Petition for Writ of Certiorari — Save Jobs USA, Petitioner v. Department of Homeland Security, et al.
Supreme Court briefJul 3, 2023
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APPENDIX
TABLE OF CONTENTS
Appendix A
Opinion, United States District Court for
the District of Columbia, Save Jobs USA v.
U.S. Dep’t of Homeland Sec.,
No. 15-CV-0615 (March 28, 2023) ...................... 1a
Appendix B
Opinion, United States Court of Appeals for
the District of Columbia Circuit, Save Jobs
USA v. U.S. Dep’t of Homeland Sec.,
No. 16-5287 (November 8, 2019) ...................... 19a
Appendix C
Opinion, United States District Court for
the District of Columbia, Save Jobs USA v.
U.S. Dep’t of Homeland Sec.,
No. 15-CV-0615 (September 27, 2016) ............. 33a
Appendix D
Opinion, United States District Court for
the District of Columbia, Save Jobs USA v.
U.S. Dep’t of Homeland Sec.,
No. 15-CV-0615 (May 24, 2023) ........................ 53a
Appendix E
Relevant Statutory Provisions .......................... 69a
Appendix F
Employment Authorization for Certain H-4
Dependent Spouses, 80 Fed. Reg 10,283
(Feb. 25, 2015) ................................................... 73a
1a
APPENDIX A
No. 15-CV-0615
United States District Court
for the District of Columbia
Save Jobs USA v. U.S. Dep’t of Homeland Sec.
[Filed: March 28, 2023]
Memorandum Opinion
In this Administrative Procedure Act (“APA”) action,
Plaintiff Save Jobs USA, an association representing
Southern California Edison workers, challenges a Department of Homeland Security (“DHS”) rule allowing
H-4 visa-holders to apply for employment authorization. Plaintiff claims that the rule lacks statutory authorization, violates the nondelegation doctrine, and is
arbitrary and capricious. Both parties have moved for
summary judgment. Intervenors Immigration Voice
and Anujkumar Dhamija, as well as amici curiae comprising more than forty companies and organizations
have filed briefs in support of Defendant’s motion.
Having considered all those filings, and for the reasons stated herein, Plaintiff’s motion for summary
judgment will be DENIED, and Defendant’s motion
for summary judgment will be GRANTED.
2a (A)
I. BACKGROUND
The court has set forth the relevant background for
this case in prior opinions, so only a brief description
is necessary here. See Save Jobs USA v. U.S. Dep’t of
Homeland Sec., 210 F. Supp. 3d 1 (D.D.C. 2016); Save
Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp.
3d 108 (D.D.C. 2015).
A. Statutory and Regulatory Framework
The Immigration and Naturalization Act (“INA”) authorizes DHS to admit foreign workers into the U.S. to
perform certain types of labor. See 8 U.S.C.
§ 1101(a)(15)(H). The “H-1B” category of visa-holders
are admitted “to perform services . . . in a specialty occupation” for an initial period of three years, extendable
for
three
additional
years.
Id.
§ 1101(a)(15)(H)(i)(b). Spouses and minor dependents
of H-1B visa-holders are granted H-4 visas allowing
them to reside in the United States as well. See id.
Generally, H-1B visa-holders and their H-4 spouses
and dependents may reside in the U.S. for up to six
years, after which time they must leave and remain
abroad for at least one year before seeking to reenter
in the same status. See 8 U.S.C. § 1184(g)(4); 8 C.F.R.
§ 214.2(h)(13)(iii)(A). However, H-1B visa-holders may
transition to legal permanent resident (“LPR”) status—i.e., become a green card holder—through the
employer-sponsored immigration process. This process requires the H-1B visa-holder’s employer to obtain a Department of Labor certification that there are
no U.S. workers who are “able, willing, qualified[,] . . .
and available” to perform the job, and that the “wages
3a (A)
and working conditions” of “similarly employed”
American workers will not be “adversely affected.”
8 U.S.C. § 1182(a)(5)(A)(i). If the Secretary of Labor
approves the certification, the employer then submits
a Form I-140 petition for DHS’s approval. See id.
§ 1154(a)(1)(F), (b); 8 C.F.R. § 204.5(a). Due to frequently oversubscribed quotas for the number of H-1B
visa-holders who may transition to LPR status, there
are often long delays, and an applicant may have to
leave the U.S. before receiving a decision on their status adjustment application.
To prevent the potential for disruption to employers
and families, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000
(“AC21 Act”). Under that Act, if an applicant has an
approved Form I-140 petition and is unable to adjust
their status because of per-country visa limits, they
may extend their H-1B stay in three-year increments
until their application for LPR status has been adjudicated. See Pub. L. No. 106-313, § 104(c), 114 Stat.
1251, 1253; 8 C.F.R. § 214.2(h)(13)(iii)(E). H-1B visaholders who are the subject of labor certification applications or Form I-140 petitions may also be eligible for
recurring one- year extensions of H-1B status if 365
days have elapsed since the application or petition was
filed. See AC21 Act § 106(a)-(b), 114 Stat. at 1253-54,
as amended by 21st Century Department of Justice
Appropriations Authorization Act, Pub. L. No. 107273, § 11030A, 116 Stat. 1762, 1836-37 (2002);
8 C.F.R. § 214.2(h)(13)(iii)(D).
The rule at issue in this case permits a subset of H-4
visa-holders to apply for Employment Authorization
Documents (“EADs”) allowing them to work in the
4a (A)
United States. To be eligible, the H-4 visa-holder’s
H-1B spouse must either be transitioning to LPR status by way of either an extension past their sixth year
under the AC21 Act or be the subject of an approved
Form I-140 petition but cannot adjust status because
of visa oversubscription. See Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg.
10,284, 10,285 (Feb. 25, 2015) (codified at 8 C.F.R.
§§ 214.2, 274a) (“H-4 Rule”). The H-4 Rule aims to
“ameliorate certain disincentives that currently lead
H-1B nonimmigrants to abandon efforts to remain in
the United States while seeking LPR status, thereby
minimizing disruptions to U.S. businesses employing
such workers.” Id. The Rule underwent notice-andcomment procedures, see Employment Authorization
for Certain H-4 Dependent Spouses, 79 Fed. Reg.
26,886 (May 12, 2014) (proposed rule), and took effect
on May 26, 2015, see 80 Fed. Reg. 10,284 (Feb. 25,
2015).
B. Procedural History
On April 23, 2015, Plaintiff filed this suit and moved
for a preliminary injunction to prevent Defendant
from implementing the H-4 Rule. See Pl. Mot. Prelim.
Inj. ECF No. 2. The court denied Plaintiff’s motion on
May 24, 2015. See May 24, 2015 Order, ECF No. 14;
105 F. Supp. 3d at 116. Later that year, the parties
cross-moved for summary judgment. See Pl. Second
Summ. J. Mot., ECF No. 26; 1 Def. First Summ. J.
Cross-Mot., ECF No. 27. The court denied Plaintiff’s
1 Plaintiff’s first motion for summary judgment was dismissed
without prejudice. See July 1, 2015 Minute Order.
5a (A)
motion and granted Defendant’s motion, ruling that
Plaintiff lacked standing. See 210 F. Supp. 3d at 13.
Plaintiff appealed and the D.C. Circuit reversed and
remanded for further proceedings. Save Jobs USA v.
Dep’t of Homeland Sec., 942 F.3d 504 (D.C. Cir. 2019).
Plaintiff and Defendant have once again cross-moved
for summary judgment. ECF Nos. 67, 69.
II. LEGAL STANDARD
The APA commands that a court set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or that
is “contrary to [a] constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)-(B).
Summary judgment is typically appropriate when
the pleadings and evidence demonstrate that “there is
no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a). But Rule 56(a)’s standards do not apply
in an APA action where “the district judge sits as an
appellate tribunal,” and the “[e]ntire case on review is
a question of law.” Am. Bioscience, Inc. v. Thompson,
269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks omitted). Instead of reviewing the record
for disputed facts, “the function of the district court is
to determine whether or not as a matter of law the evidence in the administrative record permitted the
agency to make the decision it did.” Sierra Club v.
Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (quotation marks and citation omitted). This standard of review is “narrow,” and a court applying it “is not to substitute its judgment for that of the agency.” Motor
6a (A)
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).
III. ANALYSIS
A. Statutory Authorization
Plaintiff’s primary contention is 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. But as the D.C. Circuit has recently
explained, that contention runs headlong into the text
of the INA, decades of Executive-branch practice, and
both explicit and implicit congressional ratification of
that practice.
The Circuit’s analysis in Washington Alliance of
Technology Workers v. United States Department of
Homeland Security is directly applicable to this case.
50 F.4th 164 (D.C. Cir. 2022) (“Washtech”). There, a
labor union representing STEM workers claimed DHS
lacked statutory authority to authorize employment
as part of a post-graduation, “Optional Practical
Training” program for F-1 student visa-holders. Id. at
190. The D.C. Circuit squarely rejected that argument
for at least three reasons, all of which foreclose Plaintiff’s parallel assertion here.
The first reason was “the INA’s explicit grant of authority to the Department,” which not only “commands DHS to ‘establish such regulations’ as its Secretary ‘deems necessary for carrying out his authority,’” but also “specifically 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
7a (A)
Attorney General may by regulations prescribe.’” Id.
(first quoting 8 U.S.C. § 1103(a)(3), then quoting id.
§ 1184(a)(1)). The Attorney General’s authority to set
the “time” and “conditions” of visa-holders’ stay has
been transferred to DHS. Id. at 170 n.1. In the case of
F-1 students, the D.C. Circuit held, “[w]hether they
can work” is such a condition, just like rules governing
“where they can study,” the “courses they must take,”
and “what any accompanying spouse or children may
do while in the country.” Id. at 190 (citations omitted).
The INA’s text therefore expressly contemplates DHS
authorizing employment for foreign nationals. Id.
Second, “[h]istory corroborates that Congress meant
what it plainly said in the INA when it granted DHS
authority in section 1184(a)(1) to set the conditions of
F-1 students’ admission.” Id. “DHS and its predecessors have been authorizing student visa-holders to
work at jobs related to their studies since at least
1947.” Id.; see also id. at 171-73 (reviewing history).
“And across decades of the Executive doing so openly,
. . . Congress has chosen to maintain the relevant provisions” of the INA. Id. at 190; see id. at 180-83 (reviewing history). In fact, “Congress also expressly exempted F-1 students from several forms of wage
taxes—a measure that would be completely unnecessary if those students lacked authorization to work.”
Id. at 191. Thus, “Congress has not just kept its silence
by refusing to overturn [an] administrative construction, but has ratified it with positive legislation,”
which renders “that construction virtually conclusive.”
Id. (quoting Commodity Futures Trading Comm’n v.
Schor, 478 U.S. 833, 846 (1986)).
8a (A)
Finally, and relatedly, Congress verified “that DHS
may lawfully authorize employment for nonimmigrants” when it passed the 1986 Immigration Control
and Reform Act (“IRCA”). Id. “IRCA prohibits the employment of ‘unauthorized aliens,’” which it defines as
“one who is neither ‘lawfully admitted for permanent
residence’ nor ‘authorized to be so employed by this
chapter or by the Attorney General’—now DHS.” Id.
(first quoting 8 U.S.C. § 1324a(a)(1), then quoting id.
§ 1324a(h)(3)). “IRCA’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.” Id.
The D.C. Circuit’s holding and reasoning in
Washtech apply with equal force in this case. Like the
Optional Practical Training program at issue there,
Defendant promulgated the H- 4 Rule here pursuant
to its time-and-conditions and general regulatory authority, as confirmed by IRCA. See 80 Fed. Reg. at
10,285 & 10,294 (citing 8 U.S.C. §§ 1103(a)(3), 1184(a),
1324a(h)(3)(B)). On their face, the “time” and “conditions” of a visa-holder’s stay in the United States include “what an accompanying spouse . . . may do while
in the country,” as well as whether “[w]hether they can
work.” Washtech, 50 F.4th at 190. IRCA verifies the
plain meaning of those terms in the INA by recognizing that some visa-holders may be “authorized to be .
. . employed . . . by” DHS. 8 U.S.C. § 1324a(h)(3). In
short, Congress has expressly and knowingly empowered Defendant to authorize employment as a permissible condition of an H-4 spouse’s stay in the United
States.
9a (A)
The fact that the Executive Branch has had
longstanding and open responsibility for authorizing
employment for similar visa classes further manifests
Congress’s approval of Defendant exercising that authority. For example, DHS and its predecessors have
authorized employment not just for students, see
Washtech, 50 F.4th at 171-73, but also for their
spouses and dependents, see Brief of Leading Companies and Business Associations as Amici Curiae in
Support of Defendant at 12 n.5, ECF No. 80 (“Amici
Brief”) (collecting agency policy documents dating
back to 1965 permitting, among others, J-2 spouses to
work). For instance, DHS has long extended work authorization to spouses of foreign government officials
and spouses of employees or officers of international
organizations. See Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25,079 (May 5,
1981). Rather than refuting the straightforward interpretation of the INA that permits DHS to exercise that
authority, Congress has repeatedly blessed it by leaving the relevant provisions of the INA untouched, even
as it as amended other portions of the statute during
the last several decades. See Washtech, 50 F.4th at
183; see, e.g., Amici Brief at 18 n.8 (citing several recent amendments to 8 U.S.C. § 1324a). That constitutes “persuasive evidence that the interpretation is
the one intended by Congress.” Schor, 478 U.S. at 846.
Mindful of controlling precedent in this Circuit, this
court will not disturb it. 2
2 Because the statute’s text and history plainly permit Defend-
ant to authorize employment for H-4 spouses, the court does not
analyze Defendant’s contention that it may do so under Chevron
10a (A)
Plaintiff’s arguments do nothing to undermine Defendant’s statutory authority. First, Plaintiff argues
that “Congress did not delegate to DHS general authority to authorize aliens to work in 8 U.S.C.
§ 1324a(h)(3).” Plaintiff’s Second Renewed Motion for
Summary Judgment at 7, ECF No. 67 (“Pl.’s MSJ”); id.
at 7-9. Plaintiff “is right that section 1324a(h)(3) is not
the source of the relevant regulatory authority,” but
that is beside the point, which is that “section
1324a(h)(3) expressly acknowledges that employment
authorization need not be specifically conferred by
statute; it can also be granted by regulation, as it has
been” here. Washtech, 50 F.4th at 191-92. Plaintiff
does not cite, much less contest, the explicit statutory
grant of time- and-conditions authority to DHS in
8 U.S.C. § 1184(a)(1).
Second, Plaintiff admits that Defendant (or its predecessors) have long authorized employment for visaholders but asserts that Congress has never implicitly
endorsed that practice. See Reply in Support of Plaintiff’s Second Renewed Motion for Summary Judgment
at 9-11, ECF No. 76 (“Pl.’s Reply”); Pl.’s MSJ at 9-10.
But Plaintiff’s attempts to support that assertion fall
short. To start, it argues that there is no legislative
history suggesting Congress intentionally granted
DHS power to authorize employment. Pl.’s MSJ at
9-10. In fact, as the Circuit noted in Washtech, the
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). Were there any ambiguity in the INA, however, that
ambiguity would counsel deference because Defendant has reasonably resolved it. Id. at 866; Washtech, 50 F.4th at 192-93; see
infra Section III.C.
11a (A)
1950 Senate study that was the “genesis” of the INA
recognized that the Executive branch was already authorizing employment for nonimmigrant visa-holders.
50 F.4th at 181 (citing S. Rep. No. 81-1515, at 503).
Knowing that, Congress nonetheless decided to maintain all the relevant grants of authority to the Executive. Id. Thus, while Plaintiff is right that the INA
“provides strong safeguards for American labor,” see
S. Rep. No. 82-117 at 11, Congress also recognized
that the Executive might authorize employment to
further the statute’s other broad and varied goals—
such as promoting “foreign policy, constitutional guarantees, public welfare, the health, the economy, and
the productivity of the Nation,” Congressional and Administrative News, 82nd Congress, Second Session,
1952, v. 2, p. 1750. As discussed above, “[m]ore than
seventy years of history and practice since it enacted
the 1952 INA shows that Congress has not changed its
mind.” Washtech, 50 F.4th at 164.
Lastly, Plaintiff cites the fact that several members
of Congress have introduced but never passed bills to
grant H-4 spouses work authorization. Pl.’s MSJ at 10.
But the Supreme Court has noted that “Congressional
inaction lacks persuasive significance because several
equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S.
633, 650 (1990) (internal quotation marks and citation
omitted). This case illustrates that problem. At most,
the introduction of those bills shows that some members of Congress thought it would be a good idea for
H-4 spouses to have work opportunities; it says
12a (A)
nothing about whether Congress believed that, even if
it took no action, the Executive could still authorize
that employment. Indeed, Congress could have rejected those proffered bills precisely because it wanted
to leave the choice whether to authorize employment
for H-4 spouses up to DHS, given its expertise in the
field. See id. There is accordingly no logical basis for
inferring that Congress believes Defendant powerless
to promulgate the H-4 Rule.
For these reasons, the court concludes that Defendant possessed the requisite statutory authority to issue the H-4 Rule.
B. Separation of Powers and Non-Delegation
Doctrine
Plaintiff’s second challenge is related to its first. It argues that any interpretation of the INA allowing Defendant to authorize employment for H-4 spouses
would violate the constitutional separation of powers
and related “nondelegation doctrine.” Pl.’s MSJ at 1315. This argument, too, is unavailing in light of the
D.C. Circuit’s decision in Washtech.
