Petition for Writ of Certiorari — Save Jobs USA, Petitioner v. Department of Homeland Security, et al.
Supreme Court briefFeb 20, 2025
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No. _____
In the
Supreme Court of the United States
________________
SAVE JOBS USA,
Petitioner,
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY ET AL.,
Respondents.
________________
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
________________
PETITION FOR WRIT OF CERTIORARI
________________
JOHN M. MIANO,
COUNSEL OF RECORD
CHRISTOPHER J. HAJEC
Immigration Reform Law Institute
25 Massachusetts Ave, NW,
Suite 335
Washington, DC 20001
202-232-5590
jmiano@verizon.net
Counsel for Petitioner
i
QUESTIONS PRESENTED
1. Whether the Department of Homeland Security
can grant work authorization for classes of nonimmigrants for whom Congress has refused to grant work
authorization.
2. Whether the statutory terms defining nonimmigrant visas in 8 U.S.C. § 1101(a)(15) are mere threshold entry requirements that cease to apply once an alien is admitted or whether they persist and dictate the
terms of a nonimmigrant’s stay in the United States.
ii
PARTIES TO THE PROCEEDING
Petitioner is Save Jobs USA. Petitioner was Appellant in the court of appeals. Respondent is the U.S.
Department of Homeland Security. Intervenor Respondents are Anujkumar Dhamija and Immigration
Voice.
CORPORATE DISCLOSURE STATEMENT
Petitioner, Save Jobs USA has no shareholders.
STATEMENT OF RELATED
PROCEEDINGS
The proceedings directly related to this case are:
•
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
No. 23-5089, United States Court of Appeals for
the District of Columbia Circuit. Judgment
entered Aug. 2, 2024.
•
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
No. 23-22, United States Supreme Court.
Certiorari denied Oct. 30, 2023.
•
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
No. 15-CV-615, U.S. District Court for the District
of Columbia. Judgment entered Mar. 28, 2023.
•
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
No. 16-5287, United States Court of Appeals for
the District of Columbia Circuit. Judgment
entered Nov. 8, 2019.
•
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
No. 15-CV-615, U.S. District Court for the District
of Columbia. Judgment entered Sep 27, 2016.
iii
TABLE OF CONTENTS
Questions Presented .................................................... i
Parties to the Proceeding ........................................... ii
Corporate Disclosure Statement ................................ ii
Statement of Related Proceedings ............................. ii
Table of Authorities ................................................. viii
Petition for Writ of Certiorari ..................................... 1
Opinions Below ............................................................ 3
Jurisdiction .................................................................. 3
Statutes and Regulations Involved ............................. 4
Statement of the Case ................................................. 4
A. Legal Framework ....................................... 4
B. Factual Background ................................... 5
C. Proceedings Below ..................................... 7
Reasons for Granting the Petition ............................ 12
I. The D.C. Circuit’s reinterpretation of the
visa statutes is manifestly wrong and makes
the nonimmigrant visa system incoherent........... 12
A. Congress’s definition of a visa
should be the basis for defining the
terms of an alien’s stay in the United
States. ........................................................... 12
iv
B. The D.C. Circuit’s entry
requirement interpretation creates
absurdity. ...................................................... 15
C. The D.C. Circuit’s entry
requirement interpretation created a
split with the other circuits. ......................... 17
D. The D.C. Circuit’s judicially created
limit on DHS’s authority is
meaningless. ................................................. 20
II. This Court needs to settle the
exceptionally important question of whether
DHS shares with Congress the power to
authorize alien employment. ................................ 23
A. There is a circuit split over whether
DHS shares with Congress the
authority to authorize alien
employment................................................... 23
B. The failure to resolve the scope of
DHS’s alien employment power has
created a crisis. ............................................. 26
III. This case provides an excellent vehicle
to resolve exceptionally important issues. ........... 28
Conclusion.................................................................. 30
v
Appendix A
Opinion, United States Court of Appeals for
the District of Columbia Circuit, Save Jobs
USA v. U.S. Dep’t of Homeland Sec.,
No. 23-5089 (August 2, 2024) ....................... App-1
Appendix B
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) ................ App-9
Appendix C
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) ................ App-19
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 (September 27, 2016) ....... App-41
Appendix E
Order Denying Petition for Rehearing En
Banc (November 22, 2024) .......................... App-61
vi
Appendix F
Relevant Statutory Provisions .................... App-62
8 U.S.C. § 1101(a)(15)(h) ............................. App-62
8 U.S.C. § 1184(a) ........................................ App-64
8 U.S.C. § 1324a(h)(3) ................................. App-65
Appendix G
Employment Authorization for Certain H-4
Dependent Spouses,
80 Fed. Reg 10,283 (Feb. 25, 2015) ............. App-66
vii
TABLE OF AUTHORITIES
Cases:
Akbarin v. Immigr. & Naturalization Serv.,
669 F.2d 839 (1st Cir. 1982) ............................... 18
ABA v. FTC,
430 F.3d 457 (D.C. Cir. 2005) ............................. 14
Anwo v. INS,
607 F.2d 435 (D.C. Cir. 1979) ....................... 18–19
Birdsong v. Holder,
641 F.3d 957 (8th Cir. 2011) ............................... 18
Brewer v. Ariz. Dream Act Coal.,
583 U.S. 1179 (2018) ........................................... 26
Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984) ............................. 9, 20, 29–30
Dep’t of Homeland Sec. v.
Regents of the Univ. of Cal.,
591 U.S. 1 (2020) ................................................. 26
Elkins v. Moreno,
435 U.S. 647 (1978) ............................................. 18
FDA v. Brown & Williamson,
529 U.S., 120 (2000) ...................................... 29–30
Gazeli v. Session,
856 F.3d 1101 (6th Cir. 2017) ............................. 18
Hispanic Affairs Project v. Acosta,
901 F.3d 378 (D.C. Cir. 2018) ............................. 19
Immigr. & Naturalization Serv. v.
Nat’l Ctr. for Immigrants’ Rights,
502 U.S. 183 (1991) ............................................. 22
viii
Int’l Longshoremen’s &
Warehousemen’s Union v. Meese,
891 F.2d 1374 (9th Cir. 1989) ............................. 12
J. W. Hampton, Jr., & Co. v. United States,
276 U.S. 394 (1928) ............................................. 13
Jang v. Reno,
113 F.3d 1074 (9th Cir. 1997) ............................. 19
Khano v. Immigr. & Naturalization Serv.,
999 F.2d 1203 (7th Cir. 1993) ............................. 18
Lok v. Immigr. & Naturalization Serv.,
681 F.2d 107 (2d Cir. 1982) ................................ 18
Loper Bright Enters. v. Raimondo,
144 S. Ct. 2244 (2024) ..................................... 9, 29
Mistretta v. United States,
488 U.S. 361 (1989) ............................................. 13
Moreau v. Oppenheim,
663 F.2d 1300 (5th Cir. 1981) ............................. 19
Morel v. Immigr. & Naturalization Serv.,
90 F.3d 833 (3d Cir. 1996) .................................. 18
Moreno v. Univ. of Md.,
645 F.2d 217 (4th Cir. 1981) ............................... 18
United States v. Igbatayo,
764 F.2d 1039 (5th Cir. 1985) ............................. 18
Olaniyan v.
Dist. Dir., Immigr. & Naturalization Serv.,
796 F.2d 373 (10th Cir. 1986) ............................. 18
Sanchez v. Mayorkas,
141 S. Ct. 1809 (2021) ................................... 16, 19
ix
Save Jobs USA v.
U.S. Dep’t of Homeland Sec.,
210 F. Supp. 3d 1(D.D.C. 2016) ............................ 7
Save Jobs USA v.
U.S. Dep’t of Homeland Sec.,
942 F.3d 504 (D.C. Cir. 2019) ............................... 8
Texas v. Mayorkas, No. 23-40653,
slip op. (5th Cir. Jan. 17, 2025) .................... 25–26
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ............................... 25
Texas v. United States,
50 F.4th 498 (5th Cir. 2022) ............................... 26
Toll v. Moreno, 458 U.S. 1 (1982) .......................... 18
Touray v. United States AG,
546 F. App’x 907 (11th Cir. 2013)....................... 18
United States v. Texas,
579 U.S. 547 (2016) ....................................... 25–26
Von Kennel Gaudin v. Remis,
379 F.3d 631 (9th Cir. 2004) ............................... 18
Wash. All. of Tech Workers v.
U.S. Dep’t of Homeland Sec.,
50 F.4th 164 (D.C. Cir 2022)... 8–13, 16–25, 29–30
Wash. All. of Tech. Workers v.
