed to consider the statutory context of 8 U.S.C. § 1101(a)(15)(F)(iii). While F1 visas are only available to students pursuing a “full

course of study,” § 1101(a)(15)(F)(iii) authorizes

nonimmigrant visas for certain part-time students,

namely:

an alien who is a national of Canada or

Mexico, who maintains actual residence

and place of abode in the country of nationality, who is described in clause (i) except

that the alien’s qualifications for and actual

course of study may be full or part-time,

and who commutes to the United States institution or place of study from Canada or

Mexico.

The reference back to F-1 visas under clause (i) is instructive. Clause (iii) creates a carve-out from clause

(i)—a limited exception for part-time study. But the

phrase “who commutes to the United States institution or place of study” (emphasis added) indicates an

ongoing restriction, not a mere entry requirement.

There would be no need for a carve-out discussing ongoing activity if the standards for the ordinary student

visa were mere entry requirements that could be

abandoned once the visa was obtained. Likewise, the

reference to the alien’s “actual course of study” indicates that visas under § 1101(a)(15)(F) only authorize

aliens to remain in the United States while they are

6

actually pursuing a course of study, not for a period of

post-graduation employment.

II.

The OPT Rule circumvents the quotas

that Congress has placed on H-1B visas for

skilled workers.

The OPT Rule also upsets the balance between the

need for foreign labor and the protection of American

workers that Congress has attempted to achieve in

statutes governing H-1B nonimmigrant visas for

skilled workers. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b).

Many F-1 visa holders who remain and work in the

United States after graduation under the OPT Rule

could seek to obtain an H-1B visa. Pet. App. 685a (noting 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”). But Congress has placed

an annual quota on the number of H-1B visas that

may be issued. 8 U.S.C. § 1184(g)(1). Congress has

also created an exemption from this general quota for

nonimmigrant aliens who have “earned a master’s or

higher degree from a United States institution of

higher education” (presumably often under an F-1

visa), although only “until the number of aliens who

are exempted from such numerical limitation during

such year exceeds 20,000.” 8 U.S.C. § 1184(g)(5)(C).

By authorizing F-1 visa holders to work in the United

States after graduation, the OPT Rule circumvents

these clear statutory limitations.

7

Indeed, DHS admitted that this was one of the purposes of an earlier version of the OPT Rule. 2 That rule,

adopted in 2008, noted that the “H-1B category is

greatly oversubscribed” and that “[t]he inability of

U.S. employers, in particular in the fields of science,

technology, engineering and mathematics, to obtain

H-1B status for highly skilled foreign students and

foreign nonimmigrant workers has adversely affected

the ability of U.S. employers to recruit and retain

skilled workers . . . .” Pet. App. 684a-685a. DHS recognized that this situation was directly caused by the

quotas on H-1B visas prescribed by Congress. Pet.

App. 684a. But rather than attempt to convince Congress to modify the quotas to address these concerns,

DHS instead resorted to regulatory fiat and authorized an extended period of OPT for science, technology, engineering, and math graduates. Pet. App. 689a.

DHS’s action harms citizens of amici States, who

must now compete with F-1 visa holders for jobs. As

the D.C. Circuit noted, “there is little dispute that the

2016 OPT Rule has increased the labor supply in the

STEM field.” Pet. App. 22a. In fact, the court found

that an increased competition for jobs provided Petitioner with standing to challenge the rule. Pet. App.

20a-23a.

Even if DHS could conjure up a “plausible textual

basis” for the OPT Rule—which it cannot—it certainly

has not demonstrated “clear congressional authorization” as required by the major questions doctrine. See

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

2 The 2008 OPT Rule was set aside for failure to follow notice and

comment procedures. Pet. App. 12a. While DHS omitted this discussion of H-1B visas from its current rule, the current rule continues to circumvent the statutory quotas on H-1B visas.

8

(quoting Utility Air Regulatory Group v. EPA, 573

U.S. 302, 324 (2014)). The extent to which foreign aliens should be allowed to enter the United States and

compete with American workers for jobs is a question

of “economic and political significance.” Id. at 2608

(quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 159 (2000)). And the breadth of DHS’s

assertion of administrative power—the regulatory

creation of a guest worker program that at times “surpasse[s] the H-1B visa program as the greatest source

of highly skilled guest workers,” see Pet. App. 79a

(Henderson, J., concurring)—“provide[s] a ‘reason to

hesitate before concluding that Congress’ meant to

confer such authority.” West Virginia, 142 S. Ct. at

2608 (quoting Brown & Williamson, 529 U.S. at 159).

DHS’s disagreement with the visa categories and quotas Congress has prescribed does not give it authority

to alter that scheme by regulation.

This case presents yet another example of an

“agenc[y] asserting highly consequential power beyond what Congress could reasonably be understood

to have granted.” Id. at 2609. When Congress has created other nonimmigrant visa categories for the purpose of employment—and placed caps on those numbers of visas—it is implausible that Congress would

have authorized DHS to allow nonimmigrants admitted on F-1 visas solely for the purpose of full-time

study to remain and work in the United States under

their F-1 visas after graduation. Rather, “common

sense as to the manner in which Congress [would have

been] likely to delegate’ such power to the agency at

issue, ma[kes] it very unlikely that Congress ha[s] actually done so.” Id. at 2609 (internal citation omitted).