“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v. United
States, 488 U.S. 361, 371 (1989). Under that system,
Congress “may not transfer to another branch ‘powers
which are strictly and exclusively legislative.’” Gundy
v. United States, 139 S. Ct. 2116, 2123 (2019) (quoting
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43
(1825)). “This principle does not mean, however, that
only Congress can make a rule of prospective force.”
13a (A)
Loving v. United States, 517 U.S. 748, 758 (1996).
“Congress may ‘obtain[] the assistance of its coordinate Branches’—and in particular, may confer substantial discretion on executive agencies to implement
and enforce the laws.” Gundy, 139 S. Ct. at 2123 (quoting Mistretta, 488 U.S. at 372). And because “Congress
simply cannot do its job absent an ability to delegate
power under broad general directives,” the Supreme
Court has “held time and again, that a statutory delegation is constitutional as long as Congress ‘lay[s]
down by legislative act an intelligible principle to
which the person or body authorized to [exercise the
delegated authority] is directed to conform.’” Id.
(same). The “intelligible principle” standard is “not demanding,” and is satisfied unless “Congress ha[s]
failed to articulate any policy or standard” at all. Id.
at 2129. This case does not raise those concerns. Plaintiff asserts that even if Congress granted
Defendant power to authorize employment for
nonimmigrant visa-holders, it “did so while giving no
guidance whatsoever on how this authority was to be
used.” Pl.’s MSJ at 14-15. But in Washtech, in which
the plaintiffs also made nondelegation arguments, see
50 F.4th at 191, the D.C. Circuit explained how the
INA’s text and structure establishes the “limiting
principle” to “constrain DHS’s regulatory authority,”
id. at 189.
Section 1184(a)(1)[] . . . provides time-and-conditions
authority specifically for the “admission to the
United States of any alien as a nonimmigrant.”
8 U.S.C. § 1184(a)(1) (emphasis added). Notably,
however, the INA does not define “nonimmigrant” as
14a (A)
a general category, but only as a set of discrete classes. Id. § 1101(a)(15)(A)-(V). Those dozens of class
definitions are each very brief, specifying little more
than a type of person to be admitted and the purpose
for which they seek to enter. No definition states exactly how long the person may stay, nor spells out
precisely what the nonimmigrant may or may not do
while here for the specified purpose. Those are parameters that Congress expected the Executive to
establish “by regulations,” which is exactly what section 1184(a)(1) grants DHS the authority to do. In
short: The INA uses visa classes to identify who may
enter temporarily and why, but leaves to DHS the
authority to specify, consistent with the visa class
definitions, the time and conditions of that admission.
Id. at 177-78 (footnote omitted). Thus, “[p]ursuant to
the Secretary’s obligation to exercise its rulemaking
power in keeping with the statute’s text and structure,
DHS must ensure that the times and conditions it attaches to the admission of [nonimmigrant visa-holders] are reasonably related to the purpose for which
they were permitted to enter.” Id. at 179.
As the next section explains, the H-4 Rule satisfies
that statutory requirement. But the requirement’s
mere existence provides an intelligible principle of delegation and is therefore fatal to Plaintiff’s nondelegation challenge.
15a (A)
C. Arbitrary and Capricious Claim
Plaintiff’s final argument is that Defendant’s promulgation of the H-4 Rule was arbitrary and capricious in
violation of the APA, 5 U.S.C. § 706(2)(A).
The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a rational connection between the
facts found and the choice made.
State Farm, 463 U.S. at 43 (quotation omitted). Plaintiff asserts two violations of that standard, but neither
is persuasive.
First, Plaintiff argues that the H-4 Rule reversed
without explanation a prior policy established by Congress and DHS—i.e., that H-4 spouses had no work authorization. The court disagrees. As Washtech explained, the INA empowers (but does not require) Defendant to set certain “conditions” of nonimmigrant
visa-holders’ stay in the United States, potentially including work authorization. See 50 F.4th at 177-78.
Defendant’s choice to exercise its statutory discretion
did not change that policy. After Defendant and Intervenors made the same argument in their briefing,
Plaintiff failed to respond. See Memo. in Support of
Def.’s Cross- Mot. for Summary Judgment and Opp. to
Pl.’s Mot. for Summary Judgment at 23-28, ECF No.
69-1 (“Def.’s MSJ”); Intervenor’s Memo. in Support of
DHS’s Mot. for Summary Judgment and in Opp. to
Save Jobs USA’s Mot. for Summary Judgment at 27-
16a (A)
28; Pl.’s Reply at 1-15. Indeed, Plaintiff’s Reply did not
address any of the arguments opposing its arbitrary
and capricious challenge, see Pl.’s Reply at 1-17, and
thereby effectively concedes them, Am. Waterways Operators v. Regan, 590 F. Supp. 3d 126, 138 (D.D.C.
2022) (“If a party fails to counter an argument that the
opposing party makes in a motion, the court may treat
that argument as conceded.”) (citations omitted).
In any event, Defendant did explain why it had decided to authorize employment for H-4 spouses. In doing so, Defendant also demonstrated how the H-4 Rule
“is reasonably related to the nature and purpose of the
[H-4] visa class.” Washtech, 50 F.4th at 179; see supra
Section III.B. As relevant here, that class includes individuals “accompanying” or “following to join” the
holder of an H-1B visa in the United States. 8 U.S.C.
§ 1101(a)(15)(H). In turn, the H-1B class enables the
entry of workers who come “to perform services . . . in
a specialty occupation.” Id. As the H-4 Rule explained,
“[r]etaining highly skilled workers who intend to acquire LPR status” is critical to fulfill the purposes of
the H-1B visa class, including benefiting from those
individuals’ “advances in entrepreneurship and research and development, which are highly correlated
with overall economic growth and job creation.”
80 Fed. Reg. at 10,284. But upon review of recent data
and reports from experts, see id. at 10,304-05, Defendant concluded that “the lack of employment authorization for H-4 dependent spouses” undermines that retention because it “often gives rise to personal and economic hardships for the families of H-1B nonimmigrants,” leading them to “abandon efforts to remain in
the United States,” id. at 10,284-85. Accordingly,
17a (A)
granting employment authorization for H-4 spouses
furthers the dual statutory purposes of H-1B workers
performing specialty services in the United States,
and H-4 spouses accompanying them. Id.
Second, Plaintiff initially contends that Defendant
“entirely failed to consider” the “negative effect” that
the H-4 Rule could have on American workers. Pl.’s
MSJ at 17. But in the next paragraph, Plaintiff recognizes—as it must—that Defendant did consider that
effect, and instead takes aim at Defendant’s methodology for doing so. Id. (citing 80 Fed. Reg. at 10,295).
Defendant noted that the H-4 Rule would “not result
in ‘new’ additions to the labor market” because “it
simply accelerates the timeframe by which [H-4
spouses] can enter the labor market.” 80 Fed. Reg. at
10,309. In addition, Defendant calculated that “even if
every eligible H-4 spouse took advantage of the rule in
the first year (the year with the most newly-eligible
H-4 spouses) it would amount to less than 0.12% of the
U.S. workforce.” Def.’s MSJ at 27 (citing 80 Fed. Reg.
at 10,295 & 10,309). By contrast, Defendant noted
that commenters predicting negative impacts on
American jobs did not provide any empirical support
for that prediction. 80 Fed. Reg. at 10,296. In light of
that data, Defendant concluded that the H-4 Rule’s
benefits outweighed its “minimal” economic costs. Id.
at 10,295-96. That suffices to establish a “rational connection between the facts found and the choice made.”
State Farm, 463 U.S. at 43. Plaintiff’s insistence that
it would have been better to compare “the number of
workers added under the H-4 rule per year” to “the average monthly job creation” in the United States rather than “the total size of the American workforce,”
18a (A)
Pl.’s MSJ at 17-18, does not render Defendant’s analysis—based on the evidence before it—irrational.
As a result, Plaintiff has failed to demonstrate that
the H-4 Rule was arbitrary and capricious.
IV . CONCLUSION
For these reasons, Plaintiff’s Motion for Summary
Judgment, ECF No. 67, will be DENIED, and Defendant’s Cross-Motion for Summary Judgment, ECF No.
69, will be GRANTED. A corresponding Order will accompany this Memorandum Opinion.
Date: March 28, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
ORDER
For the reasons set forth in the accompanying Memorandum Opinion, ECF No. 85, Plaintiff’s Motion for
Summary Judgment, ECF No. 67, is hereby DENIED,
and Defendant’s Cross-Motion for Summary Judgment, ECF No. 69, is hereby GRANTED. Accordingly,
this action is hereby DISMISSED with prejudice pursuant to Federal Rule of Civil Procedure 56. This is a
final appealable order.
Civil Action No. 15-615 (TSC)
Date: March 28, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
19a
APPENDIX B
No. 16-5287
United States Court of Appeals
for the
District of Columbia Circuit
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
942 F.3d 504 (D.C. Cir. 2019)
[Filed] November 8, 2019
Before: TATEL and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Save Jobs USA, an association
representing Southern California Edison workers,
challenges a Department of Homeland Security rule
that permits certain visa holders to seek lawful employment. The district court found that Save Jobs
lacked Article III standing and granted summary
judgment in the Department’s favor. We reverse. For
the reasons set forth in this opinion, we conclude that
Save Jobs has demonstrated that the rule will subject
its members to an actual or imminent increase in competition and that it therefore has standing to pursue
its challenge.
I.
Our nation’s immigration laws distinguish between
two categories of foreign nationals seeking admission
20a (B)
to the United States: “nonimmigrants,” who plan to
stay in the country only temporarily, and “immigrants,” who plan to stay permanently. See 8 U.S.C.
§ 1184(b) (“Every alien . . . shall be presumed to be an
immigrant until he establishes . . . that he is entitled
to a nonimmigrant status . . . .”); id. § 1101(a)(15) (setting forth nonimmigrant classifications). The rule
challenged here attempts to ease the burdens faced by
certain nonimmigrants during their often-lengthy
transition to immigrant status.
The Immigration and Nationality Act authorizes the
admission of nonimmigrants “to perform services . . .
in a specialty occupation,” id.§1101(a)(15)(H)(i)(b),
and
those
specialty
workers’
spouses,
id.§1101(a)(15)(H). Specialty workers admitted under
this provision receive H–1B visas, which permit them
to work in the occupation for which they were admitted. 8 C.F.R. § 214.2(h)(1)(i), (ii)(B). The specialty
workers’ spouses receive H–4 visas, which permit the
spouses to reside in the United States but do not authorize them to work. Id. § 214.2(h)(9)(iv). Generally,
H–1B visa holders and their H–4 spouses may reside
in the country for a maximum of six years, after which
time they must depart and remain abroad for at least
one year before seeking to reenter in the same status.
8 U.S.C. § 1184(g)(4); 8 C.F.R. § 214.2(h)(13)(iii)(A).
Although the H–1B visa permits its holder to remain
in the United States only temporarily, an H–1B
nonimmigrant may obtain a permanent resident
visa—better known as a green card—through the employer-sponsored immigration process. Getting a
green card takes a long time. An employer must first
identify a job for which the H–1B visa holder will be
21a (B)
permanently hired and then certify to the Secretary of
Labor that (1) “there are not sufficient workers who
are able, willing, qualified[,] . . . and available” to fill
the position; and (2) that the alien’s employment “will
not adversely affect the wages and working conditions” of “similarly employed” workers in the United
States. 8 U.S.C. § 1182(a)(5)(A)(i). If the Secretary approves the certification, the employer then submits a
so- called Form I–140 petition, which must be approved by the Department before the H–1B visa holder
can change status. See id. § 1154(a)(1)(F), (b); 8 C.F.R.
§ 204.5(a). But even H–1B visa holders with approved
Form I–140 petitions may be unable to adjust status
because the Act limits the total number of available
employment-based green cards. See 8 U.S.C. §
1151(d). The Act also specifies a per-country cap, further limiting the number of green cards available to
individuals from the same country. See id.
§ 1152(a)(2). Once a country’s cap is reached, applicants from that country must wait until more employment-based green cards become available.
Recognizing the potential for delay in adjustment,
Congress amended the Act to permit H–1B visa holders who have begun the employer-based immigration
process to remain and work in the United States while
awaiting decisions on their applications for lawful permanent residence. Under the amended Act and its implementing regulations, H–1B nonimmigrants with
approved Form I–140 petitions who are unable to adjust status because of per-country visa limits may extend their H–1B stay in three-year increments until
their adjustment of status applications have been adjudicated. See American Competitiveness in the
22a (B)
Twenty-first Century Act of 2000, Pub. L. No. 106-313,
§ 104(c), 114 Stat. 1251, 1253 (codified at 8U.S.C.
§1184 note); 8C.F.R. § 214.2(h)(13)(iii)(E). In addition,
H–1B visa holders who are the beneficiaries of labor
certification applications or Form I–140 petitions are
eligible for recurring one-year extensions of H–1B status if 365 days have elapsed since the application or
petition was filed. See American Competitiveness in
the Twenty-first Century Act § 106(a)–(b), 114 Stat. at
1253–54, as amended by 21st Century Department of
Justice Appropriations Authorization Act, Pub. L. No.
107-273, §11030A, 116 Stat. 1762, 1836–37 (2002)
(codified at 8 U.S.C. § 1184 note); 8 C.F.R.
§ 214.2(h)(13)(iii)(D).
Against this background, the Department issued a
rule permitting H–4 visa holders to obtain work authorization if their H–1B visa-holding spouses have
been granted an extension of status under the Act or
are the beneficiaries of approved Form I–140 petitions
but cannot adjust status due to visa oversubscription.
Employment Authorization for Certain H–4 Dependent Spouses, 80 Fed. Reg. 10,284, 10,285 (Feb. 25,
2015) (codified at 8 C.F.R. §§ 214.2, 274a) (“H–4
Rule”). By making H–4 visa holders eligible for lawful
employment, the Department sought to “ameliorate
certain disincentives that currently lead H–1B nonimmigrants to abandon efforts to remain in the United
States while seeking [lawful permanent resident] status, thereby minimizing disruptions to U.S. businesses employing such workers.” Id. Specifically, the
Department explained that H–1B nonimmigrants and
their families often face long delays in the process of
obtaining permanent residence, and that H–4 visa
23a (B)
holders’ inability to work during these delays leads to
“personal and economic hardships” that worsen over
time, “increas[ing] the disincentives for H–1B nonimmigrants to pursue [lawful permanent resident] status and thus increas[ing] the difficulties that U.S. employers have in retaining highly educated and highly
skilled nonimmigrant workers.” Id. at 10,284.
Appellant Save Jobs, an association formed to “address the problems American workers face from foreign labor entering the United States job market
through visa programs,” Compl. ¶ 8, challenged the
rule in the district court, arguing that it exceeded the
Department’s statutory authority, and that, in adopting it, the Department acted arbitrarily and capriciously. The parties cross-moved for summary judgment on standing and the merits. The district court,
finding that Save Jobs failed to demonstrate that the
rule would cause its members any injury and thus
lacked Article III standing, granted summary judgment in the Department’s favor. See Save Jobs USA v.
Department of Homeland Security, 210 F. Supp. 3d 1,
5, 8–11 (D.D.C. 2016).
Save Jobs appealed. Following the early 2017
change of presidential administrations, we held the
case in abeyance, initially to allow the incoming administration time to consider the case and later because the Department expected to begin the process of
rescinding the rule. In December 2018, we removed
the case from abeyance and granted Immigration
Voice and two of its members permission to intervene
in order to defend the rule. “Our review is de novo.”
American Institute of Certified Public Accountants v.
24a (B)
IRS, 804 F.3d 1193, 1196 (D.C. Cir. 2015) (citation
omitted).
II.
“The ‘irreducible constitutional minimum of standing
consists of three elements’: ‘[t]he plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.’” Air Line Pilots Ass’n, International v. Chao,
889 F.3d 785, 788 (D.C. Cir. 2018) (alteration in original) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016)). As an association claiming representational standing, Save Jobs has standing to sue if “‘(1)
at least one of [its] members has standing to sue in her
or his own right, (2) the interests [it] seeks to protect
are germane to its purpose, and (3) neither the claim
asserted nor the relief requested requires the participation of an individual member in the lawsuit.’” American Institute, 804 F.3d at 1197 (quoting American Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir.
2005)). The Department challenges only the first of
these three requirements. Because the district court
disposed of this case at summary judgment, Save Jobs
“may not rest on ‘mere allegations, but must set forth
by affidavit or other evidence specific facts’ demonstrating standing.” Shays v. Federal Election Commission, 414 F.3d 76, 84 (D.C. Cir. 2005) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “For
purposes of the standing inquiry, we assume [Save
Jobs] would succeed on the merits of [its] claim.”
25a (B)
Barker v. Conroy, 921 F.3d 1118, 1124 (D.C. Cir.
2019).