United States Dep’t of Homeland Sec.,
58 F.4th 506 (D.C. Cir. 2023).............................. 10
Wei v. Robinson,
246 F.2d 739 (7th Cir. 1957) ............................... 19
x
West Virginia v. EPA,
597 U.S. 697 (2022) ....................................... 29–30
Util. Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) ....................................... 29–30
Statutes:
8 U.S.C. § 1101(a)(15) .............................................. 4
8 U.S.C. § 1101(a)(15)(B) .................................... 22
8 U.S.C. § 1101(a)(15)(F) .................................... 22
8 U.S.C. § 1101(a)(15)(F)(i) .......................... 8, 16
8 U.S.C. § 1101(a)(15)(I) ..................................... 22
8 U.S.C. § 1101(a)(15)(J) ..................................... 22
8 U.S.C. § 1101(a)(15)(K) .................................... 22
8 U.S.C. § 1101(a)(15)(H) ................. 4–5, 7, 12, 14
8 U.S.C. § 1101(a)(15)(M) ................................... 22
8 U.S.C. § 1101(a)(15)(O) .................................... 22
8 U.S.C. § 1101(a)(15)(P) .................................... 22
8 U.S.C. § 1101(a)(15)(Q) .................................... 22
8 U.S.C. § 1101(a)(15)(R) .................................... 22
8 U.S.C. § 1101(a)(15)(S)..................................... 22
8 U.S.C. § 1101(a)(15)(T) .................................... 17
8 U.S.C. § 1101(a)(15)(U) .................................... 22
8 U.S.C. § 1184(a) ..................................... 3, 9, 19–20
8 U.S.C. § 1255a(b)(3)(B) ......................................... 5
8 U.S.C. § 1324a(h)(3) .............. 3, 5, 9–10, 12, 23–25
8 U.S.C. § 1522 ......................................................... 5
xi
Regulations:
Employment Authorization for Certain H-4
Dependent Spouses,
80 Fed. Reg. 10,284–312 (Feb. 24, 2015)
................................... 2, 5–7, 11, 13, 15, 21, 25, 30
Extending Period of Optional Practical
Training by 17-Months for F-1
nonimmigrant Students with STEM
(Science, Technology, Mathematics, and
Engineering) Degrees and Expanding CapGap Relief for All F-1 Students with
Pending H-1B Petitions,
73 Fed. Reg. 18,944–56 (Apr. 8, 2008)................ 23
Improving and Expanding Training
Opportunities for F-1 Nonimmigrant
Students with STEM Degrees and CapGap Relief for All Eligible F-1 Students,
81 Fed. Reg. 13,040–122 (Mar. 11, 2016)
............................................. 6, 8, 10–11, 21, 23, 30
International Entrepreneur Rule,
82 Fed. Reg. 5,238–89 (Jan. 17, 2017) ...... 6, 23, 27
Other Authorities:
Br. for Amicus Curiae United States House
of Representatives, United States v. Texas,
136 S. Ct. 2271 (2016) (No. 15-674) .................... 24
Aurora mayor blames ‘bad’ Biden border
policies for Venezuelan gang problem,
Christian Post, Aug. 31, 2024 ............................. 28
xii
Humanitarian Parole Authority,
Congressional Research Service,
Jan. 11, 2024 ....................................................... 26
Judith Crown, Chicago’s migrant crisis
raises questions of equity,
Crane’s Chicago Business Feb. 20, 2024 ............ 28
Simon Hankinson, Biden’s border crisis
comes to the suburbs,
Fox News, Mar. 11, 2024 .................................... 28
H.R. Rep. No. 82-1365 (1952)................................. 22
Avery Kreemer, The federal programs that
paved the way for Springfield Haitian
influx, Dayton Daily News, Oct. 2, 2024 ............ 28
Neil Ruiz & Abby Budiman, Number of
Foreign College Students Staying and
Working in the U.S. After Graduation
Surges, Pew Research Center,
May 18, 2018 ....................................................... 30
Patrick Thibodeau, Southern California
Edison IT workers ‘beyond furious’ over
H-1B replacements, ComputerWorld,
Feb. 4, 2015 ........................................................... 7
S. Rep. No. 82-1137 (1952) ..................................... 22
City of Springfield, Immigration FAQs
https://web.archive.org/web/202412042322
23/https://springfieldohio.gov/immigrationfaqs/.................................................................. 7, 28
xiii
USCIS, Processes for Cubans, Haitians,
Nicaraguans, and Venezuelans,
https://web.archive.org/web/202412162242
01/https://www.uscis.gov/CHNV..................... 6, 27
1
PETITION FOR WRIT OF CERTIORARI
The bedlam in the immigration system is now one of
the top concerns of the nation’s citizens. Much of the
immigration chaos can be traced to America effectively
having two competing immigration systems operating
at cross-purposes: one created by Congress in the Immigration and Nationality Act (INA) and the other created with the blessing of the court below by the administrative state through regulation.
A key facet of the INA’s structure is how Congress
defines the classes of aliens who can work in the
United States and the protections for American workers that go with them. The general rule in the INA is
that aliens may not work in the United States, but
there are numerous provisions in the INA defining exceptions that allow classes of aliens to work (e.g., permanent residents). The power to define the classes of
aliens who can work in the United States is also the
power to determine the classes of aliens who have the
ability to remain in the United States indefinitely.
That power is vested in Congress.
In 2015, the Department of Homeland Security
(DHS) started creating alien work programs with no
express authorization in the INA under the claim that
the agency shares with Congress the power to define
who can work in the United States. Since then, DHS
has independently created massive programs permitting alien employment. These programs are effectively
a separate immigration system that subverts the alien
employment system put in place by Congress.
2
The regulation at issue here was the very first published under the claim of such shared authority. Employment Authorization for Certain H-4 Dependent
Spouses, 80 Fed. Reg. 10,284 (Feb. 25, 2015) (H-4
Rule) (Reproduced at App.66). The H-4 visa was created in 1970, and allows dependents of an H-category
nonimmigrant worker to accompany or join the worker
in the United States. Its definition contains no indication of work authorization, and for forty-five years the
executive interpreted it as not permitting work. With
the H-4 Rule, DHS reversed this interpretation and
began permitting certain spouses of H-1B nonimmigrant workers to be employed with no directive from
statute. Following the H-4 Rule, there was an explosion in the number of aliens authorized to work in the
United States entirely through regulations. These include the Optional Practical Training program (the
largest alien work program in the immigration system) and the Humanitarian Parole Program, under
which the executive granted parole and work permits
to 30,000 aliens per month from Cuba, Haiti, Nicaragua, and Venezuela.
The Fifth Circuit rejects DHS’s claim that it shares
with Congress the power to permit alien employment
through regulation. The D.C. Circuit has taken a different approach than the Fifth Circuit in a line of cases
holding that DHS does share with Congress the power
to permit alien employment. These cases transform
DHS from a regulatory body that is supposed to implement the immigration system defined by Congress
into a legislative body with the power to redefine the
3
immigration system. Under this transformation, the
D.C. Circuit has rendered the statutes governing
nonimmigrants nonsensical, and its eccentric interpretation of the INA has created splits with other circuits over (1) whether 8 U.S.C. § 1324a(h)(3) confers
on DHS shared authority with Congress to determine
classes of aliens eligible for employment; and
(2) whether the terms of the nonimmigrant visa statutes, 8 U.S.C. § 1101(a)(15), cease to apply the moment an alien enters the United States and 8 U.S.C.
§ 1184(a) confers on DHS the exclusive authority to
set the terms of a nonimmigrant’s stay while in the
country.
The Court should grant this Petition to resolve
whether Congress defines the structure of the immigration system or whether this is a power it shares
with DHS. Leaving this vital question unanswered
will ensure that the turmoil created by competing immigration systems will expand further.
OPINIONS BELOW
The D.C. Circuit’s opinion is published at 111 F.4th
76 and reproduced at App.1. The district court’s opinion is published at 664 F. Supp. 3d 143 and reproduced
at App.9.
JURISDICTION
The judgment of the court of appeals was entered on
August 2, 2024. App.1. A timely petition for rehearing
was denied on November 22, 2024. App.61. Jurisdiction was invoked in the district court under 28 U.S.C.
4
§§ 1331, 1346, and 1361. This Court’s jurisdiction is
invoked under 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS
INVOLVED
The statutes and regulations at issue are reproduced
in the appendix at App.62.
STATEMENT OF THE CASE
A. Legal Framework
The Immigration and Nationality Act of 1952 (INA)
established the current statutory immigration system.
At its core, the INA defines who can become a citizen,
who can come to and be in the United States, and who
can work in the United States. The INA classifies aliens as either immigrants or nonimmigrants. 8 U.S.C.