9

The D.C. Circuit allowed DHS to rely on what was

at most “oblique or elliptical language to empower

[DHS] to make a ‘radical or fundamental change’ to a

statutory scheme.” Id. (quoting MCI Telecommunications Corp. v. American Telephone & Telegraph Co.,

512 U.S. 218, 229 (1994)). The D.C. Circuit held that

the OPT Rule was authorized by 8 U.S.C. § 1184(a),

which provides that the “admission to the United

States of any alien as a nonimmigrant shall be for

such time and under such conditions as the Attorney

General may by regulations prescribe.” But as Judge

Rao explained in her dissent from the denial of rehearing en banc, this authority applies only to “admission,”

which is defined as “the lawful entry of the alien into

the United States.” Pet. App. 283a (citing 8 U.S.C.

§ 1101(a)(13)(A)). This authority allows DHS to fill in

certain details relating to nonimmigrant visa holders’

admission to the country. Id. But it does not allow

DHS to expand the nonimmigrant visa categories defined by Congress and create a brand new guest

worker program. This Court “presume[s] that ‘Congress intends to make major policy decisions itself, not

leave those decisions to agencies.’” West Virginia, 142

S. Ct. at 2609 (quoting United States Telecom Assn. v.

FCC, 855 F.3d 381, 419 (D.C. Cir. 2017) (Kavanaugh,

J., dissenting from denial of rehearing en banc)).

III.

The D.C. Circuit’s interpretation would

have wide-ranging consequences beyond

F-1 visas.

Amici States’ concern is not limited to F-1 student

visas. The INA delineates numerous categories of

nonimmigrant visas and establishes detailed criteria

on their availability. See § 1101(a)(15). The D.C. Circuit’s holding that § 1101(a)(15) addresses only entry

10

requirements applies to all of these categories, as that

court recognized. Pet. App. 49a-50a (“[T]he time and

conditions DHS sets are not cabined to the terms of

the entry definition . . . .”).

The only limit to the D.C. Circuit’s holding is that

DHS’s action must be “reasonably related” to the purposes of the visa class. Pet. App. 26a-27a. As Judge

Rao observed, “[t]his capacious standard could distort

other nonimmigrant categories, allowing, for instance, an agricultural worker admitted under an H2A visa to remain in the country even if he abandons

his agricultural work and opts instead to pursue a degree in agricultural sciences.”

To give another example, 8 U.S.C. § 1101(a)(15)(I)

allows the admission of “an alien who is a bona fide

representative of foreign press, radio, film, or other

foreign information media, who seeks to enter the

United States solely to engage in such vocation.” Under the D.C. Circuit’s theory, DHS could authorize an

alien to remain in the United States under a foreign

journalist visa even when the alien no longer works

for a foreign news organization as long as the alien

pursues other plans “reasonably related” to journalism.

Or consider the example of Mexican and Canadian

part-time commuter students discussed above. If

§ 1101(a)(15) only imposes entry requirements, DHS

could admit Mexican or Canadian aliens who intend

to commute for part-time study but then allow those

aliens to stop commuting and maintain a full-time residence in the United States. Or the agency could allow

F-1 visa holders, once admitted to the country for purposes of full-time study, to remain for part-time study.

After all, part-time study is surely more “reasonably

11

related” to full-time study than post-graduation employment is. Yet Congress has strictly limited nonimmigrant visas for part-time study to Mexican and Canadian nationals who commute to the United States.

See § 1101(a)(15)(F)(iii).

The D.C. Circuit’s decision sanctions a dramatic

and unprecedented regulatory expansion of the specific nonimmigrant visa categories prescribed by Congress. That decision cannot stand.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted,

KRIS W. KOBACH

Attorney General of Kansas

ANTHONY J. POWELL

Solicitor General of Kansas

(Counsel of Record)

DWIGHT R. CARSWELL

Deputy Solicitor General

KURTIS K. WIARD

Assistant Solicitor General

120 S.W. 10th Ave.

2nd Floor

Topeka, KS 66612

(785) 296-2215

anthony.powell@ag.ks.gov

Counsel for Amici States

12

ADDITIONAL COUNSEL

Steve Marshall

Attorney General

State of Alabama

Austin Knudsen

Attorney General

State of Montana

Raúl R. Labrador

Attorney General

State of Idaho

Michael T. Hilgers

Attorney General

State of Nebraska

Theodore E. Rokita

Attorney General

State of Indiana

Drew H. Wrigley

Attorney General

State of North Dakota

Lynn Fitch

Attorney General

State of Mississippi

Jonathan Skrmetti

Attorney General

State of Tennessee

Andrew Bailey

Attorney General

State of Missouri

Jason Miyares

Attorney General

State of Virginia