Save Jobs argues, as it did in the district court, that
the rule harms its members in several ways, including
by increasing competition for jobs from H–1B visa
holders. The doctrine of competitor standing recognizes that “when regulations illegally structure a competitive environment—whether an agency proceeding,
a market, or a reelection race—parties defending concrete interests in that environment suffer legal harm
under Article III.” American Institute, 804 F.3d at
1197 (internal quotation marks and alteration omitted). Relying on this “well- established principle,” Air
Line Pilots, 889 F.3d at 788, our court has repeatedly
held that an individual who competes in a labor market has standing to challenge allegedly unlawful government action that is likely to lead to an increased
supply of labor—and thus competition—in that market. See, e.g., Washington Alliance of Technology
Workers v. Department of Homeland Security, 892
F.3d 332, 339–40 (D.C. Cir. 2018) (labor market for
science, technology, engineering, and mathematics
jobs); Mendoza v. Perez, 754 F.3d 1002, 1011 (D.C. Cir.
2014) (labor market for open-range herding jobs). In
Washington Alliance of Technology Workers v. Department of Homeland Security, for example, we held that
a science, technology, engineering, and mathematics
workers’ union had standing to challenge a Department rule allowing student visa holders to remain in
the United States and work after finishing their degrees. 892 F.3d at 339–40, 342. The union alleged that
its members had applied to jobs at companies that employed the student visa holders and that those
26a (B)
companies had applied for the extension on behalf of
the student-employees. Id. at 339–40. We found that
the union had standing to pursue its challenge, id. at
342, explaining that “‘the basic requirement’” of a competitor standing claim is “‘an actual or imminent increase in competition, which increase we recognize
will almost certainly cause an injury in fact,’” id. at
339 (quoting Sherley v. Sebelius, 610 F.3d 69, 73 (D.C.
Cir. 2010)).
Save Jobs contends that, like the regulation challenged in Washington Alliance, the rule at issue here
will cause its members to face increased competition
for jobs. Absent the rule, argues Save Jobs, at least
some H–1B visa holders awaiting permanent residence would leave the United States— exiting the labor pool—because their spouses are unable to work.
By authorizing H–4 visa holders to seek employment,
Save Jobs continues, the rule removes a key obstacle
to H–1B visa holders remaining in the United States
throughout the immigration process, meaning that
more H–1B visa holders will stay and compete with
Save Jobs’ members than otherwise would have.
The administrative record demonstrates as much.
Cf. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, 901 F.2d 107, 114–
15 (D.C. Cir. 1990) (relying on the “agency’s own experience and sound market analysis” and the “public
comments” contained in the administrative record as
evidence of standing). In promulgating the rule, the
Department sought to “incentivize H–1B nonimmigrants and their families to continue to wait and contribute to the United States”—that is, by working—
“through an often lengthy waiting period for an
27a (B)
immigrant visa to become available.” H–4 Rule,
80 Fed. Reg. at 10,296. The Department expected the
rule would “benefit U.S. employers by decreasing the
labor disruptions that occur when H–1B nonimmigrants abandon the permanent resident process.” Id.
The record contains evidence confirming the Department’s expectation: more than sixty commenters
wrote that they had planned to move out of the United
States, but will instead remain and pursue lawful permanent resident status as a result of the new rule; two
dozen reported that they had already left the country
due to the prohibition on H–4 visa holder employment;
and several warned that they would soon leave because H–4 visa holders cannot work under current
(now former) law. Id. at 10,288, 10,293. Indeed, the
Department expressly “disagree[d]” with one commenter’s concern that the record “failed to indicate
that potential immigrants have abandoned the immigration process, or have decided against coming to the
United States in the first place, because their spouses
would not be authorized to work,” explaining that it
“believes that this rule will fulfill its intended purpose”— namely, “encourag[ing] certain highly skilled
H–1B nonimmigrants to remain in the United States.”
Id. at 10,293.
Given that Save Jobs has offered sufficient evidence
to show an “actual or imminent increase in competition,” Sherley, 610 F.3d at 73, all that remains is for it
to demonstrate that its members compete with H–1B
visa holders in the labor market. It has done so
through its members’ affidavits. Two members declare
that they worked as information technology specialists at Southern California Edison for more than
28a (B)
fifteen years until they were fired and replaced by H–
1B visa holders. Bradley Aff. ¶¶ 5, 8; Buchanan Aff.
¶¶ 7, 9. A third worked as a system analyst at Southern California Edison for twenty years until she, like
the other two, was fired and replaced by an H–1B visa
holder. Gutierrez Aff. ¶ 5, 10. All three have been actively looking for new jobs in the technology sector, including by attending job fairs, participating in job
placement programs, and submitting job applications.
See Bradley Aff. ¶13; Buchanan Aff. ¶ 14; Gutierrez
Aff. ¶¶ 12–13. Although Save Jobs “has offered no evidence that the competitive harm” it claims from the
rule “has yet occurred”—indeed, the members lost
their jobs, and Save Jobs filed suit, before the rule
went into effect—“our precedent imposes no such requirement.” American Institute, 804 F.3d at 1198. In
short, the affidavits establish that Save Jobs’ members compete with H–1B workers for technology jobs,
and the rulemaking record itself demonstrates that
the rule will increase competition for jobs.
The Department insists that any injury to Save Jobs
is caused by the H–1B visa program, not by the rule.
See Appellee’s Br. 24–26. We disagree. Save Jobs has
shown that the rule will cause more H–1B visa holders
to remain in the United States than otherwise
would—an effect that is distinct from that of the H–
1B visa holders’ initial admission to the country.
The Department also contends that Save Jobs has
failed to demonstrate that its members are “direct and
current competitor[s],” Mendoza, 754 F.3d at 1013
(emphasis omitted) (quoting KERM, Inc. v. FCC, 353
F.3d 57, 60 (D.C. Cir. 2004)), of H–1B visa holders. See
Appellee’s Br. 26–28. But the Department overreads
29a (B)
our “direct and current competitor” formulation,
which simply distinguishes an existing market participant from a potential—and unduly speculative— participant. Our court first used the term in New World
Radio, Inc. v. FCC, where a licensee of a Washington,
D.C. radio station challenged a Federal Communications Commission order granting a Maryland-based
station’s license renewal application. 294 F.3d 164,
166, 170 (D.C. Cir. 2002). Explaining that injury to the
Washington station could occur “only if” the Maryland
station “subsequently seeks and secures the relocation
of its [Maryland] broadcast license to the Washington,
D.C. programming area,” we held that the Washington
station lacked competitor standing to challenge the license. Id. at 171–72; see also DEK Energy Co. v.
FERC, 248 F.3d 1192, 1194 (D.C. Cir. 2001) (holding
that a petitioner who sold gas in the Northern California market lacked standing where it failed to claim
that its alleged competitor “ha[d] yet exploited [its] capacity to sell a single molecule of gas in Northern California”); El Paso Natural Gas Company v. FERC, 50
F.3d 23, 27 (D.C. Cir. 1995) (rejecting argument that
El Paso was a “potential competitor” of suppliers to the
Baja California market because it had not satisfied the
pre- conditions to the Federal Energy Regulatory
Commission’s approval of its entry into that market).
By contrast, in this case we know that H–1B visa holders have competed with Save Jobs’ members in the
past, and, as far as we know, nothing prevents them
from doing so in the future.
Making a related point, the Department argues that
because H–1B visa holders “by definition are already
employed,” Save Jobs must provide “more evidence
30a (B)
that [H– 1B visa holders] are seeking new jobs in the
same market as Save Jobs’ members.” Appellee’s Br.
26–27 (emphasis omitted). Again, we disagree. The
supply side of a labor market is made up of those individuals who are employed and those actively looking
for work. Indeed, in Washington Alliance, we never
questioned that technology job seekers competed in
the same labor market as student visa holders employed at technology firms. See 892 F.3d at 339–40.
Next, the Department claims that any H–1B visa
holders affected by the rule “are by definition . . . staying to apply for permanent residence,” making them
“part of the domestic labor pool of U.S. workers—not
alien competitors.” Appellee’s Br. 27 (internal quotation marks omitted). We cannot see how this defeats
Save Jobs’ claim of increased competition, and the Department never tells us.
At oral argument, Department counsel insisted that
no H–1B visa holder who will benefit from the rule will
compete with any Save Jobs members because eligibility for the rule depends on the H–1B visa holder first
having been offered a job for which the Department of
Labor has certified “no U.S. worker is available.” Oral
Arg. Tr. 21:17–18. In effect, counsel invites us to distinguish between H–1B visa holders generally, with
whom Save Jobs’ members are quite clearly in competition, and H–1B visa holders who have begun the process of applying for lawful permanent residence, who
the Department contends can only take jobs for which
there is no American competition. See id. at 28:11–19
(“They have not pled that they are seeking employment at companies for which H–1B workers who
would receive a benefit from the H–4 Rule are
31a (B)
currently employed, but even if they did, . . . [that]
would require . . . the prospect that . . . the H–1B visa
holder was in a job for which no U.S. worker was available, but instead they were available.”).
The Department neither raised this argument before the district court nor briefed it on appeal. “Generally, arguments raised for the first time at oral argument are forfeited.” United States ex rel. Davis v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir. 2015).
Given the Department’s insistence that the certification procedure “goes to our jurisdiction,” however, we
shall consider it—“though we are disappointed in the
[Department] for raising this issue so late that [Save
Jobs] had no adequate opportunity to respond.” Shays
v. Federal Election Commission, 528 F.3d 914, 923
(D.C. Cir. 2008).
The argument lacks merit in any event. The rule, as
well as the Department’s own briefing here and before
the district court, explains that for H–1B visa holders’
spouses to qualify for employment authorization, the
H–1B visa holders need only be the beneficiaries of
pending labor certification applications. See Appellee’s Br. 5–8; Def.’s Mem. in Supp. of its Mot. for
Summ. J. 3–4. While the application remains pending,
H–1B visa holders compete in the labor market
against Save Jobs’ members. Even more, after the labor certification is issued, in certain circumstances H–
1B visa holders may change jobs without obtaining
new certifications. See 8 U.S.C. §1182(a)(5)(A)(iv) (explaining that a labor certification for a nonimmigrant
“covered by section 1154(j)”—which pertains to nonimmigrants whose permanent residence applications remain pending for 180 days or more— “shall remain
32a (B)
valid with respect to a new job . . . if the new job is in
the same or a similar occupational classification as the
job for which the certification was issued”). The Department’s last- second effort therefore does nothing
to change our understanding of the case.
One additional matter remains: Save Jobs challenges the standing of Immigration Voice, Anujkumar
Dhamija, and Sudarshana Sengupta to intervene in
this appeal. But a motions panel has already ruled
that the intervenors have standing, and we are bound
by that decision. See Petties v. District of Columbia,
227 F.3d 469, 472 (D.C. Cir. 2000) (“Under this court’s
practice, a decision of the motions panel is the law of
the case; a later panel considering the merits is bound
by that law.”).
III.
Given that the merits here involve complex questions
about the scope of the Department’s authority, which
the Department did not brief on appeal, and recognizing the substantial possibility this case will be mooted
by the Department’s promised rescission of the rule,
we think it best to remand to give the district court an
opportunity to thoroughly assess and finally determine the merits in the first instance. Cf. Save Jobs,
210 F. Supp. 3d at 12–13 (“briefly discuss[ing] the
merits of Plaintiff’s APA claim” but “mak[ing] no final
determination”). Accordingly, we reverse the district
court’s grant of summary judgment and remand for
further proceedings consistent with this opinion.
So ordered.
33a
APPENDIX C
No. 15-CV-0615
United States District Court
for the District of Columbia
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
210 F. Supp. 3d 1 (D.D.C. 2016)
[Filed: September 27, 2016]
Memorandum Opinion
In this action brought under the Administrative Procedure Act (“APA”), Plaintiff Save Jobs USA challenges the Department of Homeland Security’s
(“DHS”) promulgation of a final rule allowing certain
H-4 visa holders to apply for employment authorization. See Employment Authorization for Certain H-4
Dependent Spouses, 80 Fed. Reg. 10,284 (Feb. 25,
2015) (codified at 8 C.F.R. §§ 214.2, 274a) (the “H-4
Rule”). Earlier in this case, Plaintiff moved for a preliminary injunction, which this court denied on the
grounds that it failed to establish imminent irreparable injury. 105 F. Supp. 3d 108 (D.D.C. 2015). Both
parties now move for summary judgment, and Defendant additionally moves to strike the appendix attached
to Plaintiff’s motion. Having considered the parties’
filings, and for the reasons stated herein, Plaintiff’s
motion for summary judgment is DENIED and Defendant’s motion for summary judgment is
34a (C)
GRANTED. Defendant’s motion to strike
GRANTED IN PART and DENIED IN PART.
is
I. FACTUAL BACKGROUND
The facts of this case were set forth in full in this
court’s preliminary injunction opinion, 105 F. Supp. 3d
at 110–12, and thus only a brief description is necessary here. Plaintiff, an organization whose members
are former information technology (“tech”) workers
who were replaced by foreign workers with H-1B visas, sued DHS under the APA to block the H-4 Rule
from taking effect.
Subsection H of the Immigration and Naturalization
Act (“INA”) authorizes DHS to admit foreign workers
into the United States to engage in certain types of labor. 8 U.S.C. § 1101(a)(15)(H). Subsection H-1B permits employers to hire foreign workers in a “specialty
occupation,” most relevantly tech jobs, for an initial
period of three years, extendable for three additional
years. Id. Spouses and minor dependents of H-1B visa
holders are permitted to reside in the U.S. with H-4
visas. Id. Employers of H-1B visa holders who wish to
transition to legal permanent resident (“LPT”) status
must obtain a Department of Labor certification that
there are no U.S. workers who are able, willing, qualified, and available to perform the job, and that the
wages and working conditions of American workers
will not be adversely affected. 8 U.S.C. §§ 1255(a),
1154, 1153(b)(2)–(3), 1182(a)(5)(A). Due to frequently
oversubscribed quotas for the number of H-1B visa
holders who may transition to LPT status, there are
long delays in this process, forcing many visa holders
35a (C)
who have applied to transition to leave the U.S. when
their visas expire. To prevent disruption for employers
and families, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000
(“AC21”), which permits extending H-1B visas past
the sixth year for those applying for LPT status.
The H-4 Rule at issue enables a subset of H-4 visa
holders to apply for Employment Authorization Documents (“EADs”), which would allow them to work in
the U.S. To be eligible, the H-4 visa holder’s H-1B
spouse must be transitioning to LPT status by way of
either an extension past their sixth year under the
AC21 or having received an approved labor certification (called a Form I-140 petition).
The rule aims to alleviate the financial and emotional burden placed on H-1B visa holders and their
families during this lengthy period in which only one
spouse may be employed. It underwent notice-andcomment procedures, see 79 Fed. Reg. 26,886 (May 12,
2014) (proposed rule), and the final rule took effect on
May 26, 2015, see 80 Fed. Reg. 10,284 (Feb. 25, 2015).
DHS expects as many as 179,600 H-4 visa holders to
be able to apply for EADs in the rule’s first year of implementation. 80 Fed. Reg. 10,285.
II. LEGAL STANDARD
In an APA action, the court’s role at the summary
judgment stage is to decide “as a matter of law,
whether the agency action is supported by the administrative record and otherwise consistent with the
APA standard of review.” Stuttering Found. of Am. v.
Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). A
36a (C)
court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). The
plaintiff bears the burden of establishing the invalidity of the agency’s action. See Fulbright v. McHugh, 67
F. Supp. 3d 81, 89 (D.D.C. 2014). The court’s review is
“highly deferential” and begins with a presumption
that the agency’s actions are valid. Envtl. Def. Fund,
Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). The
court is “not empowered to substitute its judgment for
that of the agency,” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 416 (1971), but instead
must consider only “whether the agency acted within
the scope of its legal authority, whether the agency
has explained its decision, whether the facts on which
the agency purports to have relied have some basis in
the record, and whether the agency considered the relevant factors,” Fulbright, 67 F. Supp. 3d at 89 (quoting
Fund for Animals v. Babbitt, 903 F. Supp. 96, 105
(D.D.C. 1995)) . Thus, all that is required is that the
agency’s decisions provide “a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983).
III. DISCUSSION
A. Defendant’s Motion to Strike
Defendant has moved, under Federal Rule of Civil
Procedure 12(f), to strike Plaintiff’s Appendix A (ECF
No. 26-1), attached in support of Plaintiff’s Motion for
Summary Judgment (ECF No. 28). Defendant argues
37a (C)
that the Appendix should be stricken, in whole or in
part, because Plaintiff may not: (1) supplement the administrative record; and (2) attempt to establish
standing with evidence that post-dates the Complaint.
As a general matter, a court must base its review of
agency actions solely on the record before the agency
when it made its decision, IMS, P.C. v. Alvarez,
129 F.3d 618, 623 (D.C. Cir. 1997), though when necessary to establish standing, a plaintiff may “supplement the record to the extent necessary to explain and
substantiate its entitlement to judicial review,” Sierra
Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002). However, the “existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint
is filed,” Lujan v. Defenders of Wildlife, 504 U.S. 555,
569 n.4 (1992), and thus a plaintiff may not supplement the record with materials that post-date the
complaint in order to establish standing. See Tracie
Park v. Forest Serv. of the U.S., 205 F.3d 1034, 1037–
38 (8th Cir. 2000) (holding plaintiff may not “use evidence of what happened after the commencement of
the suit” to show “a real and immediate threat” of injury); see also Perry v. Village of Arlington Heights,
186 F.3d 826, 830 (7th Cir. 1999) (“It is not enough for
[the plaintiff] to attempt to satisfy the requirements of
standing as the case progresses. The requirements of
standing must be satisfied from the outset.”).