§ 1101(a)(15). Section 1101(a)(15) defines the classes
of nonimmigrant visas that allow aliens to come to the
United States temporarily for different purposes. The
name for a nonimmigrant visa is derived from its location within that section. Section 1101(a)(15)(H) (Reproduced at App.62) defines the H-1B, H-1B1, H-1C,
H-2A, H-2B, and H-3 guestworker visas. The last sentence of that provision defines the H-4 visa, created in
1970, that allows dependents of H nonimmigrant
workers to “accompany” or “join” the worker in the
United States. For forty-five years, the executive and
Congress treated this provision as not authorizing employment. The INA does not prohibit H-4 visa holders
from getting a work visa in their own right.
The general rule under the INA is that aliens may
5
not work in the United States. 8 U.S.C. § 1324a. The
INA has many exceptions to this general rule that authorize alien employment using three statutory constructs. First, the INA contains provisions that directly authorize classes of aliens to work. E.g., 8 U.S.C.
§ 1101(a)(15)(H) (App.62). Second, there are provisions that give the Department of Homeland Security
(DHS) discretionary authority to permit classes of aliens to work through regulation. E.g., 8 U.S.C. § 1522.
Third, there are provisions that require DHS to issue
regulations permitting classes of aliens to work. E.g.,
8 U.S.C. § 1255a(b)(3)(B).
B. Factual Background
The rule at issue was the very first published to authorize alien employment under the claim that the
term definition of unauthorized alien in section
1324a(h)(3) (Reproduced at App.65) conferred on DHS
shared power with Congress to allow classes of aliens
to be employed. Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284–312
(Feb. 24, 2015) (H-4 Rule) (reproduced at App.66). The
H-4 Rule permits spouses of H-1B nonimmigrant
workers who have entered the permanent residency
queue to work without restrictions. Id. at 10,284–85
(App.66–67). The purpose of the rule was to increase
the number of H-1B nonimmigrant workers by using
spousal employment as an inducement to stay in the
United States in competition with American workers.
Id. DHS estimated the H-4 Rule would initially grant
employment to 179,600 aliens and 55,000 each year
6
afterward. Id. at 10,286 (App.73). DHS stated that it
would consider expanding H-4 employment eligibility
in the future. Id. at 10,288 (App.90–91).
Since announcing its claim of having unlimited authority to permit alien employment, DHS has promulgated regulations authorizing several massive alien
employment programs entirely through regulation.
One example is the Optional Practical Training program that allows aliens to remain in the U.S. for years
after graduation and work in student visa status. Improving and Expanding Training Opportunities for
F-1 Nonimmigrant Students with STEM Degrees and
Cap-Gap Relief for All Eligible F-1 Students, 81 Fed.
Reg. 13,040–122 (Mar. 11, 2016) (OPT Rule). Optional
Practical Training is now the largest alien employment program in the immigration system, yet it was
created entirely through regulation. Optional Practical Training puts American college graduates in direct
competition with foreign workers for entry-level jobs.
Another example is the International Entrepreneur
Rule, 82 Fed. Reg. 5,238–89 (Jan. 17, 2017) that authorized alien employment for parolees. DHS morphed
that work authorization into the Humanitarian Parole
Program (created with no published regulation), under which DHS flew up to 30,000 aliens into the U.S.
per month, and granted them parole and work permits
(authorized entirely by regulation). 1 The town of
1 USCIS, Processes for Cubans, Haitians, Nicaraguans, and
Venezuelans, https://web.archive.org/web/20241216224201/
https://www.uscis.gov/CHNV
7
Springfield, Ohio (pop. 59,000 in 2020) now finds itself
having to provide services for 12,000–15,000 aliens
granted parole with work authorizations.2
C. Proceedings Below
Petitioner is a group of American technology workers who were among the 400 employed at Southern
California Edison until they were replaced by H-1B
nonimmigrants in 2015. See Patrick Thibodeau,
Southern California Edison IT workers ‘beyond furious’ over H-1B replacements, ComputerWorld, Feb. 4,
2015. Petitioner filed its complaint challenging the
H-4 Rule on Feb. 23, 2015. The complaint alleged that
granting employment to H-4 nonimmigrants exceeded
DHS’s authority to admit dependents to accompany or
join a nonimmigrant worker in the United States. See
8 U.S.C. § 1101(a)(15)(H) (App.62).
The District Court dismissed the case on standing
on summary judgment. Save Jobs USA v. U.S. Dep’t of
Homeland Sec., 210 F. Supp. 3d 1, 9 (D.D.C. 2016) (Reproduced at App.53). The district court held Petitioner
did not suffer injury from increased competition from
H-1B nonimmigrants under the H-4 Rule. App.54. On
appeal, the D.C. Circuit reversed and remanded, holding that the administrative record showed that the
H-4 Rule did cause injury by increasing the number of
H-1B workers who were in direct competition with Petitioner’s members. Save Jobs USA v. U.S. Dep’t of
2 City of Springfield, Immigration FAQs,
https://web.archive.org/web/20241204232223/
https://springfieldohio.gov/immigration-faqs/
8
Homeland Sec., 942 F.3d 504, 508–10 (D.C. Cir. 2019)
(Reproduced at App.19).
From this point, the case moved in parallel and became entwined with Wash. All. of Tech Workers v. U.S.
Dep’t of Homeland Sec., 50 F.4th 164 (D.C. Cir. 2022),
cert. denied 144 S. Ct. 78 (2023) (Washtech). Washtech
was a challenge to a later rule, also published under
the claim that DHS shared power with Congress to
permit alien employment. Improving and Expanding
Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All
Eligible F-1 Students, 81 Fed. Reg. 13,040–122
(Mar. 11, 2016) (OPT Rule). The OPT Rule allows aliens to remain in the U.S. and work in industry for
three years after graduation in student visa status. Id.
In holding that the OPT Rule was within DHS’s authority, the D.C. Circuit’s Washtech decision introduced never-before-seen judicial interpretations of the
INA. The statutory terms that restrict student visas
to those “solely” pursuing a course of study at an academic institution would appear to preclude employment in industry after graduation. 8 U.S.C.
§ 1101(a)(15)(F)(i). To overcome that restriction, the
D.C. Circuit held the nonimmigrant visa statutes only
“identif[y] entry conditions” that do not apply after an
alien enters the country.3 Washtech, 50 F.4th at 169,
3 Prior
to Washtech, there had been no dispute among the
courts (including the D.C. Circuit) that the nonimmigrant visa
statutes applied to an alien’s entire stay in the United States. See
§ I.C, infra.
9
185. To complete the transfer of power over nonimmigrants from Congress to DHS, the D.C. Circuit parsed
section 1184(a) (Reproduced at App.64) such that its
limitation on DHS’s authority (to regulate the legal
entry of nonimmigrants to “insure” aliens will leave
the country when they no longer conform to the status
for which they were admitted) only applied to DHS’s
bond authority. Id. at 170, 188. The D.C. Circuit held
that after nonimmigrants “[] have entered. Congress
gave [] control to the Executive.” Id. at 168; see also id.
at 170–71. Under this new interpretation, the nonimmigrant visa statutes merely provide nonbinding advice that “guides DHS in exercising its authority” to
make regulations. Id. at 178; see also id. at 170, 177–
78. Judge Henderson described this “tortured interpretation” of the statute as “verbicide.” Washtech,
50 F.4th at 200 (Henderson, J., dissenting).
Washtech also held that the definition of the term
unauthorized alien in section 1324a(h)(3) recognizes
that DHS shares with Congress the power to define
classes of aliens eligible for employment. Id. at 190.
Applying pre-Chevron 4 authorities, Washtech held
DHS regulations can allow employment on any visa,
with the only constraint being that such regulations
must be “reasonably related” to the visa’s statutory
definition. Id. at 169. Under this judicially created
4 The Washtech decision and District Court opinion in this case
did not arrive at their holdings under the Chevron, U.S.A., Inc. v.
NRDC, Inc., 467 U.S. 837 (1984) framework even though they
were issued prior to Chevron being vacated in Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
10
standard, a regulation can directly conflict with a
visa’s statutory terms but still be reasonably related
to it. Id. at 192. The D.C. Circuit never addressed
whether the OPT Rule conformed with the major question doctrine. Judge Rao observed that the Washtech
decision had tremendous consequences because it applied to all nonimmigrant visas. Wash. All. of Tech.
Workers v. U.S. Dep’t of Homeland Sec., 58 F.4th 506,
508 (D.C. Cir. 2023) (Rao, J., dissenting from denial of
Pet. for Reh’g en banc).
This case immediately proved Judge Rao to be correct. Briefing in the district court was completed a
year before the D.C. Circuit’s Washtech decision, so it
did not address Washtech’s holdings. See App.5 n.3.
Under the by-then-precedential Washtech, the statutory terms of the H-4 visa became strictly entry requirements that did not dictate whether DHS could
grant employment on that visa. Washtech, 50 F.4th at
192. The district court observed that Washtech held
that the question of whether an alien may work is
simply an admission condition just like the courses the
student must take. App.15. Neither the district court
nor Washtech observed that the INA has a general ban
on alien employment but lacks a general provision regarding coursework. 8 U.S.C. § 1324a. The district
court concluded that the power to define terms of admission “expressly contemplates DHS authorizing employment for foreign nationals.” Id. Following
Washtech, the district court did not consider whether
the terms of the H-4 visa authorized employment. The
district court applied the Washtech standard and held
11
unrestricted employment was reasonably related to
the H-4 visa and granted summary judgment to DHS.