Plaintiff’s Appendix A contains charts, tables, and
data illustrating H-1 Visa Petitions filed and approved; quotes from the administrative record; a magazine article; job postings; and a printout of a website.
The charts and data on pages 1–6, the Congressional
Record excerpts on page 7–8, and the data tables on
38a (C)
pages 9–12 may all be relevant for Plaintiff’s standing
arguments, and as such their inclusion is appropriate.
Based on the date stamps, the job listings reproduced
on pages 13–26 and the excerpts from the website “H4
Visa, A Curse” on pages 27–39 all post-date the Complaint. Plaintiff, without any supporting case law, theorizes that because it asserts standing based on an imminent injury caused by job competition, then these
post-Complaint documents purportedly showing employers hiring H-4 visa holders retroactively proves
the imminence of the injury at the time the Complaint
was filed. The court is unpersuaded that these documents establish any injury, whether actual or imminent, to support this theory, and therefore will grant
Defendant’s motion as to pages 13–39, which will be
stricken.
B. Standing
The court must first consider whether Plaintiff has
standing to challenge DHS’s promulgation of the H-4
Rule, as the court’s power under Article III “exists only
to redress or otherwise to protect against injury to the
complaining party.” Warth v. Seldin, 422 U.S. 490, 499
(1975). The plaintiff bears the burden of proof to establish each of the elements of Article III standing. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citing
Lujan, 504 U.S. at 561). Thus, Save Jobs must show:
“(1) an ‘injury in fact’ that is ‘concrete and particularized’ as well as ‘actual or imminent’; (2) a ‘causal connection’ between the injury and the challenged conduct; and (3) a likelihood, as opposed to mere speculation, ‘that the injury will be redressed by a favorable
39a (C)
decision.’” Ark Initiative v. Tidwell, 749 F.3d 1071,
1075 (D.C. Cir. 2014) (quoting Lujan, 504 U.S. at 560–
61).
When an agency’s action relates to one party but a
third party alleges harm, the indirectness of the injury
does not deprive that third party of standing. Warth,
422 U.S. at 505. However, Plaintiff, as such a third
party, faces a burden that is “substantially more difficult to meet the minimum requirement of Art. III: to
establish that, in fact, the asserted injury was the consequence of the defendants’ actions, or that prospective relief will remove the harm.” Id.; see also Arpaio,
797 F.3d at 15 (“Our precedents establish that standing based on third-party conduct . . . is significantly
harder to show than standing based on harm imposed
by one’s litigation adversary.”)
Finally, the court analyzes standing “as of the time
a suit commences.” Del Monte Fresh Produce Co. v.
United States, 570 F.3d 316, 324 (D.C. Cir. 2009).
Thus, Plaintiff must “allege that he has been or will in
fact be perceptibly harmed by the challenged agency
action, not that he can imagine circumstances in
which he could be affected by the agency’s action.”
United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 412 U.S. 669, 688–89
(1973). The law in this Circuit is clear: “When considering any chain of allegations for standing purposes,
we may reject as overly speculative those links which
are predictions of future events (especially future actions to be taken by third parties).” Williams v. Lew,
819 F.3d 466, 473 (D.C. Cir. 2016) (quoting Arpaio,
797 F.3d at 21).
40a (C)
1. Associational Standing
Plaintiff first contends that it has associational standing. To have standing, an association must: (1) identify
members who would have standing to sue in their own
right; (2) seek to protect interests that are germane to
its purpose; and (3) show that neither the claim asserted nor the relief requested requires an individual
member to participate in the suit. Nat’l Envtl. Dev.
Ass’ns Clean Air Project v. EPA, 752 F.3d 999, 1005
(D.C. Cir. 2014). To satisfy these requirements, Plaintiff provides affidavits from three members—Brian
Buchanan, D. Stephen Bradley, and Julie Gutierrez—
whom it alleges would have standing to bring this suit
on their own. Plaintiff further argues that its mission
includes “protect[ing] the economic security and working conditions of its members,” and that an individual
member does not have to participate in the suit in order for the organization to seek relief under the APA.
DHS failed to respond to Save Jobs’ associational
standing argument, and therefore the court will treat
that argument as conceded. See Wilkins v. Jackson,
750 F. Supp. 2d 160, 162 (D.D.C. 2010) (when a party
fails to respond to an argument raised in a motion, “it
is proper to treat that argument as conceded”).
2. Injuries to Plaintiff’s Members
Plaintiff next contends that it has met the constitutional minimum requirement for standing because its
members have suffered four specific injuries-in-fact
caused by the H-4 Rule: (1) the rule creates increased
competition for jobs from H-4 visa holders; (2) the rule
creates increased competition for jobs from H-1B visa
41a (C)
holders; (3) the rule confers a benefit on its members’
H-1B competitors; and (4) the rule deprives its members of statutory protections from foreign labor. The
court will address each injury individually.
a. Increased Competition from H-4 Visa Holders
Under the competitor standing doctrine, a plaintiff
suffers an injury-in-fact when a regulatory change increases her exposure to economic competition. See
Mendoza v. Perez, 754 F.3d 1002, 1011 (D.C. Cir.
2014). A party who may be injured by increased competition need not wait until she has been actually injured before bringing suit. Sherley v. Sebelius,
610 F.3d 69, 72 (D.C. Cir. 2010). However, Plaintiff
must show that the H-4 Rule has “the clear and immediate potential” to cause H-4 visa holders to compete
with its members. See La. Energy and Power Auth. v.
FERC, 141 F.3d 364, 367 (D.C. Cir. 1998). To demonstrate this clear and immediate potential for injury,
Plaintiff must demonstrate that its members are “direct and current” competitors, Mendoza, 754 F.3d at
1013, or that there is an “actual or imminent increase
in competition,” Sherley, 610 F.3d at 73.
Plaintiff argues that its members face imminent increased competition in the labor market from H-4 visa
holders because, if these workers are granted Employment Authorization Documents, they may apply for
the same jobs in the tech field that Plaintiff’s members
currently seek. Plaintiff submitted evidence that three
of its members are active participants in the labor
market for tech jobs. (Bradley Aff. ¶¶ 5, 13; Buchanan
Aff. ¶¶ 6, 7, 14; Gutierrez Aff. ¶¶ 5, 12 (ECF No. 26-2)).
However, Plaintiff has failed to demonstrate more
42a (C)
than a possibility that DHS’s H-4 Rule might introduce new competitors into the market for tech jobs.
While Plaintiff correctly states that it need not prove
that any competition for specific jobs has already
taken place, La. Energy, 141 F.3d at 367, it must still
present evidence beyond just mere speculation, since
“[b]are allegations of what is likely to occur are of no
value,” Wis. Gas. Co. v. FERC, 758 F.2d 669, 674 (D.C.
Cir. 1985). Here, only a subset of H-4 visa holders will
be eligible to apply for and then attain EADs, which
will allow them to seek employment in any job in the
entire U.S. labor market. To support its argument that
the alleged harm to Plaintiff’s members from competing with this subset of H-4 visa holders is more than
speculative, Plaintiff points primarily to two cases in
which plaintiffs were granted standing due to increased job competition: Mendoza and Washington Alliance of Technology Workers v. DHS, 156 F. Supp. 3d
123, 132 (D.D.C. 2015), vacated as moot, 2016 WL
3041029 (D.C. Cir. May 13, 2016). However, this case
differs significantly from Mendoza, which involved individuals in the specific labor market for open-range
herding jobs and a regulation directly affecting wages
in that field, as well as Washington Alliance of Technology Workers, which involved a DHS rule “explicitly
intended to increase the number of foreign nationals
competing for jobs” in the science, technology, engineering, and math (“STEM”) labor market. Here,
there is simply no evidence that the H-4 Rule was targeted at the tech field, 3 or that even one H-4 visa
3 Plaintiff’s only evidence on this point is a quote from Leon
Rodriguez, director of the U.S. Citizenship and Immigration
43a (C)
holder has sought or will seek a tech job in competition
with Plaintiff’s members. Plaintiff’s argument, without evidence, is bare speculation, and the injury it contemplates is insufficient to establish standing.
b. Increased Competition from H-1B Visa
Holders
Plaintiff argues that, as with H-4 visa holders, the increased job competition from H-1B workers creates an
injury-in-fact sufficient to establish standing. For reasons substantially similar to the ones stated above, the
court finds that it does not. At the core of Plaintiff’s
argument is its assertion that DHS’s goal in promulgating the H-4 Rule was designed “to increase the
number of H-1B workers.” In support, it points to various statements from the Federal Register in which
DHS discusses its goal of encouraging H-1B workers
pursuing LPT status to remain in the country to complete the process, when otherwise they might choose
to leave the U.S. (Pl. App. at 7–8). However, these
statements fail to demonstrate an increase in competition from H-1B visa holders; instead, it appears the
H-4 Rule might simply contribute to keeping H-1B
visa holders applying for LPT status in the U.S. This
is insufficient to show that Plaintiff’s members are
threatened with increased competition in the labor
market from H-1B visa holders.
Service, that H-4 visa holders “are in many cases, in their own
right, high-skilled workers of the type that frequently seek
H-1Bs.” (Pls. App. at 12). Without more, this isolated quote fails
to establish that DHS intended H-4 visa holders to apply for tech
jobs.
44a (C)
Plaintiff also describes at length the number of H-1B
visas granted each year, whether the program was
over- or under-subscribed in certain years, and notes
that H-1B eligible positions in universities and research centers do not contribute to the cap on H-1B
visas. It is unclear to the court why past data on H-1B
visas is relevant to establish harm from the H-4 Rule,
but even if in some years the H-1B program was undersubscribed, meaning more H-1B visas could have
been approved, and in future years more visas are issued so the quota is reached, this is data concerning
existing statutory limitations, which are not impacted
by the H-4 Rule. 4 While Plaintiff’s members allege
past injury from being replaced by H-1B visa holders
at their previous employment, the source of that injury is unrelated to the H-4 Rule. And, if in future
years the H- 1B program is again oversubscribed,
Plaintiff offers no evidence that this will be due to the
H-4 Rule, nor why the court should consider this an
injury at all given that Congress sets the quotas for
the visa program, not DHS. Because Plaintiff offers no
evidence that its members face an imminent or actual
increase in competition from H-1B visa holders as a
result of the H-4 Rule, this alleged injury is also insufficient to establish standing.
4 See 8 U.S.C. § 1184(g)(1)(A)(vii) (capping the number of H-1B
visas granted each year at 65,000), (g)(5)(A)–(B) (stating that
H-1B workers employed at universities or research organizations
do not count towards the 65,000 cap), (g)(5)(C) (stating that recipients of a master’s or higher degree from a U.S. university do
not count towards the 65,000 cap until the number of such individuals reach 20,000 a year).
45a (C)
c. Conferral of a Benefit on H-1B Competitors
of Plaintiff’s Members
Plaintiff next argues that the H-4 Rule confers a benefit on its members’ H-1B competitors, which courts
recognize as causing an injury-in-fact. See New World
Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002)
(finding injury when a rule “provides benefits to an existing competitor”). The cases upon which Plaintiff relies typically involved government action giving commercial benefits to market competitors. See Nat’l Envtl. Dev., 752 F.3d at 1005 (agency action imposing additional costs and processing time for entities in certain regions); Sea-land Serv., Inc. v. Dole, 723 F.2d
975, 977 (D.C. Cir. 1983) (agency’s grant of subsidy to
shipping competitor). Plaintiff alleges that the benefit
here is articulated in DHS’s statement of purpose in
the Federal Register: “DHS expects this change to reduce the economic burdens and personal stresses that
H-1B nonimmigrants and their families may experience.” 80 Fed. Reg. 10,285. Plaintiff offers no support
for its position that the goal of relieving economic uncertainty and personal anxiety in H-1B workers’ families amounts to an injury to Plaintiff’s members.
Thus, the court rejects this theory of standing as well.
d. Loss of Statutory Protections
Finally, Plaintiff points to the loss of statutory labor
protections as a fourth injury for Article III standing,
citing Brotherhood of Locomotive Engineers v. United
States, 101 F.3d 718, 724 (D.C. Cir. 1996) (“BLE”), National Treasury Employees Union v. Chertoff, 452 F.3d
839, 852–55 (D.C. Cir. 2006), International Union of
46a (C)
Bricklayers and Allied Craftsmen v. Meese, 761 F.2d
798, 802–05 (D.C. Cir. 1985), and Clinton v. City of
New York, 524 U.S. 417, 433 & n.22 (1998). However,
these cases are inapplicable here and do not support
finding a separate injury for standing. The first three
cases, in which union members were denied collective
bargaining rights or denied jobs by DHS (or its predecessor INS), involved past instances of harm, not speculation of future harm. The plaintiffs in Clinton had
standing because they were challenging the cancellation of a limited tax subsidy enacted for their specific
benefit. None of these cases help Plaintiff establish
that enabling H-4 visa holders to seek jobs in the U.S.
labor market is a “cancellation” or deprivation of any
specific rights in the statute so as to create an injuryin-fact for standing. Instead, as explained further below, whether Plaintiff’s claims fall within the “zone of
interests” of the statute is a separate inquiry from
standing altogether.
In sum, the H-4 Rule enables a subset of H-4 visa
holders to apply for EADs, which permit them to apply
for and secure paid employment in any job in the U.S.
labor market. While Plaintiffs may be correct in speculating that H-4 visa holders will seek tech jobs in
competition with its members, there is simply no evidence before the court to show that that will happen.
Therefore, because Plaintiff cannot establish that its
members face an imminent or actual injury, the court
need not engage in further analysis regarding causation, redressability, or ripeness, and the court concludes that Plaintiff lacks standing to proceed with
this case.
47a (C)
C. Zone of Interests
Having determined that Plaintiff cannot establish an
injury-in-fact, the court will briefly turn to whether
Plaintiff’s claim would fall within the statute’s zone of
interests, an additional requirement for establishing
an APA cause of action. Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 132 S.Ct.
2199, 2210 (2012). The zone of interests analysis requires courts to “determine, using traditional tools of
statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 (2014); see also
Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667,
675–676 (D.C. Cir. 2013) (Silberman, J., concurring)
(stating that the zone of interests analysis asks
whether “this particular class of persons ha[s] a right
to sue under the substantive statute”) (quoted in
Lexmark). This analysis is “not . . . especially demanding,” and “the benefit of any doubt goes to the plaintiff.
. . . The test forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent
with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the suit.” Patchak, 132 S. Ct. at 2210 (internal
quotation marks omitted).
The D.C. Circuit has explained that, “[i]n determining whether a petitioner falls within the ‘zone of interests’ to be protected by a statute, ‘we do not look at the
specific provision said to have been violated in complete isolation,’ but rather in combination with other
provisions to which it bears an ‘integral relationship.’”
48a (C)
Nat’l Petrochemical & Refiners Ass’n v. EPA, 287 F.3d
1130, 1147 (D.C. Cir. 2002) (per curiam) (quoting
Fed’n for Am. Immigration Reform, Inc. v. Reno, 93
F.3d 897, 903 (D.C. Cir. 1996)); see also Washington
Alliance of Tech. Workers, 156 F. Supp. 3d at 135
(finding plaintiff’s claims within the zone of interests
subsection (H)(1)(b) because it includes “many provisions designed to protect American labor,” and that
subsection (F)(1) was integrally related to (H)(1)(b) because both fall under the same section of the statute,
8 U.S.C. § 1101(a)(15)). Plaintiff primarily argues that
the H-4 Rule circumvents the labor protections Congress required under 8 U.S.C. § 1101(a)(15)(H) and related statutes for other H- type visas. This section of
the statute requires compliance with annual caps on
the number of visas issued, 8 U.S.C. § 1184(g), and requires the employer to certify with the Department of
Labor that it will pay the H-1B worker the same wages
paid to other employees in that position, 8 U.S.C.
§ 1184(n), in order to prevent employers from using
H-1B workers as a cheaper alternative to American
workers. Defendant argues that 8 U.S.C. §§ 1184(g)
and (n) do not apply to non-immigrants and their H-4
visa holding spouses, and thus cannot encompass
Plaintiff’s claim in their zone of interests.
Given that these provisions are part of the larger
framework offering protections for American labor,
and the H-4 and H-1B visas are established in the
same subsection of 8 U.S.C. § 1101(a)(15), the court
would have little difficulty concluding that 8 U.S.C.
§§ 1101(a)(15)(H)(1)(b) and 1101(a)(15)(H) are sufficiently “integrally related.” Therefore, the court would
conclude that Plaintiff’s interests in challenging the
49a (C)
H-4 Rule are within the zone of interests of the protections offered by the statutory provision authorizing
H-1B visas. However, this determination does not provide an independent basis for Plaintiff’s claim to survive. Having failed to demonstrate an injury-in-fact to
establish Article III standing, Plaintiff’s claim, though
within the zone of interests of the statute, cannot proceed.
D. Statutory Authority
Despite having found that Plaintiff lacks standing, the
court will also nevertheless briefly discuss the merits
of Plaintiff’s APA claim. For decades, Congress has
delegated substantial authority to DHS and its predecessor agency to issue employment-related immigration regulations, as part of the broader scope of its
power to enforce the INA and issue rules governing
nonimmigrants. 5 The H-4 Rule was promulgated under this delegated authority, and DHS engaged in the
required notice-and-comment rulemaking procedures.
5 See 8 U.S.C. § 1103(a)(1) (“The Secretary of Homeland Secu-
rity shall be charged with the administration and enforcement of
[the INA] and all other laws relating to the immigration and naturalization of aliens . . . .”); id. § 1184(a)(1) (“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 . . . .”); id. § 1324a(h)(3) (“[T]he term ‘unauthorized alien’ means, with respect to the employment of an alien
at a particular time, that the alien is not at that time either (A)
an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney
General.”).
50a (C)
See 79 Fed. Reg. 26,886 (May 12, 2014) (proposed
rule); 80 Fed. Reg. 10,284 (Feb. 25, 2015) (final rule).
Plaintiff articulates an interpretation of these authorizing statutes that would render DHS unable to
promulgate the H-4 Rule. However, DHS is entitled to
discretion in its interpretation of its statutory authority to implement the INA. Under step one of the analysis laid out in Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837, 844 (1984), the court determines that
Congress has already spoken to the issue of whether
DHS can issue employment authorization regulations,
see 8 U.S.C. §§ 1103(a)(1), 1324a(h)(3), though not precisely to the question of whether it may do so for H-4
visa holders. When Congress is not entirely clear, the
court proceeds to Chevron step two, which asks
whether DHS acted under a “reasonable interpretation” of the statutes. Chevron, 467 U.S. at 844. This
court must uphold the H-4 Rule unless it is “arbitrary,
capricious, or manifestly contrary to the statute.” Id.;
see also Allied Local & Reg’l Mfrs. Caucus v. EPA, 215
F.3d 61, 71 (D.C. Cir. 2000) (“Under Chevron, we are
bound to uphold agency interpretations as long as they
are reasonable—‘regardless whether there may be
other reasonable, or even more reasonable, views.’”)
(quoting Serono Lab., Inc. v. Shalala, 158 F.3d 1313,
1321 (D.C. Cir. 1998)). Defendant argues that Congress’s acquiescence in its employment authorization
rulemaking, stretching back as far as the 1952 passage of INA § 1103 (delegating enforcement of the INA
to the Attorney General), indicates its interpretation
of its authority is reasonable. This long-standing interpretation has never been altered by Congress. Indeed, the U.S. Attorney General adopted a final rule
51a (C)
in June 1981 which recognized its broad authority to
issue employment authorization to foreign workers,
see 46 Fed. Reg. 25,079 (June 4, 1981), and shortly
thereafter Congress passed the Immigration Reform
and Control Act of 1986, amending the INA and including the new § 1324a(h)(3), which affirmed the Attorney General’s authority by specifically mentioning
foreign workers “authorized to be so employed by this
chapter or by the Attorney General.” 8 U.S.C.
§ 1324a(h)(3) (emphasis added).
Moreover, the H-4 Rule is not arbitrary, capricious,
or manifestly contrary to the INA. The court’s role
here is simply to find “a rational connection between
the facts found and the choice made” by DHS. State
Farm, 463 U.S. at 43. Plaintiff argues that DHS reversed long- standing policy without adequate explanation and improperly concluded that 179,600 additional foreign workers will have a minimal impact on
U.S. workers. However, the record indicates that DHS
clearly justified its change in policy, see 80 Fed. Reg.
10,284 (describing the purpose of the regulatory action), and carefully considered the impact the rule will
have on U.S. labor markets, see id. at 10,295–96,
10,301. Plaintiff additionally refers to numerous provisions of the INA that are allegedly violated by the
H-4 Rule, without explaining why the rule violates
these statutes. None of those provisions offer support
for Plaintiff’s argument that the INA bars DHS from
authorizing this subset of H-4 visa holders to seek employment while transitioning to LPT status.
Given Plaintiff’s lack of standing in this case, the
court makes no final determination on the merits of
Plaintiff’s APA claim. However, in light of the broad
52a (C)
delegation of authority Congress conferred to DHS to
set rules regarding employment authorization in
§§ 1103(a) and 1324(h)(3), and its thorough consideration of the relevant factors in its decision-making, the
court would likely conclude that DHS’s interpretation
of its authority under the INA is not unreasonable,
and the H-4 Rule is a valid exercise of this rulemaking
authority.
IV . CONCLUSION
For the foregoing reasons, the court grants Defendant’s Cross-Motion for Summary Judgment and denies Plaintiff’s Motion for Summary Judgment.
Date: September 27, 2016
TANYA S. CHUTKAN United States District Judge
ORDER
Upon consideration of the parties’ filings, and for the
reasons stated in the accompanying Memorandum
Opinion, Plaintiff’s motion for summary judgment is
DENIED and Defendant’s motion for summary judgment is GRANTED. Defendant’s motion to strike is
also GRANTED IN PART and DENIED IN PART. Accordingly, it is ORDERED that this case is DISMISSED with prejudice.
Date: September 27, 2016
TANYA S. CHUTKAN United States District Judge
53a
APPENDIX D
No. 15-CV-0615
United States District Court
for the District of Columbia
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
105 F. Supp. 3d 108 (D.D.C. 2015)
[Filed: May 24, 2015]
Memorandum Opinion
Plaintiff Save Jobs USA (“Save Jobs”) brings this action against the U.S. Department of Homeland Security (“DHS”) for violations of the Administrative Procedures Act (“APA”). Save Jobs alleges that DHS violated the APA when it issued a final rule that will allow certain H-4 visa holders to apply for employment
authorization. See Employment Authorization for
Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284
(Feb. 25, 2015) (to be codified at 8 C.F.R. pts. 214.2,
274a) (the “Rule”). Before the court is Save Jobs’ motion for a preliminary injunction. Because Save Jobs
has failed to show it will suffer irreparable harm absent preliminary relief, the motion is denied.
I. BACKGROUND
Save Jobs is an organization whose members are former technology workers at Southern California Edison
(“SCE”). (Mot. 1). Save Jobs members all allegedly lost
54a (D)
their jobs and were replaced by foreign workers authorized to work in the U.S. under the H-1B guest
worker program. This case arises from Save Jobs’ allegation that its members will face even more competition from foreign workers as a result of the Rule,
which authorizes a subset of H-4 visa holders to apply
for employment authorization—those H-4 visa holders
whose spouses have H- 1B visas and are currently on
the path toward legal permanent resident status.
In support of its motion for a preliminary injunction,
Save Jobs submitted the affidavits of members D. Stephen Bradley, Brian Buchanan, and Julie Gutierrez.
Each of these individuals is a former employee at SCE
who worked in the information technology (“IT”) field.
Between April and July 2014, they were all fired and
replaced with H-1B visa holders employed by Tata
Consultancy Services, an Indian IT company. (Bradley
Aff. ¶ 8, Buchanan Aff. ¶ 9, Gutierrez Aff. ¶¶ 9-10).
Bradley, Buchanan and Gutierrez all allege that as a
condition of receiving severance, they were forced to
train their replacements.
The U.S. immigration system is complex, and the
court will provide only a brief synopsis of the applicable statutes here. Citizens from other countries are admitted into the U.S. as either immigrants, non-immigrants, or refugees. Immigrants are those foreign citizens who are in the U.S. on a permanent basis,
whereas non-immigrants are in the U.S. temporarily—for tourism, work, etc. U.S.C. Title 8, Section
1101(a)(15) authorizes DHS to admit non-immigrants
for various purposes. Non-immigrant visas are commonly known by the letter and number of their subsection within Section 1101(a)(15). For example, the
55a (D)
A-1 visa for diplomats is authorized by 8 U.S.C.
§ 1101(a)(15)(A)(i). Subsection H authorizes various
H visas for certain categories of foreign workers. 8
U.S.C. § 1101(a)(15)(H). Subsection H-1B allows U.S.
employers to hire temporary foreign workers to perform services in a specialty occupation; these visas are
particularly common in the technology field. H-1B status is valid for an initial period of up to three years,
but may be extended for up to an additional three
years, for a maximum of six years.
H-1B visa holders seeking legal permanent resident
status through employment-based (“EB”) immigration
may seek such status under five EB preference categories. Generally, the second (EB-2) and third (EB-3)
preference categories require employers to obtain a labor certification which states that there are no U.S.
workers who are able, willing, qualified, and available
for the job, and that the employment of the visa holder
will not adversely affect the wages and working conditions of workers in the U.S. 8 U.S.C. § 1182(a)(5)(A).
There are quotas for the total number of EB-2 and
EB-3 immigrant visas, and according to DHS, they
have been oversubscribed for a number of years, causing long delays before applicants in those categories
(including H-1B visa holders) are able to obtain legal
permanent resident status. According to DHS, U.S.
businesses employing H-1B visa holders suffer disruptions when such workers are required to leave the U.S.
at the termination of their H-1B status as a result of
these delays. Congress attempted to alleviate this burden when it passed the American Competitiveness in
the Twenty-first Century Act of 2000, as amended
(commonly referred to as the “AC21”). That statute
56a (D)
allowed for the extension of H-1B status past the sixth
year for workers who are the beneficiaries of certain
pending or approved EB immigrant visa petitions or
labor certification applications.
Importantly for this case, subsection H also authorizes what are known as H-4 visas. 1 H-4 visas allow
“the alien spouse and minor children of any such alien
specified in this paragraph if accompanying him or following to join him” to reside in the U.S. 8 U.S.C.
§ 1101(a)(15)(H). For example, the spouse of an H-1B
visa holder may receive an H-4 visa that allows him or
her to live—but not work—in the U.S.
The Rule—which goes into effect on May 26, 2015—
would amend DHS regulations to allow certain H-4
visa holders to apply for employment authorization.
The Rule applies only to spouses of H-1B visa holders
who have shown an intent to stay in the U.S. by beginning the process of becoming a legal permanent resident. Specifically, the Rule would allow H-4 visa holders to work if their spouse holds an H-1B visa and is
either the principal beneficiary of an approved Immigrant Petition for Alien Worker (I-140) or has been
granted H-1B status pursuant to sections 106(a) or (b)
of the AC21. The Rule states that its primary purpose
is to increase “incentives of certain H-1B nonimmigrants who have begun the process of becoming [legal
permanent residents] to remain in the United States
and contribute to the U.S. economy as they complete
this process. Providing the opportunity for certain H-4
1 These visas arise out of an unnumbered clause at the end of
subsection H; because the clause follows subsection H- 3, it has
become known as H-4.
57a (D)
dependent spouses to obtain employment authorization during this process will further incentivize H-1B
nonimmigrants to not abandon their intention to remain in the United States while pursuing [legal permanent resident status].” 80 Fed. Reg. 10,284, 10,309.
Save Jobs argues that the Rule must be invalidated
because DHS lacks the statutory authority to allow
H-4 visa holders to work, and because the Rule is arbitrary and capricious in light of the Congressional
policy of restricting H-4 visas to residency only. Save
Jobs seeks a preliminary injunction to stop the Rule
from taking effect and to preserve the status quo until
the merits of its challenge can be heard.
II. LEGAL STANDARD
In order to prevail on a motion for a preliminary injunction, the movant must show “that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded as of right.” Munaf v.
Geren, 553 U.S. 674, 689-90 (2008) (citations omitted).
The moving party must demonstrate a likelihood of
success on the merits, id., and some injury, as “[t]he
basis of injunctive relief in the federal courts has always been irreparable harm.” Sampson v. Murray,
415 U.S. 61, 88 (1974) (quoting Beacon Theatres, Inc.
v. Westover, 359 U.S. 500, 506-07 (1959)).
58a (D)
In the past, courts in this Circuit used a “sliding
scale” approach in analyzing the four preliminary injunction factors, meaning a particularly strong showing in one factor could outweigh weakness in another.
It is not clear whether this approach survives after
Winter, which suggested that a likelihood of success
on the merits must always be shown. See United
States Ass’n of Reptile Keepers, Inc. v. Jewell, No. 132007, 2015 WL 2207603, at *3 (D.D.C. May 12, 2015);
Arpaio v. Obama, 27 F. Supp. 3d 185, 196-98 (D.D.C.
2014). Under either approach, however, the movant
must always show irreparable harm or injury, and if a
party makes no showing of irreparable injury, the
court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir.
1995).
III. ANALYSIS
a. Irreparable Harm
The standard for irreparable harm is particularly high
in the D.C. Circuit. “[P]roving irreparable injury is a
considerable burden, requiring proof that the movant’s injury is certain, great and actual—not theoretical—and imminent, creating a clear and present need
for extraordinary equitable relief to prevent harm.”
Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190,
204 (D.D.C. 2005) (quoting Wis. Gas Co. v. FERC,
758 F.2d 669, 674 (D.C. Cir. 1985)) (internal quotation
marks omitted) (emphasis in original). In addition,
“the certain and immediate harm that a movant
59a (D)
alleges must also be truly irreparable in the sense that
it is ‘beyond remediation.’” Elec. Privacy Info. Ctr. v.
DOJ, 15 F. Supp. 3d 32, 44 (D.D.C. 2014) (citation
omitted). The movant must provide some evidence of
irreparable harm: “the movant [must] substantiate
the claim that irreparable injury is likely to occur” and
“provide proof that the harm has occurred in the past
and is likely to occur again, or proof indicating that the
harm is certain to occur in the near future.” Wis. Gas
Co., 758 F.2d at 674 (internal quotation marks and citation omitted). This is because “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of
injunctive relief as an extraordinary remedy that may
only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
As these authorities make clear, to meet the standard for irreparable harm the movant must present sufficient evidence that the purported injury is certain,
great, actual, imminent, and beyond remediation.
Save Jobs has failed to do so here.
i. Certain and Actual Harm
Save Jobs has not shown that its purported injuries
are certain enough to justify emergency relief. The
Rule would allow certain H-4 visa recipients to apply
for employment authorization. Once they receive authorization, these H-4 visa holders would not be restricted to applying for jobs in certain fields, but could
work in any field for any employer. There is no indication, and Save Jobs has not provided any evidence,
that it is certain that H-4 visa holders will apply for IT
60a (D)
jobs and compete with Save Jobs members. Save Jobs
is correct that this could happen, and eventually it
may in fact happen. But at this stage, it is entirely
speculative whether any H-4 visa holders will ever apply for IT jobs at SCE, IT jobs in California (where the
members of Save Jobs reside), or IT jobs at all. On the
record before the court, it is just as likely that H-4 visa
holders will apply for jobs in retail, in finance, or not
apply for jobs at all—there is simply no evidence to establish irreparable harm with any certainty. 2 The
Save Jobs members’ allegations that “[i]f DHS starts
allowing H-4 aliens to work in the computer job market, these persons will become additional competitors
for me when seeking employment,” see, e.g., Bradley
Aff. ¶ 15, are not enough without any corroborating
evidence, since “[b]are allegations of what is likely to
occur are of no value.” Wis. Gas Co., 758 F.2d at 674.
Save Jobs has shown the possibility that H-4 workers
may compete with its members, but that speculative
injury, however possible, is not actual and certain.
Winter, 555 U.S. at 22; see also Air Transp. Ass’n of
Am., Inc. v. Exp.-Imp. Bank of the U.S., 840
F. Supp. 2d 327, 337 (D.D.C. 2012) (in case involving
Export-Import Bank action allegedly favoring foreign
airline over U.S. airlines, no irreparable harm where
2 Save Jobs cites advertisements from IT training and place-
ment firms seeking H-4 visa holders as evidence that H-4 visa
holders will likely apply for IT jobs. (Pl. Mot. App’x). As DHS correctly points out, most of these advertisements are for IT training, not jobs. In addition, that these organizations (whose authenticity is less than clear) offer their services to future H-4
workers says little regarding whether those workers will actually
apply for or receive IT jobs.
61a (D)
“Air India has not announced the routes on which it
will use its new planes, including whether it will increase capacity on routes for which Delta or other participating ATA members offer competing service. Indeed, there is no showing even of how long it will take
Air India to deploy these planes from the date of delivery . . . Plaintiffs’ own charts show direct competition
will not necessarily occur.”) (citations omitted).
Save Jobs has also not shown with sufficient certainty that the Rule will result in injury from increased competition with H-1B visa holders. The affidavits Save Jobs provided do not even suggest this alleged injury; Save Jobs relies instead on the Rule itself, which states that its primary purpose is to incentivize H-1B visa holders to stay in the U.S. by allowing
their spouses to work. At this point, Save Jobs has provided no evidence that any H-1B visa holder has or
will stay in the U.S. as a result of the Rule. There is
also no evidence that the Rule will lead to an increase
in the number of H-1B visa holders seeking permanent residence and competing with Save Jobs’ members. This is no surprise, as it appears that for at least
the last several years the number of H-1B visa holders
has been at capacity, so the Rule would have no impact
on the number of qualifying H-1B visa holders present
in the U.S.
ii. Severity of Harm
In its motion, Save Jobs argues that it will suffer irreparable harm because the APA does not provide
monetary relief, meaning any injury it suffers is necessarily unrecoverable. (Pl. Mot. 12). At oral
62a (D)
argument, Save Jobs further explained that its immediate injury absent preliminary relief would be the period of competition its members would face while waiting for the court (should it rule in favor of Save Jobs
on the merits) to invalidate the Rule. Save Jobs argues
that its members should never have to compete with
H-4 visa holders, and therefore any time period in
which they do constitutes irreparable harm because
its members could not recover losses suffered during
that time, including loss of job opportunities and loss
or diminution in pay.