App.24–25.
Save Jobs USA made a petition for certiorari before
judgment asking this Court to consolidate the case
with the pending petition in Washtech because both
cases addressed identical issues in the context of different visas. This Court denied both petitions. Wash.
All. of Tech. Workers v. Dep’t of Homeland Sec.,
144 S. Ct. 78 (2023); Save Jobs USA v. Dep’t of Homeland Sec., 144 S. Ct. 371 (2023).
Constrained by the precedent set in Washtech, Petitioner raised two issues on appeal. First, “Do regulations authorizing employment on H-4 visas without a
directive from Congress violate the major question
doctrine?” C.A. Op. Br. viii. The D.C. Circuit reinterpreted that question as “Save Jobs USA wants us to
displace Washtech because it did not address the major questions doctrine.” App.6. As with the OPT Rule
in Washtech, the D.C. Circuit never explained how the
H-4 Rule conformed to the major question doctrine.
Second, “Is unrestricted employment reasonably related to a nonimmigrant visa that allows entry to accompany or join a nonimmigrant worker whose employment is conditioned on protections for American
workers?” C.A. Op. Br. viii. Washtech held alien employment restricted to that directly related to the alien’s course of study was reasonably related to the
terms of the student visa. Washtech, 50 F.4th at 180.
Petitioner argued that unrestricted employment was
12
not reasonably related to “accompanying” or “following to join” a nonimmigrant worker in the United
States. 8 U.S.C. 1101(a)(15)(H). C.A. Op. Br. 10–13.
The D.C. Circuit held this raised no “meaningful distinction” with Washtech and affirmed the district
court. App.5.
REASONS FOR GRANTING THE
PETITION
I. The D.C. Circuit’s reinterpretation of the visa
statutes is manifestly wrong and makes the
nonimmigrant visa system incoherent.
A. Congress’s definition of a visa should be
the basis for defining the terms of an alien’s
stay in the United States.
Petitioner raised the issue that the statutory terms
of the H-4 visa do not permit employment in the district court. Sum. J. Br. 7. Until Washtech, courts had
always addressed the question of whether the executive had the power to publish a regulation authorizing
alien employment by looking at the statute defining
the terms of the alien’s stay in the United States. E.g.,
Int’l Longshoremen’s & Warehousemen’s Union v.
Meese, 891 F.2d 1374, 1380–84 (9th Cir. 1989). Historically, courts would have addressed this case by determining whether the power to admit aliens to “accompany” or “join” an H nonimmigrant worker in section
1101(a)(15)(H) overcomes the general prohibition on
alien employment in section 1324a. Cf. id. The D.C.
Circuit’s decision confers on DHS regulatory authority
13
over nonimmigrant visas that is untethered to the
statutes defining those visas. See App.5. Highlighting
that reality, in holding that DHS can permit employment on H-4 visas, the court of appeals never mentioned the terms of the H-4 visa. App.1–8. Neither the
district court nor the D.C. Circuit examined Congress’s H-4 visa terms because of the latter’s precedent
that relegates visa terms to only being entry requirements, Washtech, 50 F.4th at 170–71, that DHS can
disregard in regulation, id. at 185. This erroneous, circuit-splitting precedent, see § I.B–C, infra, was necessary to the decision below. If this case had instead
been decided under this Court’s and every numbered
circuit’s precedent, the H-4 visa terms would have
been recognized as operative—and it is clear that the
H-4 Rule does not implement them.
As this Court has repeatedly held, a delegation of
authority to an agency is invalid unless the delegating
statute contains an “intelligible principle” to which the
agency “is directed to conform.” Mistretta v. United
States, 488 U.S. 361, 372 (1989); J. W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 409 (1928). It follows, that if an agency purports to regulate5 without
5 On a theory of regulatory power derivable from Hampton—
viz., that regulatory power is a species of executive power, and is
exercised only when an agency carries out or executes a statute
by determining rights and obligations under the statute’s instructions—an agency that issues a substantive rule without following any such instructions (that is, without implementing a
statute) does not really regulate at all, but legislates as if it were
a second Congress.
14
implementing a statute—that is, without conforming
to a principle discernible in a statute—it exceeds its
power.
Here, the question arises of what it means to implement a statute or conform to a principle in it. It cannot
be merely that a regulation conforms to a statute if it
is logically consistent with it. For example, the D.C.
Circuit has rightly rejected the argument that a statute allowed the Federal Trade Commission to regulate
attorneys merely because the statute did not prohibit
it from doing so. ABA v. FTC, 430 F.3d 457, 468–69
(D.C. Cir. 2005). Manifestly, a stronger logical relation
than mere consistency is needed to capture the idea of
a regulation’s conforming to a principle and implementing a statute. Specifically, a regulation can be
said to implement a statute and conform to a principle
in it only if the statute entails that the regulation is
permissible—and entails this permissibility without
recourse to any premise that, just because the regulation is not prohibited by the statute, it is permitted by
it. In other words, if a regulation is to implement a
statute, the statute must not merely fail to prohibit
the regulation, but must affirmatively allow the regulation.
The principle discernible in the H-4 visa is that DHS
may allow the dependents of a H guestworkers to enter the country to accompany or join the worker. See
8 U.S.C. § 1101(a)(15)(H) (App.62). From this principle, it does not affirmatively follow that DHS may allow accompanying spouses to work. After all, Congress, without any contradiction, could pass another
15
law barring DHS from letting accompanying spouses
work, while still permitting DHS to allow H-4 nonimmigrants into the country. Because DHS could, with
logical consistency, be permitted to do the one (let
them in) but not the other (let them work), the former
permission does not imply the latter. This failure of
implication means that the visa definition does not affirmatively allow the H-4 rule. The H-4 Rule, therefore, does not conform to the visa definition and is ultra vires unless it implements the INA by conforming
to some other principle in that statute.
The court below appealed to no such other principle.
Instead, it held that the H-4 Rule conformed to the
reasonable relation standard, which does not appear
in the INA, and which the same court had invented in
Washtech, 50 F.4th at 169, 177. This Court should
grant certiorari to clarify the proper understanding of
implementing and conforming to a statute, and to hold
that agencies exceed their authority where (as here)
they purport to regulate without implementing a statute.
B. The D.C. Circuit’s entry requirement
interpretation creates absurdity.
The D.C. Circuit’s new interpretation of the structure of the INA is so irrational and has such a wide
impact that it cries out for this Court’s review. In
Washtech, the D.C. Circuit bent the law beyond the
breaking point to reach the outcome that DHS had the
authority to allow years of work in industry after grad-
16
uation by aliens in student visa status. This Court observed that “someone who legally entered the United
States on a student visa, but stayed in the country
long past graduation” would not be in “lawful status.”
Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021). To
reach its contrary outcome in Washtech, the D.C. Circuit had to overcome the statutory restriction that student visas are “solely” for aliens pursuing a course of
study at a school. 8 U.S.C. § 1101(a)(15)(F)(i). The
D.C. Circuit nullified that restriction by adopting the
never-before-seen interpretation that the statutory
terms of the nonimmigrant visa statutes are strictly
entry requirements that do not apply while an alien is
in the United States. Washtech, 50 F.4th at 170–71.
Once aliens enter the United States, the terms of their
stay are solely set by DHS regulations. Id. at 168, 170–
71, 178. Under this interpretation, DHS regulations
governing a visa do not have to conform to the statute
defining the visa because the statutes cease to apply
after an alien enters the country. Id. at 192–93. The
effect is that the D.C. Circuit “erases the INA’s very
specific requirements the moment an alien enters the
United States.” Wash. All. of Tech. Workers v. United
States Dep’t of Homeland Sec., 58 F.4th 506, 509
(2022) (Rao, J., dissenting from denial of reh’g en
banc).
The D.C. Circuit’s entry-requirement-only interpretation creates absurdity throughout the nonimmigrant visa system. The M-1 visa’s terms become nonsensical, with “no statutory constraint on who may
qualify for an M-1 visa.” Washtech, 50 F.4th at 202
17
(Henderson, J., dissenting). The statutory terms of the
T visa only apply to those who have already entered
the United States. 8 U.S.C. § 1101(a)(15)(T). Ridiculously under Washtech, the T visa’s terms cease to apply after entry so the visa terms never apply.
Washtech, 50 F.4th at 170–71. The D.C. Circuit’s interpretation of the visa statutes creates absurdity in
nearly every case when a change of visa status occurs
while an alien is in the United States because the new
visa’s terms never apply. Cf. Washtech, 50 F.4th at
170–71. For example, if one enters the country on a B
visitor visa, and changes status to an F-1 student visa
while in the United States, the student visa terms do
not apply at all because the alien already entered on a
B visa and the alien’s stay in the United States is only
governed by regulation. Id. The D.C. Circuit has effectively nullified Congress’s terms for nonimmigrant visas and blurred the distinctions among the various visas. Wash. All. of Tech. Workers v. DHS., 58 F.4th 506,
508 (D.C. Cir. 2023) (Rao, J., dissenting from denial of
reh’g en banc).
C. The D.C. Circuit’s entry requirement
interpretation created a split with the other
circuits.
Unsurprisingly, an interpretation as radical as reducing the frequently adjudicated nonimmigrant visa
statutes to mere entry requirements opened up a circuit split. Wash. All. of Tech. Workers v. DHS.,
58 F.4th 506, 508 (D.C. Cir. 2023) (Rao, J., dissenting
from denial of reh’g en banc). The entry-requirement-
18
only interpretation is contrary to precedent of this
Court and every numbered circuit, all of which treat
the statutory visa terms as applying to an alien’s entire stay.6 Toll v. Moreno, 458 U.S. 1, 14 n. 20 (1982);
Elkins v. Moreno, 435 U.S. 647, 665–66 (1978); Anwo
v. INS, 607 F.2d 435, 437 (D.C. Cir. 1979); Akbarin v.
Immigr. & Naturalization Serv., 669 F.2d 839, 840
(1st Cir. 1982); Lok v. Immigr. & Naturalization Serv.,
681 F.2d 107, 109 & n. 3 (2d Cir. 1982); Morel v. Immigr. & Naturalization Serv., 90 F.3d 833, 838
(3d Cir. 1996); Moreno v. Univ. of Md., 645 F.2d 217
(4th Cir. 1981), aff’d, 458 U.S. 1; United States v. Igbatayo, 764 F.2d 1039, 1040 (5th Cir. 1985); Gazeli v.
Session, 856 F.3d 1101, 1106 (6th Cir. 2017); Khano v.
Immigr. & Naturalization Serv., 999 F.2d 1203, 1207
& n. 2 (7th Cir. 1993); Birdsong v. Holder, 641 F.3d
957, 958 (8th Cir. 2011); Von Kennel Gaudin v. Remis,
379 F.3d 631, 637 (9th Cir. 2004); Olaniyan v. Dist.
Dir., Immigr. & Naturalization Serv., 796 F.2d 373,
374 (10th Cir. 1986); Touray v. United States AG,
546 F. App’x 907, 912 (11th Cir. 2013); see also
Washtech, 50 F.4th at 199 (Henderson, J., dissenting)
(noting Washtech’s conflict with precedent). Until the
D.C. Circuit invented the entry-requirement-only interpretation of the visa statutes, there had never been
any debate about whether those statutes applied to an
alien’s entire stay in the United States. Had Washtech
been a one-off aberration from precedent there might
be less of a need for supervisory review of the entry
6 Only the Federal Circuit has not weighed in on this issue.
19
requirement holding. The decision below, however,
demonstrates that Washtech now prevails over earlier
D.C. Circuit precedent applying nonimmigrant visa
terms after admission. E.g., Hispanic Affairs Project v.
Acosta, 901 F.3d 378, 389 (D.C. Cir. 2018); Anwo v.
INS, 607 F.2d 435, 437 (D.C. Cir. 1979).
Standing alone, the D.C. Circuit’s entry requirement
reinterpretation of the visa statutes would have left a
power vacuum, leaving no one setting the terms governing the conduct of nonimmigrants while in the
United States. To complete its transfer of power over
nonimmigrants from Congress to the administrative
state, the D.C. Circuit reinterpreted section 1184(a),
which defines DHS’s regulatory power over the entry
of nonimmigrants. App.2, App.5. Until this case and
Washtech, there had never been any dispute that section 1184(a) conferred on DHS the power to regulate
the admission of nonimmigrants. E.g., Sanchez v.
Mayorkas, 593 U.S. 409, 416–17 (2021). That power
was limited to “insur[ing]” that nonimmigrants leave
the country when they no longer conform to the status
for which they were admitted. E.g., Moreau v. Oppenheim, 663 F.2d 1300, 1307 (5th Cir. 1981); Wei v. Robinson, 246 F.2d 739, 742 (7th Cir. 1957); Jang v. Reno,
113 F.3d 1074, 1077 (9th Cir. 1997). The D.C. Circuit
filled the power gap left when its entry requirement
interpretation extirpated the visa statutes by parsing
section 1184(a) so that its “insure” limitation only applies to the power to require a bond, and handed to
DHS total and exclusive control to set the terms of a
nonimmigrant’s stay in the United States. App.2,
20
App.5 & n.3; Washtech, 50 F.4th at 168, 177, 188. The
D.C. Circuit demoted Congress’s terms for nonimmigrant visas to mere entry requirements while the
court elevated DHS’s authority to set terms for lawful
entry to being the sole authority “to set[ting] the ‘time’
and ‘conditions’ of visa-holders’ stay.” App.16 (quoting
Washtech, 50 F.4th at 190); App.5 & n.3.; see also
Wash. All. of Tech. Workers v. United States Dep’t of
Homeland Sec., 58 F.4th 506, 510 (2023) (Rao, J., dissenting from denial of reh’g en banc).
D. The D.C. Circuit’s judicially created limit
on DHS’s authority is meaningless.
The D.C. Circuit replaced Congress’s limitation on
the regulatory power given under 1184(a) with a judicially created standard based on pre-Chevron precedent. App.5; Washtech, 50 F.4th at 178–79. Under this
standard, DHS regulations may permit employment
on any visa where those regulations are reasonably related to the purpose for which the alien was allowed to
enter. 7 Id. Paradoxically, the D.C. Circuit permits
DHS regulations governing visas to directly contradict
their corresponding visa statute but still be reasonably related to that statute. Washtech, 50 F.4th at 169.
The effect is that the D.C. Circuit relegates the nonimmigrant visa statutes to serving solely as nonbinding
advice that “guides DHS in exercising its authority.”
7 The district court called the reasonably related standard a
“statutory requirement” even though it does not appear anywhere in the INA. App.22.
21
Id. at 178. This “tortured interpretation” is “verbicide.” Id. at 200 (Henderson, J., dissenting).
The decision below confirms that the reasonably related standard is no standard at all. Petitioner pointed
out to the D.C. Circuit the distinctions between work
under the H-4 Rule and the OPT Rule. C.A. Op. Br.
10–13. The OPT Rule restricts the type of post-graduation employment in industry to that directly related
to the alien’s course of study. Id. at 11. Such employment was held to be reasonably related to solely pursuing a course of study at an academic institution. Id.
In this case, the district court held that unrestricted
employment was reasonably related to the H-4 visa
that permits dependents to accompany or join a
nonimmigrant worker in the United States. App.23–
26. Addressing the difference Petitioner identified between the two work authorizations, the D.C. Circuit
answered that “Save Jobs USA makes little effort trying to meaningfully distinguish this case from
Washtech.” App.5. The D.C. Circuit’s holding that
there is no meaningful distinction between work directly related to a course of study and unrestricted
work is tantamount to an admission that the court has
conferred on DHS unbounded authority to permit alien employment in the United States through regulation.
The rapidly expanding regulatory-created immigration system is tearing down the distinction between
work and nonwork visas in the statutory immigration
system. The decision below immediately removes any
barrier against DHS permitting work on twelve more
22
visas that use the identical accompany or join language. 8 U.S.C. § 1101(a)(15)(F), (I)–(K), (M), (O)–(U).
It is hard to imagine where the decision prevents DHS
from permitting alien employment through regulation. It even opens the door to regulations permitting
work on visitor visas. See 8 U.S.C. § 1101(a)(15)(B).
The statutory prohibition against performing labor on
a visitor visa is strictly an entry requirement that
DHS can disregard after entry in the same manner as
the D.C. Circuit permits DHS to disregard the restriction that student visas are solely for pursuing a
course of study at a school. See Washtech, 50 F.4th
at 192. When work is reasonably related to accompanying or joining, it is impossible to see why work
would not be reasonably related to visitor visas that
allow
admission
for
business.
8 U.S.C.
§ 1101(a)(15)(B).
The INA created a comprehensive scheme for protecting American workers. H.R. Rep. No. 82-1365 at
50–51 (1952); S. Rep. No. 82-1137 at 11 (1952). Indeed,
protecting American workers is a primary purpose of
the immigration system. Immigr. & Naturalization
Serv. v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S.
183, 194 (1991). The D.C. Circuit leaves the INA’s explicit protections for American workers in ruins.