These highly speculative losses are not great enough
to warrant the extraordinary remedy of a preliminary
injunction. Save Jobs argues that its members may be
deprived of job opportunities or lost wages, which are
economic losses. See Air Transp. Ass’n of Am., Inc., 840
F. Supp. 2d at 335; Sataki v. Broad. Bd. of Governors,
733 F. Supp. 2d 22, 46 (D.D.C. 2010); Fraternal Order
of Police Library of Cong. Labor Comm. v. Library of
Cong., 639 F. Supp. 2d 20, 24 (D.D.C. 2009). Normally
“economic loss does not, in and of itself, constitute irreparable harm.” Wis. Gas Co., 758 F.2d at 674. However, “courts have recognized that economic loss may
constitute ‘irreparable harm’ where a plaintiff’s alleged damages are unrecoverable.” Clarke v. Office of
Fed. Hous. Enter. Oversight, 355 F. Supp. 2d 56, 65-66
(D.D.C. 2004) (citations omitted). This issue often
arises in suits against government defendants, where
sovereign immunity or other laws or doctrines may
preclude monetary relief. “While it is true that if a movant seeking a preliminary injunction will be unable
to sue to recover any monetary damages against a government agency in the future because of, among other
63a (D)
things, sovereign immunity, financial loss can constitute irreparable injury, the fact that economic losses
may be unrecoverable does not absolve the movant
from its considerable burden of proving that those
losses are certain, great and actual. . . . In other words,
the mere fact that economic losses may be unrecoverable does not, in and of itself, compel a finding of irreparable harm.” Nat’l Min. Ass’n v. Jackson, 768
F. Supp. 2d 34, 52-53 (D.D.C. 2011) (internal quotation marks and citations omitted) (emphasis in original).
This issue arose in Air Transp. Ass’n of Am., Inc. v.
Exp.-Imp. Bank of the U.S., 840 F. Supp. 2d 327
(D.D.C. 2012). In that case, plaintiffs argued that the
loss of business opportunities—similar to Save Jobs’
alleged injuries here—was unrecoverable against the
Export-Import Bank, and that “any damages in a suit
against a defendant with sovereign immunity are irreparable per se.” Id. at 335 (emphasis in original). As
the court explained, “not only is such a rule not the
law of this Circuit, but it would also effectively eliminate the irreparable harm requirement. Any movant
that could show any damages against an agency with
sovereign immunity—even as little as $1—would satisfy the standard. The wiser formula requires that the
economic harm be significant, even where it is irretrievable because a defendant has sovereign immunity.” Id. at 335-36 (citing cases where unrecoverable
economic loss alone was not enough to show irreparable harm). “Where a movant makes ‘a strong showing
that the economic loss would significantly damage its
business above and beyond a simple diminution in
profits,’ or demonstrates that the loss would ‘cause
64a (D)
extreme hardship to the business, or even threaten destruction of the business,’ irreparable harm may be established. For economic harm to constitute irreparable
injury, however, Plaintiffs must ‘adequately describe
and quantify the level of harm its members face.’” Id.
at 336 (citations omitted). See also ViroPharma, Inc.
v. Hamburg, 898 F. Supp. 2d 1, 26 (D.D.C. 2012)
(“‘[t]he mere existence of competition is not irreparable harm, in the absence of substantiation of severe
economic impact.’”) (quoting Wash. Metro. Area Tran.
Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 n.3
(D.C. Cir. 1977)).
This court concurs with the reasoning in Air
Transport Association and the other decisions in this
District that unrecoverable economic losses do not automatically constitute irreparable harm, but instead
must be sufficiently severe to warrant emergency relief. Like the plaintiffs in Air Transport Association,
the plaintiff here has failed to make such a showing.
Save Jobs has made no effort to quantify or even speculate as to the extent of its damages. Save Jobs does
not explain how many IT jobs may be taken by H-4
visa holders, how many of those jobs its members may
have sought themselves, what pay or benefits its members risk losing while the case is pending, or what
other harm its members may face. The court is left to
speculate as to the magnitude of the injury, and speculation is not enough to turn economic loss into irreparable harm.
65a (D)
iii. Imminent Harm
Save Jobs has also not shown that harm is imminent.
When the Rule takes effect on May 26, 2015, H-4 visa
holders will begin applying for employment authorization. These applications may take months to process,
and may be followed by months of job hunting until an
H-4 visa holder actually finds employment. There is
no clear indication when additional competition may
occur. Save Jobs has also not shown that the Rule will
have any imminent impact on H-1B visa holders. Because the Rule only applies to spouses of H-1B visa
holders that have already begun seeking legal permanent resident status, these H-1B holders have likely
already been in the U.S. for some time. There is no evidence that the Rule will imminently add to or impact
the overall pool of H-1B visa holders, meaning Save
Jobs has not presented sufficient proof that the harm
“is certain to occur in the near future.” Wis. Gas Co.,
758 F.2d at 674.
iv. Harm Beyond Remediation
Lastly, Save Job has not shown that the harm is “beyond remediation.” Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006). Should the court eventually rule in Save Jobs’
favor and invalidate the Rule, H-4 visa holders would
no longer be permitted to work in the U.S., thereby
eliminating the competition Save Jobs complains of.
This is exactly the position Save Jobs’ members would
be in with or without preliminary relief. While the
court may or may not be able to afford relief for any
possible damages which occur in the interim, as
66a (D)
discussed above, this is not dispositive with respect to
whether Save Jobs is entitled to a preliminary injunction. 3
b. Other Factors
The court need not address the other preliminary injunction factors in light of the movant’s failure to show
irreparable harm. See CityFed Financial Corp.,
58 F.3d at 747. Nevertheless, the court finds it worthwhile to briefly address the three remaining factors as
they reinforce its finding that a preliminary injunction
is unwarranted. Given the uncertainty of the “sliding
scale” approach in this Circuit after Winter, the court
will not opine on whether Save Jobs has shown a likelihood of success on the merits, except to say that it
would not have tipped the balance either way on the
sliding scale. DHS offers numerous arguments why
Save Jobs would not succeed on the merits, most notably on standing grounds, and Save Jobs has responded
3 Save Jobs contends that it would be easier to preserve the
status quo than to unwind the Rule once it goes into effect.
Whether or not this is correct has little impact on whether Save
Jobs has shown irreparable harm. See Nat’l Min. Ass’n, 768
F. Supp. 2d at 55 (“While the plaintiff’s assertion that a preliminary injunction ‘in this case will do nothing more than restore the
regulatory environment that existed prior to the unlawful application of the [disputed regulation] may be true, the fact remains
that the plaintiff has made an inadequate showing of irreparable
harm. The issuance of a preliminary injunction to ‘restore’ the
previously existing regulatory environment would not be in line
with the purposes of injunctive relief, as the ultimate inquiry
would still remain ‘whether there is a real and immediate threat
of repeated injury.’”) (citations omitted).
67a (D)
with non-frivolous arguments why its claims might
prevail. At this early stage, the court is not convinced
either party’s arguments significantly outweigh the
other such that it would have made a critical difference in the preliminary injunction analysis. As to the
balance of equities, both sides present compelling arguments. Save Jobs has an obvious interest in protecting its members from additional competition in an already crowded job market, particularly given the circumstances of their terminations from SCE. However,
DHS has a strong interest in moving ahead with a program years in the making, and the court is cognizant
of the difficulties DHS would face if the program were
delayed at this late date. Lastly, the public interest
factor does not favor either party. Whether American
workers and the U.S. economy are better served with
more or fewer foreign workers is a policy question the
court need not answer. In sum, not only has Save Jobs
not shown irreparable harm, but none of the remaining factors swing particularly in its favor.
IV. CONCLUSION
For the foregoing reasons, Save Jobs’ Motion for a Preliminary Injunction is denied. 4 An appropriate Order
accompanies this Memorandum Opinion.
4 The court notes that the foregoing analysis is not necessarily
dispositive with respect to issues that may arise later in the
case—particularly the certainty or imminence of Save Jobs’ injury-in-fact. See Belbacha v. Bush, 520 F.3d 452, 458 (D.C. Cir.
2008).
68a (D)
Date: May 24, 2015
TANYA S. CHUTKAN United States District Judge
69a
APPENDIX E
8 U.S.C. § 1101(a). Definitions.
***
(15) The term “immigrant” means every alien except
an alien who is within one of the following classes of
nonimmigrant aliens—
***
(H) an alien (i) (b) subject to section 1182(j)(2) of this
title, who is coming temporarily to the United States
to perform services (other than services described in
subclause (a) during the period in which such subclause applies and other than services described in
subclause (ii)(a) or in subparagraph (O) or (P)) in a
specialty occupation described in section 1184(i)(1)
of this title or as a fashion model, who meets the requirements for the occupation specified in section
1184(i)(2) of this title or, in the case of a fashion
model, is of distinguished merit and ability, and
with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the
intending employer has filed with the Secretary an
application under section 1182(n)(1) of this title, or
(b1) who is entitled to enter the United States under
and in pursuance of the provisions of an agreement
listed in section 1184(g)(8)(A) of this title, who is engaged in a specialty occupation described in section
1184(i)(3) of this title, and with respect to whom the
Secretary of Labor determines and certifies to the
70a (E)
Secretary of Homeland Security and the Secretary
of State that the intending employer has filed with
the Secretary of Labor an attestation under section
1182(t)(1) of this title, or (c) who is coming temporarily to the United States to perform services as a
registered nurse, who meets the qualifications described in section 1182(m)(1) of this title, and with
respect to whom the Secretary of Labor determines
and certifies to the Attorney General that an unexpired attestation is on file and in effect under section
1182(m)(2) of this title for the facility (as defined in
section 1182(m)(6) of this title) for which the alien
will perform the services; or (ii)(a) having a residence in a foreign country which he has no intention
of abandoning who is coming temporarily to the
United States to perform agricultural labor or services, as defined by the Secretary of Labor in regulations and including agricultural labor defined in
section 3121(g) of title 26, agriculture as defined in
section 203(f) of title 29, and the pressing of apples
for cider on a farm, of a temporary or seasonal nature, or (b) having a residence in a foreign country
which he has no intention of abandoning who is coming temporarily to the United States to perform
other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country, but this clause shall not
apply to graduates of medical schools coming to the
United States to perform services as members of the
medical profession; or (iii) having a residence in a
foreign country which he has no intention of abandoning who is coming temporarily to the United
States as a trainee, other than to receive graduate
71a (E)
medical education or training, in a training program
that is not designed primarily to provide productive
employment; and the alien spouse and minor children of any such alien specified in this paragraph if
accompanying him or following to join him; (Emphasis added)
8 U.S.C. § 1184 - Admission of nonimmigrants
(a) Regulations
(1) 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, including when he deems necessary the giving of a bond with sufficient surety in
such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the
expiration of such time or upon failure to maintain
the status under which he was admitted, or to maintain any status subsequently acquired under section
1258 of this title, such alien will depart from the
United States. No alien admitted to Guam or the
Commonwealth of the Northern Mariana Islands
without a visa pursuant to section 1182(l) of this title may be authorized to enter or stay in the United
States other than in Guam or the Commonwealth of
the Northern Mariana Islands or to remain in Guam
or the Commonwealth of the Northern Mariana Islands for a period exceeding 45 days from date of admission to Guam or the Commonwealth of the
Northern Mariana Islands. No alien admitted to the
United States without a visa pursuant to section
72a (E)
1187 of this title may be authorized to remain in the
United States as a nonimmigrant visitor for a period
exceeding 90 days from the date of admission.
8 U.S.C. § 1324a. Unlawful employment of aliens
***
(h) Miscellaneous provisions
***
(3) Definition of unauthorized alien
As used in this section, the term “unauthorized alien”
means, with respect to the employment of an alien at
a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this
chapter or by the Attorney General.
73a
APPENDIX F
Employment Authorization for Certain H-4
Dependent Spouses
80 Fed. Reg 10,283
Feb. 25, 2015
Agency:
U.S. Citizenship and Immigration Services, Department of Homeland Security.
ACTION:
Final rule.
SUMMARY:
This final rule amends Department of Homeland Security (DHS or Departmen) regulations by extending
eligibility for employment authorization to certain H-4
dependent spouses of H-1B nonimmigrants who are
seeking employment-based lawful permanent resident
(“LPR”) status. Such H-1B nonimmigrants must be
the principal beneficiaries of an approved Immigrant
Petition for Alien Worker (Form I-140), or have been
granted H-1B status in the United States under the
American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act.
DHS anticipates that this regulatory change will reduce personal and economic burdens faced by H-1B
nonimmigrants and eligible H-4 dependent spouses
during the transition from nonimmigrant to LPR status. The final rule will also support the goals of
74a (E)
attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses
resulting from H-1B nonimmigrants who choose not to
pursue LPR status in the United States. By providing
the possibility of employment authorization to certain
H-4 dependent spouses, the rule will ameliorate certain disincentives for talented H-1B nonimmigrants to
permanently remain in the United States and continue contributing to the U.S. economy as LPRs. This
is an important goal considering the contributions
such individuals make to entrepreneurship and research and development, which are highly correlated
with overall economic growth and job creation. The
rule also will bring U.S. immigration policies concerning this class of highly skilled workers more in line
with those of other countries that are also competing
to attract and retain similar highly skilled workers.
DATES:
This final rule is effective May 26, 2015.
FOR FURTHER INFORMATION CONTACT:
Jennifer Oppenheim, Adjudications Officer, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue NW., Suite 1100, Washington,
DC 20529-2140; Telephone (202) 272-1470.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
75a (E)
C. Summary of the Major Provisions of the Regulatory Action
D. Summary of Costs and Benefits
E. Effective Date
II. Background
A. Current Framework
B. Proposed Rule
C. Final Rule
III. Public Comments on Proposed Rule
A. Summary of Public Comments
B. Classes Eligible for Employment Authorization
1. Comments Supporting the Rule
2. Comments Requesting Expansion of
the Rule
3. Comments Opposing the Rule
4. Comments Requesting a More Restrictive Policy
C. Legal Authority To Extend Employment Authorization to Certain H-4 Dependent Spouses
D. Comments on the Analysis of Executive Orders 12866 and 13653
1. Comments Related to Labor Market
Impacts
2. Comments on the Volume Estimate
and Methodology
3. Comments on Specific Costs and Benefits Discussed in the Analysis
E. Comments on the Application for Employment Authorization
1. Streamlined or Modernized Filing Procedures
76a (E)
2. Employment Authorization Document
(Form I-766) Validity Period
3. EAD Renewals
4. Acceptable Evidentiary Documentation
5. Concurrent Filings
6. Premium Processing
7. Automatic Extensions of Work Authorization
8. Filing Fees
9. Possible Restrictions on EADs Issued
to H-4 Dependent Spouses
10. Circular EADs
11. Form I-765 Worksheets
12. Other Related Issues
F. Fraud and Public Safety Concerns
1. Falsifying Credentials and Marriage
Fraud
2. Prohibition Related to Felony Charges
and Convictions
3. Unauthorized Employment
4. Employer Abuse of H-1B Nonimmigrants and H-4 Dependent Spouses
G. General Comments
H. Modifications to the H-1B Program and Immigrant Visa Processing
1. H-1B Visa Program
2. Immigrant Visa Processing and Adjustment of Status
I. H-1B Nonimmigrant's Maintenance of Status
J. Environmental Issues
K. Reporting
L. Implementation
77a (E)
IV. Statutory and Regulatory Requirements
A. Unfunded Mandates Reform Act of 1995
B. Small Business Regulatory Enforcement
Fairness Act of 1996
C. Executive Orders 12866 and 13563
1. Summary
2. Purpose of the Rule
3. Volume Estimate
4. Costs
5. Benefits
6. Alternatives Considered
D. Regulatory Flexibility Act
E. Executive Order 13132
F. Executive Order 12988
G. Paperwork Reduction Act
V. Regulatory Amendments
I. Executive Summary
A. Purpose of the Regulatory Action
DHS does not currently extend eligibility for employment authorization to H-4 dependents (spouses and
unmarried children under 21 years of age) of H-1B
nonimmigrants. See 8 CFR 214.2(h)(9)(iv). The lack of
employment authorization for H-4 dependent spouses
often gives rise to personal and economic hardships for
the families of H-1B nonimmigrants. Such hardships
may increase the longer these families remain in the
United States. In many cases, H-1B nonimmigrants
and their families who wish to acquire LPR status in
the United States must wait many years for employment-based immigrant visas to become available.
These waiting periods increase the disincentives for
H-1B nonimmigrants to pursue LPR status and thus
78a (E)
increase the difficulties that U.S. employers have in
retaining highly educated and highly skilled nonimmigrant workers. These difficulties can be particularly
acute in cases where an H-1B nonimmigrant's family
is experiencing economic strain or other stresses resulting from the H-4 dependent spouse's inability to
seek employment in the United States. Retaining
highly skilled workers who intend to acquire LPR status is important to U.S. businesses and to the Nation
given the contributions of these individuals to U.S.
businesses and the U.S. economy. These individuals,
for example, contribute to advances in entrepreneurship and research and development, which are highly
correlated with overall economic growth and job creation.