Whenever DHS disagrees with any worker protection
in the INA, it can use its unbounded power to allow
work through regulation to permit alien employment
without worker protections. When DHS decided the
limits on H-1B visas that Congress enacted to protect
American workers harmed business, it simply allowed
23
similar work by regulation to bypass those limits. Extending Period of Optional Practical Training by 17Months for F-1 nonimmigrant Students with STEM
(Science, Technology, Mathematics, and Engineering)
Degrees and Expanding Cap-Gap Relief for All F-1
Students with Pending H-1B Petitions, 73 Fed. Reg.
18,944–56, 18,946, 19,953 (Apr. 8, 2008); see also OPT
Rule, 81 Fed. Reg. at 13,040–122. Worse yet, the D.C.
Circuit’s entry-requirement-only interpretation of the
visa statutes opens the door for DHS to disregard explicit worker protections in the INA that are part of a
nonimmigrant visa’s terms in the same way that it allows DHS to disregard other terms of the visa statutes
as merely entry requirements.
II. This Court needs to settle the exceptionally
important question of whether DHS shares
with Congress the power to authorize alien
employment.
A. There is a circuit split over whether DHS
shares with Congress the authority to
authorize alien employment.
DHS claimed that 8 U.S.C. § 1324a(h)(3) (reproduced at App.65a) was the source of its authority to
independently authorize alien employment through
regulation in the H-4 Rule and subsequent similar
regulations. App.17; App.111–12; e.g., 81 Fed. Reg. at
13,045, 13,059 (OPT Rule); 82 Fed. Reg. at 5,239,
5,244–45 (International Entrepreneur Rule); 87 Fed.
Reg. at 53,186 n.151, 53,195, 53,197 n.183, 53,198–99
24
(DACA). Section 1324a(h)(3) defines the term unauthorized alien, which is those aliens that may not work
in the United States. An unauthorized alien is anyone
who is not “(A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by
this chapter or by the Attorney General [now Secretary of Homeland Security].” Id. The interpretation of
the last clause has been the subject of dispute in litigation over the past decade. The United States House
of Representatives endorsed the interpretation that
the “or by the Attorney General” clause in section
1324a(h)(3) “reflects nothing more than the unremarkable reality that work authorization sometimes
comes directly from a statute and other times must
come from the Attorney General, pursuant to statute.”
Br. for Amicus Curiae United States House of Representatives at 26, United States v. Texas, 136 S. Ct.
2271 (2016) (No. 15-674). The administrative state endorses the interpretation that “Congress, . . . defined
‘unauthorized alien’ in such fashion as to exclude aliens who have been authorized employment by the Attorney General through the regulatory process, in addition to those who are authorized employment by
statute.” Washtech, 50 F.4th at 191 (quoting Employment Authorization; Classes of Aliens Eligible,
52 Fed. Reg. 46,092, 46,093 (Dec. 4, 1987)); App.5.
These competing interpretations have created a circuit split. The Fifth Circuit adopted the United States
House of Representatives’ interpretation, holding that
section 1324a(h)(3) is just a term definition limited to
its own section that does not confer power on DHS.
25
Texas v. United States, 809 F.3d 134, 182–83 & n.185
& n.186 (5th Cir. 2015) aff’d by an equally divided
court 579 U.S. 547 (2016). The Fifth Circuit reaffirmed
that position in Texas v. Mayorkas, No. 23-40653, slip
op. (5th Cir. Jan. 17, 2025). The plaintiffs in Texas v.
Mayorkas argued that the regulation Deferred Action
for Childhood Arrivals, 87 Fed. Reg. 53,152–300 (Aug.
30, 2022) (DACA) exceeded DHS’s authority. DACA allows certain illegal aliens who arrived as children to
apply for discretion against enforcement and affirmatively grants such aliens work permits lacking any
statutory authorization. 87 Fed. Reg. at 53,298–300.
As with the H-4 Rule, DHS asserted in DACA that section 1324a(h)(3) conferred on it “authority for determining which noncitizens should be authorized for
employment.” 87 Fed. Reg. at 53,186 n.151, 53,195,
53,197 n.183, 53,198–99. Texas v. Mayorkas affirmed
the district court’s holding that DACA’s affirmative
grant of work permits exceeded DHS’s authority, rejecting the claim that section 1324a(h)(3) confers on
DHS shared authority with Congress to define classes
of aliens eligible for employment. slip op. at 30. The
Fifth Circuit’s interpretation directly conflicts with
the D.C. Circuit’s that section 1324a(h)(3) “acknowledges the Executive’s prerogative . . . to use powers
that do not expressly mention nonnationals’ work to
grant work authorization.” Washtech, 50 F.4th at 190;
App.5; App.16–19. Whether DHS may erase through
regulation Congress’s distinctions between aliens who
may work in the U.S. and those who may not “is a
question of exceptional importance.” Wash. All. of
26
Tech. Workers v. U.S. Dep’t of Homeland Sec., 58 F.4th
506, 508 (D.C. Cir. 2023) (Rao, J., dissenting from denial of reh’g en banc).
B. The failure to resolve the scope of DHS’s
alien employment power has created a crisis.
The question of whether DHS possesses shared
power with Congress to permit alien employment has
been brought to this Court repeatedly and undoubtably will continue to do so until it is resolved. E.g.,
United States v. Texas, 579 U.S. 547 (2016) (aff’d by an
equally divided court); Brewer v. Ariz. Dream Act
Coal., 583 U.S. 1179 (2018) (cert. denied); Dep’t of
Homeland Sec. v. Regents of the Univ. of Cal.,
591 U.S. 1 (2020) (aff’d on other grounds); Wash. All.
of Tech. Workers v. Dep’t of Homeland Sec., 144 S. Ct.
78 (2023) (cert. denied); Save Jobs USA v. Dep’t of
Homeland Sec., 144 S. Ct. 371 (2023) (cert. denied).
Coming up is more litigation over Deferred Action for
Childhood Arrivals (DACA). Texas v. Mayorkas,
No. 23-40653, slip op. (5th Cir. Jan. 17, 2025). That is
likely to be followed by litigation over parole. Humanitarian Parole Authority, Congressional Research Service, Jan. 11, 2024 at 3–4. The Fifth Circuit even noted
“‘the uncertainty of final disposition’” of the work authorizations under DACA. Texas v. Mayorkas, slip op.
at 38 (quoting Texas v. United States, 50 F.4th 498,
531 (5th Cir. 2022)). Until there is a definitive answer
from this Court on whether DHS can independently
authorize employment for classes of aliens through
regulation, the resulting chaos and uncertainty in the
27
immigration system will continue to grow.
The International Entrepreneur Rule, 82 Fed. Reg.
5,238–89 (Jan. 17, 2017) provides an instructive example of how work through regulation restructures the
immigration system to the detriment of the public.
The discretionary authority to grant parole under the
INA was intended to allow the executive to bypass the
immigration statutes for “emergency cases” or public
interest situations, such as a “witnessor for purposes
of prosecution.” S. Rep. 1173 at 13 (1952). Parole was
intended to provide a short-term period inside the
United States. Id. at 12. The International Entrepreneur Rule authorized parolees to be employed, even
those who were not entrepreneurs. 82 Fed. Reg
at 5,289. Six years later, parole was transformed into
the Humanitarian Parole Program (with no published
regulation) under which DHS flew 30,000 aliens a
month into the United States, and granted them parole and work permits under the International Entrepreneur Rule, creating an effectively open-ended
stay. 8 When parole is combined with a work permit
created by regulation, parole becomes an immigration
program because, as long as aliens can work in the
United States, they can afford to remain in the United
States. This regulatory transformation of parole has
subjected small communities to a huge influx of aliens
that the communities have to support with increases
8 USCIS, Processes for Cubans, Haitians, Nicaraguans, and
Venezuelans, https://web.archive.org/web/20241216224201/
https://www.uscis.gov/CHNV
28
in services. E.g., Avery Kreemer, The federal programs
that paved the way for Springfield Haitian influx,
Dayton Daily News, Oct. 2, 2024. Springfield, Ohio
had a population of 58,000 in 2020 but now has to support 12,000–15,000 parolees brought into the country.9
Such a regulatory-created immigration program that
has reshaped the immigration system is only possible
because of DHS’s shared power with Congress to permit work— recognized by the D.C. Circuit and rejected
by the Fifth Circuit. The resulting immigration crisis,
parading in full view of the public, urgently demands
this Court’s intervention. E.g., Judith Crown, Chicago’s migrant crisis raises questions of equity, Crane’s
Chicago Business Feb. 20, 2024; Simon Hankinson,
Biden’s border crisis comes to the suburbs, Fox News,
Mar. 11, 2024; Aurora mayor blames ‘bad’ Biden border policies for Venezuelan gang problem, Christian
Post, Aug. 31, 2024.
III. This case provides an excellent vehicle to
resolve exceptionally important issues.
This case presents an excellent vehicle for finally resolving the question of whether DHS shares with Congress the power to define classes of aliens eligible for
employment without the complication of enforcement
discretion, and outside a politically charged context.
This case also presents an excellent vehicle to issue
guidance on how agency authority is to be evaluated
9 City of Springfield, Immigration FAQs,
https://web.archive.org/web/20241204232223/
https://springfieldohio.gov/immigration-faqs/
29
post-Chevron. There was an expectation that this
Court’s elimination of Chevron deference to agency interpretations of statutes would curtail the out-of-control expansion of the administrative state. Loper
Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265
(2024). In Loper Bright, this Court observed that under Chevron, courts faced a “byzantine set of preconditions and exceptions” and were frequently not applying Chevron, as in both this case and Washtech. Id. at
2,269. These cases demonstrate how courts confer
power unimagined by legislators on agencies outside
the Chevron framework. The D.C. Circuit implausibly
finds that nullifying Congress’s terms governing
nonimmigrant visas and expanding DHS’s power to
set regulations governing admission into the sole
power to govern an alien’s stay in the United States is
the “‘best’ and ‘most straightforward reading of the
INA.’” App.4 n.2 (quoting Washtech, 50 F.4th at 192).
The radical reinterpretation of the INA “muddles our
immigration law” by “replacing Congress’s careful distinctions with unrestricted Executive Branch discretion,” thus raising “a question of exceptional importance.” Wash. All. of Tech. Workers v. DHS.,
58 F.4th 506, 508 (D.C. Cir. 2023) (Rao, J., dissenting
from denial of reh’g en banc).
Where does the major question doctrine fit in postChevron? West Virginia v. EPA, 597 U.S. 697 (2022).
Under the major question doctrine, “[w]e expect Congress to speak clearly if it wishes to assign to an
agency decisions of vast ‘economic and political significance.’” Util. Air Regulatory Grp. v. EPA, 573 U.S.
30
302, 324 (2014) (quoting FDA v. Brown & Williamson,
529 U.S. 120, 159 (2000). The H-4 Rule and the OPT
Rule are massive alien employment programs, with
the latter being the largest in the immigration system.
Neil Ruiz & Abby Budiman, Number of Foreign College Students Staying and Working in the U.S. After
Graduation Surges, Pew Research Center, May 18,
2018, p. 7. Such regulations should run headlong into
the major question doctrine and require “‘clear congressional authorization.’” West Virginia, 597 U.S. 697
at 723 (quoting Util. Air Regulatory Grp., 573 U.S.
at 324). While the D.C. Circuit endorses vast power
over alien employment implicitly conferred on DHS
through ancillary provisions, that court steadfastly refuses to explain how this power conforms to the major
question doctrine. App.6–7; see Washtech, 50 F.4th at
206 (Henderson, J. dissenting). This petition implicates the wider question of what principles should be
applied to claims of agency power post-Chevron. In
particular, are regulations limited to implementing a
statutory scheme, or can they alter the fundamental
structure of statutory systems?
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for certiorari.
31
Respectfully submitted,
JOHN M. MIANO
Counsel of Record
CHRISTOPHER J. HAJEC
Immigration Reform
Law Institute
25 Massachusetts Ave. NW
Suite 335
Washington, DC 20001
202-232-5590
jmiano@verizon.net
Counsel for Petitioner
February 2025
APPENDIX
i
TABLE OF CONTENTS
Appendix A
Opinion, United States Court of Appeals for
the District of Columbia Circuit, Save Jobs
USA v. U.S. Dep’t of Homeland Sec.,
No. 23-5089 (August 2, 2024) ....................... App-1
Appendix B
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) ................ App-9
Appendix C
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) ................ App-27
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 (September 27, 2016) ....... App-41
Appendix E
Order Denying Petition for Rehearing En
Banc (November 22, 2024) .......................... App-61
ii
Appendix F
Relevant Statutory Provisions.................... App-62
8 U.S.C. § 1101(a)(15)(h) ............................. App-62
8 U.S.C. § 1184(a) ........................................ App-64
8 U.S.C. § 1324a(h)(3) ................................. App-65
Appendix G
Employment Authorization for Certain H-4
Dependent Spouses,
80 Fed. Reg 10,283 (Feb. 25, 2015) ............. App-66
App-1
APPE NDIX A
No. 23-5089
United States Court of Appeals
for the
District of Columbia Circuit
Save Jobs USA v. U.S. Dep’t of Homeland Sec.,
111 F.4th 76 (D.C. Cir. 2024)
Decided August 2, 2024
Before: SRINIVASAN, Chief Judge, WILKINS and
WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge
WALKER.
WALKER, Circuit Judge: The Department of Homeland Security issued a rule that allows certain visa
holders to work in the United States. Save Jobs USA
challenged the rule, arguing that DHS exceeded its
authority under the Immigration and Nationality Act.
See 8 U.S.C. § 1101 et seq., see also 8 U.S.C.
§§ 1103(a)(3), 1184(a)(1).
But this court has already interpreted the relevant
provisions of the INA to answer a similar question in
favor of DHS. See Washington Alliance of Technology
Workers v. DHS, 50 F.4th 164 (D.C. Cir. 2022)
(“Washtech”). Because Save Jobs USA has not meaningfully distinguished this case from that binding
precedent, we affirm the district court’s grant of summary judgment.
App-2 (A)
I
The Immigration and Nationality Act includes two
provisions relevant to this case. The first is 8 U.S.C.
§ 1184(a)(1) — when an alien is admitted into the
country as a nonimmigrant, the admission “shall be
for such time and under such conditions as the [Secretary of Homeland Security] may by regulations prescribe.” The second is 8 U.S.C. § 1103(a)(3) — the Secretary of Homeland Security “shall establish such regulations . . . and perform such other acts as he deems
necessary for carrying out his authority under the”
INA. The upshot, according to our recent precedent, is
that Congress, through the INA, “granted the Executive power to set the duration and terms of statutorily
identified nonimmigrants’ presence in the United
States.” Washtech, 50 F.4th at 177.
Two related classes of “statutorily identified nonimmigrants” are specialized foreign workers (H–1B visa
holders) and their dependent spouses (H–4 visa holders). See 8 U.S.C. § 1101(a)(15)(H). H–1B holders are
allowed to work in the United States for up to six
years. But H–4 dependent spouses are generally not
permitted to work.
This can lead to problems for H–1B visa holders
seeking to become lawful permanent residents. See
Save Jobs USA v. DHS, 942 F.3d 504, 506-08 (D.C.
Cir. 2019) (outlining the process). Becoming a lawful
permanent resident can take years, and frequent processing delays require numerous extensions of time.
See id.
As for H–1B visa holders’ dependent spouses (the H–
4 visa holders), their “inability to work during these
App-3 (A)
delays leads to personal and economic hardships that
worsen over time, increasing the disincentives for H–
1B nonimmigrants to pursue lawful permanent resident status and thus increasing the difficulties that
U.S. employers have in retaining highly educated and
highly skilled nonimmigrant workers.” Id. at 507-08
(cleaned up).
In 2015, DHS promulgated a rule to address that situation, relying on the two INA provisions described
above. Its “H–4 Rule” allows select H–4 visa holders to
work in the United States while their H–1B spouses
transition to lawful permanent resident status. See
Employment Authorization for Certain H–4 Dependent Spouses, 80 Fed. Reg. 10,284, 10,311 (Feb. 25,
2015) (codified at 8 C.F.R. §§ 214.2, 274a.12, 274a.13)
(“H–4 Rule”); see also Save Jobs USA, 942 F.3d at 50708 (explaining the rule in detail). With the H–4 Rule,
DHS hopes to “ameliorate certain disincentives for talented H–1B nonimmigrants to permanently remain in
the United States and continue contributing to the
U.S. economy as” lawful permanent residents. 80 Fed.
Reg. 10,284, 10,284 (Feb. 25, 2015) (codified at 8
C.F.R. §§ 214.2, 274a.12, 274a.13).
Save Jobs USA challenged DHS’s authority to issue
the rule. See Save Jobs USA v. DHS, 664 F. Supp. 3d
143, 148-51 (D.D.C. 2023). The district court granted
DHS’s motion for summary judgment. See id. at 148
(citing Washtech, 50 F.4th at 164).1 Save Jobs USA appealed.
1 The district court initially held that Save Jobs USA lacked
standing and granted summary judgment to DHS. See Save Jobs
App-4 (A)
II
DHS says this court’s recent decision in Washtech
interpreted the Immigration and Nationality Act to
authorize immigration-related employment rules like
the H–4 Rule. Save Jobs USA makes little effort to dispute that reading of Washtech. We therefore affirm the
district court’s decision awarding summary judgment
to DHS.