In this final rule, DHS is amending its regulations
to extend eligibility for employment authorization to
certain H-4 dependent spouses of H-1B nonimmigrants to support the retention of highly skilled workers who are on the path to lawful permanent residence. DHS expects this change to reduce the economic burdens and personal stresses that H-1B
nonimmigrants and their families may experience
during the transition from nonimmigrant to LPR status while, at the same time, facilitating their integration into American society. As such, the change will
ameliorate certain disincentives that currently lead
H-1B nonimmigrants to abandon efforts to remain in
the United States while seeking LPR status, thereby
minimizing disruptions to U.S. businesses employing
such workers. The change will also support the U.S.
economy, as the contributions H-1B nonimmigrants
make to entrepreneurship and research and
79a (E)
development are expected to assist overall economic
growth and job creation. The rule also will bring U.S.
immigration policies concerning this class of highly
skilled workers more in line with those of other countries that compete to attract similar highly skilled
workers.
B. Legal Authority
The authority of the Secretary of Homeland Security
(Secretary) for this regulatory amendment can be
found in section 102 of the Homeland Security Act of
2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C.
112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize
the Secretary to administer and enforce the immigration and nationality laws. In addition, section
274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary's authority to extend employment to noncitizens in the United States.
C. Summary of the Major Provisions of This
Regulatory Action
On May 12, 2014, DHS published a notice of proposed
rulemaking, which proposed to amend DHS regulations at 8 CFR 214.2(h)(9)(iv) and 274a.12(c) to extend
eligibility for employment authorization to H-4 dependent spouses of H-1B nonimmigrants if the H-1B
nonimmigrants either: (1) Are the principal beneficiaries of an approved Immigrant Petition for Alien
Worker (Form I-140); or (2) have been granted H-1B
status pursuant to sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act
of 2000, Public Law 107-273, 116 Stat. 1758, as
amended by the 21st Century Department of Justice
80a (E)
Appropriations Act, Public Law 107-273, 116 Stat.
1758 (2002) (collectively referred to as “AC21”). See
Employment Authorization for Certain H-4 Dependent Spouses, 79 FR 26886 (May 12, 2014). After careful consideration of public comments, DHS is adopting
the proposed regulatory amendments with minor
wording changes to improve clarity and readability.[1]
Also, DHS is making additional revisions to 8 CFR
214.2(h)(9)(iv) and 8 CFR 274a.13(d) to permit H-4 dependent spouses under this rule to concurrently file an
Application for Employment Authorization (Form I765) with an Application to Extend/Change Nonimmigrant Status (Form I-539).
D. Summary of Costs and Benefits
In preparing this final rule, DHS updated its estimates of the impacted population by examining more
recent data, correcting data entry errors made in calculating the population of H-4 dependent spouses assumed to be in the backlog, and revising the estimate
of the population eligible pursuant to AC21. This final
rule is expected to result in as many as 179,600 H-4
dependent spouses being eligible to apply for employment authorization during the first year of implementation. As many as 55,000 H-4 dependent spouses will
be eligible to apply for employment authorization each
year after the first year of implementation. DHS
stresses that these are maximum estimates of the
number of H-4 dependent spouses who may become eligible to apply for employment authorization. Although the estimates are larger than those provided in
the preamble to the proposed rule, the initial year estimate (the year with the largest number of potential
81a (E)
eligible applicants) provided in this final rule still represents far less than one percent of the overall U.S.
workforce. DHS's rationale for this rule thus remains
unchanged, especially as the changes made in this
rule simply alleviate the long wait for employment authorization that these H-4 dependent spouses endure
through the green card process, and accelerate the
timeframe within which they generally will become eligible to apply for employment authorization (such as
when they apply for adjustment of status).
The costs associated with this final rule stem from
filing fees and the opportunity costs of time associated
with filing an Application for Employment Authorization, Form I-765 (“Application for Employment Authorization” or “Form I-765”), as well as the estimated
cost of procuring two passport-style photos. These
costs will only be borne by the H-4 dependent spouses
who choose to apply for employment authorization.
The costs to the Federal Government of adjudicating
and processing the applications are covered by the application fee for Form I-765.
DHS expects these regulatory amendments to provide increased incentives to H-1B nonimmigrants and
their families who have begun the immigration process to remain permanently in the United States and
continue contributing to the Nation's economy as they
complete this process. DHS believes these regulatory
changes will also minimize disruptions to petitioning
U.S. employers. A summary of the costs and benefits
of the rule is presented in Table 1.
Table 1—Total Costs and Benefits of Initial Employment Authorization for Certain H-4
Dependent Spouses 10-Yr Present Value Estimates at 3% and 7%
[$Millions]
Year 1 estimate
Sum of years 2-10
Total over 10-year pe(179,600 filers)
(55,000 filers annually) riod of analysis *
3% Discount
Rate:
Total Costs In$76.1
$181.3
$257.4
curred by Filers
@3%
7% Discount
Rate:
73.2
146.1
219.3
82a (E)
This rule is intended to remove a disincentive to pursuing lawful
permanent resident (LPR) status due to the potentially long wait for
employment-based immigrant visas for many H-1B nonimmigrants
and their family members. This rule will encourage H-1B nonimmigrants who have already taken steps to become LPRs to not abandon their efforts because their H-4 dependent spouses are unable to
work. By encouraging H-1B nonimmigrants to continue in their pursuit of becoming LPRs, this rule would minimize disruptions to petitioning U.S. employers. Additionally, eligible H-4 dependent spouses
who participate in the labor market will benefit financially. DHS
also anticipates that the socioeconomic benefits associated with permitting H-4 spouses to participate in the labor market will assist
H-1B families in integrating into the U.S. community and economy.
* Note: Totals may not sum due to rounding.
Qualitative Benefits
83a (E)
84a (E)
E. Effective Date
This final rule will be effective on May 26, 2015, 90
days from the date of publication in the Federal Register. DHS has determined that this 90-day effective
date is necessary to guarantee that USCIS will have
sufficient resources available to process and adjudicate Applications for Employment Authorization filed
by eligible H-4 dependent spouses under this rule
while maintaining excellent customer service for all
USCIS stakeholders, including H-1B employers, H-1B
nonimmigrants, and their families. With this 90-day
effective date, USCIS will be able to implement this
rule in a manner that will avoid wholesale delays of
processing other petitions and applications, in particular those H-1B petitioners seeking to file petitions before the FY 2016 cap is reached. DHS believes that
this effective date balances the desire of U.S. employers to attract new H-1B workers, while retaining current H-1B workers who are seeking employmentbased LPR status.
II. Background
A. Current Framework
Under the H-1B nonimmigrant classification, a U.S.
employer or agent may file a petition to employ a temporary foreign worker in the United States to perform
services in a specialty occupation, services related to a
Department of Defense (DOD) cooperative research
and development project or coproduction project, or
services of distinguished merit and ability in the field
of
fashion
modeling.
See
INA
section
101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b);
85a (E)
8 CFR 214.2(h)(4). To employ a temporary nonimmigrant worker to perform such services (except for
DOD-related services), a U.S. petitioner must first obtain a certification from the U.S. Department of Labor
(DOL) confirming that the petitioner has filed a labor
condition application (LCA) in the occupational specialty in which the nonimmigrant will be employed.
See 8 CFR 214.2(h)(4)(i)(B) and 8 CFR
214.2(h)(1)(ii)(B). Upon certification of the LCA, the
petitioner may file with U.S. Citizenship and Immigration Services (USCIS) a Petition for a Nonimmigrant Worker (Form I-129 with H supplements) (“H1B petition” or “Form I-129”).
If USCIS approves the H-1B petition, the approved H1B status is valid for an initial period of up to three
years. USCIS may grant extensions for up to an additional three years, such that the total period of the H1B nonimmigrant's admission in the United States
does not exceed six years. See INA section 214(g)(4), 8
U.S.C. 1184(g)(4); 8 CFR 214.2(h)(9)(iii)(A)(1), (3), and
8 CFR 214.2(h)(15)(ii)(B)(1). At the end of the six-year
period, the nonimmigrant generally must depart from
the United States unless he or she: (1) Falls within one
of the exceptions to the six-year limit; [2] (2) has
changed to another nonimmigrant status; (3) or has
applied to adjust status to that of an LPR.[3] See INA
sections 245(a) and 248(a), 8 U.S.C. 1255(a) and
1258(a); 8 CFR 245.1 and 8 CFR 248.1. The dependents (i.e., spouse and unmarried children under 21
years of age) of the H-1B nonimmigrants are entitled
to H-4 status and are subject to the same period of admission and limitations as the H-1B nonimmigrant.
See 8 CFR 214.2(h)(9)(iv).
86a (E)
For H-1B nonimmigrants seeking to adjust their status to or otherwise acquire LPR status through employment-based (EB) immigration, an employer generally must first file a petition on their behalf. See INA
section 204(a), 8 U.S.C. 1154(a). An H-1B nonimmigrant may seek LPR status under one of the following
five EB preference categories:
• First preference (EB-1)—Aliens with extraordinary
ability, outstanding professors and researchers,
and certain multinational executives and managers;
• Second preference (EB-2)—Aliens who are members of the professions holding advanced degrees or
aliens of exceptional ability;
• Third preference (EB-3)—Skilled workers, professionals, and other workers;
• Fourth preference (EB-4)—Special immigrants (see
INA section 101(a)(27), 8 U.S.C. 1101(a)(27)); and
• Fifth preference (EB-5)—Employment creation immigrants. See INA section 203(b), 8 U.S.C. 1153(b).
Generally, the second (EB-2) and third (EB-3) preference categories require employers to obtain an approved permanent labor certification from DOL prior
to filing an immigrant petition with USCIS on behalf
of the worker. See INA section 212(a)(5)(A), 8 U.S.C.
1182(a)(5)(A); 8 CFR 204.5(a). To apply for adjustment
87a (E)
to LPR status, the alien must be the beneficiary of an
immigrant visa that is immediately available. See INA
sections 201(a), 203(b) and (d), and 245(a); 8 U.S.C.
1151(a), 1153(b) and (d), 1255(a).
The EB-2 and EB-3 immigrant visa categories for
certain chargeability areas are oversubscribed, causing long delays before applicants in those categories,
including H-1B nonimmigrants, are able to obtain
LPR status. U.S. businesses employing H-1B nonimmigrants suffer disruptions when such workers are required to leave the United States at the termination of
their H-1B status as a result of these delays. To ameliorate those disruptions, Congress enacted provisions
in AC21 that allow for the extension of H-1B status
past the sixth year for workers who are the beneficiaries of certain pending or approved employment-based
immigrant visa petitions or labor certification applications. See S. Rep. No. 106-260, at 22 (2000) (“These
immigrants would otherwise be forced to return home
at the conclusion of their allotted time in H-1B status,
disrupting projects and American workers. The provision enables these individuals to remain in H-1B status until they are able to receive an immigrant visa
number and acquire lawful permanent residence
through either adjustment of status in the United
States or through consular processing abroad, thus
limiting the disruption to American businesses.”).
DHS cannot alleviate the delays in visa processing
due to the numerical limitations set by statute and the
resultant unavailability of immigrant visa numbers.[4] DHS, however, can alleviate a significant obstacle that may encourage highly skilled foreign workers to leave the United States,[5] thereby preventing
88a (E)
significant disruptions to U.S. employers in furtherance of the congressional intent expressed through
AC21.
B. Proposed Rule
On May 12, 2014, DHS published a proposed rule in
the Federal Register at 79 FR 26886, proposing to
amend:
• 8 CFR 214.2(h)(9)(iv) to extend eligibility for employment authorization to H-4 dependent spouses
of H-1B nonimmigrants if the H-1B nonimmigrants
either: are the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form
I-140); [6] or have been granted H-1B status pursuant to sections 106(a) and (b) of AC21; and
• 8 CFR 274a.12(c) by adding paragraph (26) listing
the H-4 dependent spouses described in revised 8
CFR 214.2(h)(9)(iv) as a new class of aliens eligible
to request employment authorization from USCIS.
Aliens within this class would only be authorized
for employment following approval of their Application for Employment Authorization (Form I-765) by
USCIS and receipt of an Employment Authorization Document (Form I-766) (“EAD”).
DHS also proposed conforming changes to Form I-765.
DHS proposed adding H-4 dependent spouses described in the proposed rule to the classes of aliens eligible to file the form, with the required fee. DHS also
proposed a list of the types of supporting documents
89a (E)
that may be submitted with Form I-765 to establish
eligibility.
DHS received nearly 13,000 public comments to the
proposed rule. An overwhelming percentage of commenters (approximately 85 percent) supported the
proposal, while a small percentage of commenters (approximately 10 percent) opposed the proposal. Approximately 3.5 percent of commenters expressed a mixed
opinion about the proposal.
C. Final Rule
In preparing this final rule, DHS considered all of the
public comments contained in the docket. Although estimates of the current population of H-4 dependent
spouses who will be eligible for employment authorization pursuant to this rule have changed, the effect
of the revision does not affect the justification for the
rule, and DHS is adopting the regulatory amendments
set forth in the proposed rule with only minor, nonsubstantive changes to 8 CFR 214.2(h)(9)(iv) to improve clarity and readability. These technical changes
clarify that an H-4 dependent spouse covered by this
rule should include with his or her Application for Employment Authorization (Form I-765) evidence demonstrating that he or she is currently in H-4 status and
that the H-1B nonimmigrant is currently in H-1B status. Also, in response to public comments regarding
filing procedures for Applications for Employment Authorization (Forms I-765) under this rule, DHS is
making conforming revisions to 8 CFR 214.2(h)(9)(iv)
and 8 CFR 274a.13(d) to permit H-4 dependent
spouses under this rule to concurrently file the Form
90a (E)
I-765 with an Application to Extend/Change Nonimmigrant Status (Form I-539).
The rationale for the proposed rule and the reasoning provided in its background section remain valid
with respect to these regulatory amendments. This final rule does not address comments seeking changes
in U.S. laws, regulations, or agency policies that are
unrelated to this rulemaking. This final rule also does
not change the procedures or policies of other DHS
components or federal agencies, or resolve issues outside the scope of this rulemaking. Comments may be
reviewed at the Federal Docket Management System
(FDMS) at http://www.regulations.gov,, docket number USCIS-2010-0017.
III. Public Comments on the Proposed Rule
A. Summary of Public Comments
In response to the proposed rule, DHS received nearly
13,000 comments during the 60-day public comment
period. Commenters included, among others, individuals, employers, academics, labor organizations, immigrant advocacy groups, attorneys, and nonprofit organizations. More than 250 comments were also submitted through mass mailing campaigns.
While opinions on the proposed rule varied, a substantial majority (approximately 85 percent) of commenters supported the extension of employment authorization to the class of H-4 dependent spouses described in the proposed rulemaking. Supporters of the
proposed rule agreed that it would help the United
States to attract and retain highly skilled foreign
workers; alleviate economic burdens on H-1B nonimmigrants and their families during the transition from
91a (E)
nonimmigrant to LPR status; and promote family
unity. Some supporters also stated that the rule furthers women's rights, noting the impact the rule's
change will have on promoting financial independence
for the H-4 dependent spouse, potentially reducing
factors which could lead to domestic violence, and assuaging negative health effects (such as depression).[7] Others voiced the belief that this rule aligns
with core U.S. values, asserting that employment authorization should be considered a constitutional or
human rights issue or an issue of equal opportunity.
Commenters commonly stated that if spouses are
authorized for employment, families would be more
stable, contribute more to their local communities, and
more fully focus on their future in the United States.
Additionally, commenters outlined ways they thought
this proposal would help the U.S. economy, such as by
increasing disposable income, promoting job creation,
generating greater tax revenue, and increasing home
sales. Several commenters agreed that extending employment authorization as described in the rule will
promote U.S. leadership in innovation by strengthening the country's ability to recruit and retain soughtafter talent from around the world. Finally, some commenters noted that this rule would facilitate U.S. businesses' ability to create additional U.S. jobs by improving the retention of workers with critical science, technology, engineering and math (STEM) skills.
The approximately 10 percent of commenters who
opposed the proposed rule cited to potential adverse
effects of the rule, including displacement of U.S.
workers, increasing U.S. unemployment, and lowering
of wages. Some commenters expressed concern that
92a (E)
the rule may negatively affect other nonimmigrant
categories. Other commenters were concerned that
this rule may cause the lowering of minimum working
standards in certain sectors of the economy, such as in
the Information Technology sector. Some commenters
questioned DHS's legal authority to promulgate this
regulatory change.
About 3.5 percent of commenters had a mixed opinion about the proposed regulation. Some of these commenters were concerned about the size and scope of
the class made eligible for employment authorization
under the rule; some argued that the described class
is too restrictive, while others argued that it is too
broad. Other commenters expressed concern about the
possibility of fraud. Approximately 200 commenters
(about 1.5 percent of commenters) submitted responses that are beyond the scope of this rulemaking,
such as comments discussing U.S. politics but not addressing immigration, submissions from individuals
who sent in their resumes or discussed their professional qualifications without opining on the proposed
rule, and comments on the merits of other commenter's views, but not on the proposed changes.
DHS has reviewed all of the public comments received in response to the proposed rule and addresses
relevant comments in this final rule. DHS's responses
are grouped by subject area, with a focus on the most
common issues and suggestions raised by commenters.
93a (E)
B. Classes Eligible for Employment
Authorization
1. Comments Supporting the Rule
The comments supporting the proposed rule largely
underscored the positive socioeconomic benefits this
rule would have for certain H-1B nonimmigrants and
their H-4 dependent spouses. For example, several
commenters noted that while they knew about the restriction on H-4 employment before coming to the
United States, they did not anticipate such a long wait
to apply for LPR status or the emotional toll that longterm unemployment would take on them and their
families. Other commenters noted they have not been
able to apply for a social security card or a driver's license in certain states because they do not have an
Employment Authorization Document (EAD) (Form I766). Approximately 200 commenters noted that the
current policy of allowing only the H-1B nonimmigrant to work often led to family separation or the decision to immigrate to other countries that authorize
employment for dependent spouses.
A few commenters described their families as dual
H-1B nonimmigrant households and supported the
principle of both spouses working. These commenters
voiced appreciation for the changes in the proposed
rule, which will allow the H-4 dependent spouse to
seek employment while the H-1B nonimmigrant continues to pursue permanent residence.
More than a thousand commenters believe this
change will help U.S. businesses retain highly skilled
H-1B nonimmigrants. More than 500 commenters asserted that the addition of skilled H-4 dependent
94a (E)
spouses into the workforce will help U.S. employers.
More than 60 commenters stated that they had
planned to move out of the United States, but will instead remain and pursue LPR status as a result of this
rule change. Approximately two dozen commenters
noted that they had already moved out of the United
States due to the prohibition on employment for H-4
dependent spouses. Several commenters stated that
they are planning to leave the United States in the
near future because H-4 dependent spouses cannot
work under the current rules.
Nearly 400 commenters who supported the final rule
also asserted that the regulation should be implemented without change as a matter of fairness. According to the comments, the regulation will help
H-1B nonimmigrants and their families who have
maintained legal status for years, contributed to the
economy, and demonstrated the intent to permanently
remain in the United States.
The overwhelmingly positive responses from the
public to the proposed rule has strengthened DHS's
view, as expressed in the proposed rule, that extending employment authorization eligibility to the class
of H-4 dependent spouses of H-1B nonimmigrants described in this rulemaking will have net beneficial results. Among other things, the rule will increase the
likelihood that H-1B nonimmigrants will continue to
pursue the LPR process through completion. DHS further believes that this rule will provide increased incentives to U.S. employers to begin the immigrant petitioning process on behalf of H-1B nonimmigrants,
encourage more H-1B nonimmigrants to pursue lawful permanent residence, and bolster U.S.
95a (E)
competitiveness. This rule will also decrease workforce disruptions and other harms among U.S. employers caused by the departure from the United States of
H-1B nonimmigrants for whom businesses have filed
employment-based immigrant visa petitions. This policy supports Congress' intent in enacting AC21. See
S. Rep. No. 106-260, at 2-3, 23 (2000).
A handful of commenters supporting the proposed
rule requested clarification on whether H-4 dependent
spouses will be permitted to file for employment authorization based on their classification as an H-4 dependent spouse if they have a pending adjustment of
status application. DHS confirms that under this rule,
H-4 dependent spouses with pending adjustment of
status applications are still eligible for employment
authorization on the basis of their H-4 classification.
They may choose to apply for employment authorization based on either the H-4 dependent spouse category established by this rule under new 8 CFR
274a.12(c)(26) or the adjustment of status category
under 8 CFR 274a.12(c)(9).
Another commenter asked if H-4 dependent spouses
of H-1B nonimmigrants who have extended their stay
under section 104(c) of AC21 would be eligible for work
authorization. DHS confirms that H-4 dependent
spouses of H-1B nonimmigrants who have extended
their stay under section 104(c) of AC21 are eligible for
employment authorization under this rule. Section
104(c) of AC21 applies to a subset of H-1B nonimmigrants who are the principal beneficiaries of approved
Form I-140 petitions.[8] Because this rule provides eligibility for employment authorization to H-4 dependent spouses of all H-1B nonimmigrants who are the
96a (E)
principal beneficiaries of approved Form I-140 petitions, it captures the section 104(c) subset. DHS has
thus determined that it is unnecessary to include section 104(c) of AC21 as a separate basis for employment
authorization eligibility in this rule.
2. Comments Requesting Expansion of the Rule
i. H-4 Dependent Spouses of H-1B1, H-2 and H-3
Nonimmigrants
Slightly over 200 commenters requested that DHS extend eligibility for employment authorization to the
H-4 dependent spouses of H nonimmigrants who are
not in H-1B status (H-1B1, H-2 and H-3 nonimmigrants), and not only to the spouses of certain H-1B
nonimmigrants who have begun the process of permanent residence through employment.[9] Some of these
commenters expressed that this expansion would also
help U.S. competitiveness by attracting more skilled
workers from abroad.
DHS has determined that expansion of employment
authorization beyond the class of H-4 dependent
spouses described in the proposed rule is not appropriate at this time, and it has therefore not included such
an expansion in this final rule. First, the Department
believes this rule best achieves DHS's goals of helping
U.S. employers minimize potential disruptions caused
by the departure from the United States of certain
highly skilled workers, enhancing U.S. employer's
ability to attract and retain such workers, and increasing America's economic competitiveness.
Second, DHS notes two significant differences between H-1B nonimmigrants and other H nonimmigrants under the immigration laws. The INA explicitly
97a (E)
permits H-1B nonimmigrants to have what is known
as “dual intent,” pursuant to which an H-1B nonimmigrant may be the beneficiary of an immigrant visa petition filed under section 204 of the INA or otherwise
seek LPR status without evidencing an intention to
abandon a foreign residence for purposes of obtaining
or maintaining H-1B status. See INA 214(h); see also
8 CFR 214.2(h)(16). Further, in enacting AC21, Congress permitted H-1B nonimmigrants who are the
beneficiaries of certain pending or approved employment-based immigrant visa petitions or labor certification applications to remain in the United States beyond the six-year statutory maximum period of stay.
Congress therefore has passed legislation specifically
encouraging, and removing impediments to, the ability of H-1B nonimmigrants to seek LPR status, such
that they may more readily contribute permanently to
United States economic sustainability and growth.
Congress has not extended similar benefits to other H
nonimmigrants, including H-1B1 (Free Trade Agreement specialty workers from Chile and Singapore),
H-2A (temporary agricultural workers), H-2B (temporary nonagricultural workers), or H-3 nonimmigrants
(trainees). Extending employment authorization to
certain H-4 dependent spouses of H-1B nonimmigrants, and not to H-4 dependent spouses of other H
nonimmigrants, thus serves to advance the Department's immediate interest in furthering the aims of
AC21.[10]
Finally, as noted in the proposed rule, DHS may consider expanding H-4 employment eligibility in the future. See Ctr. for Biological Diversity v. EPA, 722 F.3d
401, 410 (D.C. Cir. 2013) (observing that “`agencies
98a (E)
have great discretion to treat a problem partially'”)
(quoting City of Las Vegas v. Lujan, 891 F.2d 927, 935
(D.C. Cir. 1989)); Lamers Dairy Inc. v. U.S. Dep't of
Agric., 379 F.3d 466, 475 (7th Cir. 2004) (“[T]he government must be allowed leeway to approach a perceived problem incrementally. Similarly, equal protection does not require a governmental entity to choose
between attacking every aspect of a problem or not attacking the problem at all.”) (quotation marks omitted) (citing FCC v. Beach Commc'ns, 508 U.S. 307, 316
(1993); and Dandridge v. Williams, 397 U.S. 471, 487
(1970)).
ii. H-4 Dependent Spouses of All H-1B
Nonimmigrants
Over 150 commenters noted that all dependent
spouses of other nonimmigrant categories, such as the
spouses of L-1 (intracompany transferee), E-1 (treaty
trader), E-2 (treaty investor), and E-3 (Australian specialty occupation workers) nonimmigrants, are eligible to apply for employment authorization These commenters stated that because the employment-based
nonimmigrant categories are similar to each other, all
H-4 dependent spouses of H-1B nonimmigrants—rather than only certain subclasses of H-4 dependent
spouses—likewise should be eligible for employment
authorization.
DHS, however, recognizes an important difference
between the dependent spouse category of H-1B
nonimmigrants and those of L-1, E-1, E-2, and E-3
nonimmigrants. Specifically, Congress directed by
statute that DHS grant employment authorization to
all spouses of L-1, E-1, E-2, and E-3 nonimmi-
99a (E)
grants.[11] See Public Law 107-124 (2002) (amending
the INA to expressly authorize employment for
spouses of E nonimmigrants); Public Law 107-125
(2002) (same for spouses of L nonimmigrants); see also
INA section 214(c)(2)(E) & (e)(6), 8 U.S.C.
1184(c)(2)(E) & (e)(6). Congress has not provided such
statutory direction with respect to the spouses of H-1B
nonimmigrants. Thus, the fact that the INA authorizes dependent spouses of L and E nonimmigrants for
U.S. employment does not indicate that H-4 dependent spouses of all H-1B nonimmigrants also must be
authorized to work.
In extending such employment authorization
through regulation, DHS studied congressional intent
with respect to H-1B nonimmigrants. Although Congress has not specifically required extending employment authorization to dependent spouses of H-1B
nonimmigrants, Congress did recognize in AC21 the
importance of addressing the lengthy delays faced by
such workers seeking to obtain LPR status. Consistent
with this congressional concern, and the legal authorities vested in the Secretary of Homeland Security described in Section C, below, DHS has chosen to limit
this regulation within that statutory framework, and
the Department declines to extend the changes made
by this rule to the H-4 dependent spouses of all H-1B
nonimmigrants at this time.
iii. Employment Authorization Incident to
Status
Over 60 commenters requested that H-4 dependent
spouses be granted employment authorization “incident to status,” which would relieve the need to apply
100a (E)
for employment authorization before receiving it.
These commenters generally recommended that DHS
provide employment authorization incident to status
by authorizing the employment of H-4 dependent
spouses through amendment to 8 CFR 274a.12(a) instead of 8 CFR 274a.12(c), which provides employment
authorization through case-by-case, discretionary adjudications of each individual request.[12] For those
classes of aliens listed in 8 CFR 274a.12(a), employment authorization is automatic upon the grant of immigration status. Examples of classes of aliens who
are employment authorized incident to status under
8 CFR 274a.12(a) are LPRs, asylees, and refugees.
DHS is unable to classify H-4 dependent spouses described in this rule as employment authorized incident
to status. Unlike other noncitizens who are employment authorized incident to status, H-4 dependent
spouses will not be eligible for employment authorization based solely on their immigration status. Rather,
H-4 dependent spouses must meet certain additional
conditions before they can be granted employment authorization, and current USCIS systems cannot automatically and independently determine whether such
conditions have been met. USCIS systems, for example, cannot independently or automatically determine
whether an H-4 dependent spouse has the requisite
spousal relationship to an H-1B nonimmigrant who either is the beneficiary of an approved Form I-140 petition or has been granted H-1B nonimmigrant status
under sections 106(a) and (b) of AC21; that determination must be made by a USCIS adjudicator. DHS has
therefore determined that it must require the filing of
an application requesting employment authorization,
101a (E)
see 8 CFR 274a.12(c) and 8 CFR 274a.13, before it can
extend employment authorization to the class of H-4
dependent spouses described in this rule. This application process will ensure that only eligible H-4 dependent spouses receive a grant of employment authorization and proper documentation evidencing
such employment authorization, and will avoid granting employment authorization to ineligible spouses.
iv. Employment Authorization at Different
Points in Time
More than a dozen commenters requested that the
class of H-4 dependent spouses who are eligible for employment authorization be expanded by permitting
them to file at points in time different from those provided in the proposed rule. DHS carefully considered
these suggestions for determining when an H-4 dependent spouse should be eligible for employment authorization. For the reasons that follow, DHS has determined that it will not adopt the commenters' suggestions in this final rule.
(1) H-1B Nonimmigrants With Pending PERM
Labor Certifications or Form I-140 Petitions
Some commenters requested that DHS make H-4 dependent spouses eligible for employment authorization when their H-1B nonimmigrant spouses have
filed permanent (PERM) labor certifications with
DOL.[13] Other commenters suggested providing such
eligibility when H-1B nonimmigrants have Form
I-140 petitions or adjustment of status applications
pending with USCIS.
102a (E)
DHS believes that the basis for eligibility in the proposed rule reasonably addresses H-4 dependent spouses' interests in obtaining employment authorization at
the earliest possible time in advancing the Department's policy goals of attracting and retaining highly
skilled workers and promoting compliance with U.S.
immigration laws. In furtherance of these goals, DHS
has chosen to limit eligibility for employment authorization to cases where the H-1B nonimmigrant either:
(1) Is the principal beneficiary of an approved Form I140 and thus is on a path to lawful permanent residence that is reasonably likely to conclude successfully; or (2) has been granted H-1B status under sections 106(a) and (b) of AC21. This approach provides
several benefits to the Department.
Among other things, the approach allows DHS to
confirm a significant record of compliance with U.S.
immigration laws, which indicates the likelihood of
continued compliance in the future. Requiring an approved Form I-140 petition, for example, reduces the
risk of frivolous labor certification and immigrant visa
petition filings for the purpose of making H-4 dependent spouses eligible for employment authorization, because the approval of the petition generally signifies
that the foreign worker is eligible for the underlying
immigrant classification. In contrast, authorizing employment immediately upon the filing of a PERM application or Form I-140 petition (rather than after the
365-day waiting period or the approval of the Form I140 petition) could produce a reasonable possibility of
granting employment authorization to an H-4 dependent spouse where the H-1B nonimmigrant's case
103a (E)
might not be approvable and the H-1B nonimmigrant
has a relatively shorter record of compliance with U.S.
immigration laws. The eligibility requirements in this
rule also allow for better control of processing, as it is
difficult for USCIS to track another agency's filings,
such as PERM applications. Finally, with respect to
the comment suggesting that employment should be
authorized at the point when an adjustment of status
application is pending, Department regulations already provide eligibility for employment authorization
in that situation. See 8 CFR 274a.12(c)(9).
(2) H-1B Nonimmigrants Who Are Eligible for
AC21 Extensions Under Sections 106(a) and (b)
Some commenters expressed support for an alternative policy that would extend employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are eligible for, but have not yet been
approved for, extensions of status under sections
106(a) and (b) of AC21. DHS declines to adopt such a
policy because it creates the possibility of granting employment authorization to H-4 dependent spouses of
H-1B nonimmigrants who are later denied the extension of H-1B status. For instance, a labor certification
or Form I-140 petition may have been timely filed on
behalf of the H-1B nonimmigrant 365 days prior to the
prospective expiration of his or her six-year limitation
of stay, thus making the H-1B nonimmigrant eligible
for an extension under AC21. But the labor certification or Form I-140 petition ultimately may be denied
before the H-1B nonimmigrant files for and receives
the AC21 extension. Additionally, if the individual is
determined to be ineligible for the H-1B extension, he
104a (E)
or she would no longer be maintaining H-1B status
and the U.S. employer will be unable to retain the
worker. Accordingly, DHS believes the sounder policy
is to extend employment authorization to H-4 dependent spouses of H-1B nonimmigrants who have been
granted H-1B status pursuant to AC21, ensuring that
such H-1B nonimmigrants are maintaining H-1B status and are significantly down the path to obtaining
LPR status.
(3) Pending Form I-140 Immigrant Petitions
With New Employer
Fewer than a dozen commenters requested that DHS
extend employment authorization to H-4 dependent
spouses in cases where the H-1B nonimmigrants have
transferred their employment to a new employer and
are in the process of obtaining approval of a new Form
I-140 petition. As noted above, however, authorizing
employment based solely on the filing (rather than the
approval) of a PERM application or Form I-140 petition is likely to encourage frivolous filings to allow the
H-4 dependent spouse to obtain employment authorization while the filings remain pending. DHS thus is
not extending this rule on the basis of pending PERM
applications or Form I-140 petitions. By requiring that
a Form I-140 petition first be approved, DHS will further disincentivize frivolous filings and better serve
the goal of extending the immigration benefit of this
rule to only those spouses of H-1B nonimmigrants who
are genuinely on the path to lawful permanent residence.
105a (E)
v. H-4 Minors
Less than 40 commenters requested that DHS authorize employment for certain H-4 dependent minor children whose H-1B nonimmigrant parent is the beneficiary of an approved Form I-140 or has been granted
an extension of his or her authorized period of admission in the United States under AC21. These commenters cited concerns about H-4 dependent children
being unable to obtain the same types of work experience as their peers, being unable to afford post-secondary education in the United States, and losing eligibility for H-4 status through age (known as “aging-out”
[14]) before their parents can file for adjustment of status. Some commenters also raised fairness concerns,
given the eligibility under DHS deferred action policies that make eligible for employment authorization
certain individuals who came to the United States unlawfully as children under the age of 16.[15]
DHS declines to adopt the commenters' suggestions
to expand eligibility for employment authorization to
H-4 dependent minor children. As reflected by the
comments, DHS does not view the employment of dependent minor children in the United States as a significant deciding factor for an H-1B nonimmigrant
considering whether to remain in the United States
and seek LPR status while continuing employment
with his or her U.S. employer. Also, as stated in the
proposed rule, extending employment eligibility to certain H-4 dependent spouses will alleviate a significant
portion of the potential economic burdens that H-1B
nonimmigrants currently may face, such as paying for
academic expenses for their children, during the transition from nonimmigrant to LPR status as a result of
106a (E)
the inability of their dependent family members to
work in the United States.
Additionally, limiting employment authorization to
H-4 dependent spouses is consistent with the treatment of dependent minors in other nonimmigrant employment categories (such as the L and E nonimmigrant categories), which provide em
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