A
Washtech reviewed an employment rule promulgated
by DHS pursuant to the INA. 50 F.4th at 169–72 (citing 8 U.S.C. § 1184(a)(1)). The rule allowed foreign
students (F–1 visa holders) who had completed their
coursework to work for a limited time to gain practical
training. Id. at 172 (citing 8 C.F.R. § 214.2(f)(5)(i),
(f)(10), (f)(11)). To support the rule, DHS relied on
§ 1184(a)(1) and § 1103(a) of the INA. Id. at 177, 179.
Washtech upheld the F–1 Rule for two key reasons relevant on this appeal.2
USA v. DHS, 210 F. Supp. 3d 1, 13 (D.D.C. 2016). Our court reversed and remanded. See Save Jobs USA, 942 F.3d at 512.
2 Washtech did not depend on Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), overruled
by Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).
True, Washtech applied Chevron as a counter-factual, fallback argument. See 50 F.4th at 192 (“even if [the INA] is ambiguous on
the point, the statute may reasonably be understood as the Department has read it”) (emphasis added); id. (“[e]ven if alternative readings are available”) (emphasis added). But that did not
alter Washtech’s holding that the “best” and “most straightforward reading of the INA” authorized the challenged rule. Id.
App-5 (A)
First, according to Washtech, § 1184(a)(1) “specifically provides” DHS with “time-and-conditions authority.” Id. at 190, 193. Because the F–1 Rule “regulates the ‘time’ and ‘conditions’ of admission for F–1
visa-holders, and because it is reasonably related to
the distinct composition and purpose of that visa class,
as defined in the F–1 provision, the Secretary had authority to promulgate it.” Id. at 177.
Second, according to Washtech, our precedents recognize “broad authority conferred upon DHS by sections 1184(a) and 1103(a).” Id. at 179 (cleaned up).
Washtech read those precedents to mean “that the INA
need not specifically authorize each and every action
taken by DHS, so long as its action is reasonably related to the duties imposed upon it.” Id. (cleaned up).
With that understanding, we turn to our case. Here,
DHS authorized certain nonimmigrants to work in the
United States — just like in Washtech. And to do so,
DHS relied on § 1184(a)(1) and § 1103(a) of the INA —
just like in Washtech.
Save Jobs USA makes little effort trying to meaningfully distinguish this case from Washtech. Instead,
it disparages Washtech, arguing that it “held that the
Immigration and Nationality Act confers on DHS the
vast power to permit alien employment through regulation through ancillary provisions that do not even
mention employment.” Save Jobs USA Br. at 16 (emphasis added).3
3 In the district court, Save Jobs USA did “not cite, much less
contest, the explicit statutory grant of time-and-conditions authority to DHS in 8 U.S.C. § 1184(a)(1).” Save Jobs USA, 664
F. Supp. 3d at 150. And on appeal, Save Jobs USA argues
App-6 (A)
As the end of that last sentence suggests, Save Jobs
USA disagrees with Washtech — and would like us to
overrule it. See id. at 10, 15, 16-17. But we “cannot
overrule a prior panel’s decision, except via an Irons
footnote or en banc review.” Robinson v. DHS Office of
Inspector General, 71 F.4th 51, 56 n.1 (D.C. Cir. 2023)
(cleaned up).4
B
Save Jobs USA wants us to displace Washtech because
it did not address the major questions doctrine. See
Save Jobs USA Br. at 8–10, 16–17; cf. Washtech,
50 F.4th at 206 & n.11 (Henderson, J., concurring in
part and dissenting in part) (raising major questions
doctrine concerns); Washington Alliance of Technology
Workers v. DHS, 58 F.4th 506, 508-11 (D.C. Cir. 2023)
(Rao, J., dissenting from the denial of rehearing en
banc). But that’s not how stare decisis works.
The major questions doctrine holds that courts “expect Congress to speak clearly if it wishes to assign to
an agency decisions of vast economic and political significance.” West Virginia v. EPA, 597 U.S. 697, 716
(2022) (cleaned up). Like a dictionary, or expressio
Washtech is inconsistent with past precedents, but does not name
any relevant to this case. See Save Jobs USA Br. at 16-17.
4 Last year, the court denied the petition for en banc review in
Washtech. Washington Alliance of Technology Workers v. DHS,
58 F.4th 506, 508 (D.C. Cir. 2023) (en banc); cf. Robinson, 71
F.4th at 56 n.1 (“In an Irons footnote, named after the holding in
Irons v. Diamond, 670 F.2d 265, 267-68 & n.11 (D.C. Cir. 1981),
the panel seeks for its proposed decision the endorsement of the
en banc court, and announces that endorsement in a footnote to
the panel’s opinion.”) (cleaned up).
App-7 (A)
unius, or the extraterritoriality canon, the major questions doctrine is a tool of statutory interpretation.
That’s true whether you think it’s a linguistic canon,
or a substantive canon with a constitutional basis
safeguarding the separation of powers, or both. Compare Biden v. Nebraska, 143 S. Ct. 2355, 2376-83
(2023) (Barrett, J., concurring), with West Virginia,
597 U.S. at 736–46 (Gorsuch, J., concurring). Regardless, the function of the major questions doctrine is
simple — to help courts figure out what a statute
means. And so far as today’s case is concerned,
Washtech has already done that.
To be sure, vertical stare decisis requires fidelity to
West Virginia when deciding any open question of
statutory interpretation. It also requires a circuit
panel to depart from a circuit precedent decided before
West Virginia if the circuit precedent’s reasoning was
later “eviscerated” by the reasoning in West Virginia.
Dellums v. U.S. Nuclear Regulatory Commission,
863 F.2d 968, 978 n.11 (D.C. Cir. 1988); see also
Bahlul v. United States, 77 F.4th 918, 925 (D.C. Cir.
2023) (“We may depart from the law of the case and
from circuit precedent . . . based on an intervening Supreme Court decision.”).
But Washtech was decided after West Virginia. So
the relationship between those two cases was
Washtech’s legal issue, not ours. And “if stare decisis
means anything, it means a future court lacks the authority to say a previous court was wrong about how it
resolved the actual legal issue before it.” Gibbons v.
Gibbs, 99 F.4th 211, 215 (4th Cir. 2024).
App-8 (A)
***
We affirm the district court.
So ordered.
App-9
APPE NDIX B
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.
App-10 (B)
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
App-11 (B)
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
App-12 (B)
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; 5 Def. First Summ. J.
Cross-Mot., ECF No. 27. The court denied Plaintiff’s
5 Plaintiff’s first motion for summary judgment was dismissed
without prejudice. See July 1, 2015 Minute Order.
App-13 (B)
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
App-14 (B)
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
App-15 (B)
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)).
App-16 (B)
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.
App-17 (B)
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.6
6 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
App-18 (B)
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.
App-19 (B)
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
App-20 (B)
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.”
App-21 (B)
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
App-22 (B)
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.
App-23 (B)
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-
App-24 (B)
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,
App-25 (B)
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,”
App-26 (B)
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
App-27
APPE NDIX C
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
App-28 (C)
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
App-29 (C)
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
App-30 (C)
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
App-31 (C)
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.
App-32 (C)
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.”
App-33 (C)
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
App-34 (C)
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
App-35 (C)
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
App-36 (C)
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
App-37 (C)
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
App-38 (C)
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
App-39 (C)
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
App-40 (C)
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.
App-41
APPE NDIX 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.,
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
App-42 (D)
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
App-43 (D)
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
App-44 (D)
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
App-45 (D)
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
App-46 (D)
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
App-47 (D)
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).
App-48 (D)
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
App-49 (D)
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
App-50 (D)
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, 7 or that even one H-4 visa
7 Plaintiff’s only evidence on this point is a quote from Leon
Rodriguez, director of the U.S. Citizenship and Immigration
App-51 (D)
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.
App-52 (D)
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. 8 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.
8 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).
App-53 (D)
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
App-54 (D)
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.
App-55 (D)
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.’”
App-56 (D)
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
App-57 (D)
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.9 The H-4 Rule was promulgated under this delegated authority, and DHS engaged in the
required notice-and-comment rulemaking procedures.
9 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.”).
App-58 (D)
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
App-59 (D)
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
App-60 (D)
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
App-61
APPE NDIX E
No. 21-5028
United States Court of Appeals
for the
District of Columbia Circuit
Save Jobs USA, Appellant
v.
U.S Department of Homeland Security, et al.,
Appellees [Filed] November 22, 2024
Before: SRINIVASAN, Chief Judge; HENDERSON,
MILLETT, PILLARD, WILKINS, KATSAS, RAO,
WALKER, CHILDS, PAN, and Garcia Circuit Judges.
ORDER
Upon consideration of appellant’s petition for rehearing en banc, the responses thereto, the amicus brief
filed by America First Legal Foundation, and the absence of a request by any member of the court for a
vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/ Daniel J. Reidy Deputy
Clerk
App-62
APPE NDIX F
Relevant Statutory Provisions
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
App-63 (F)
Secretary of Labor determines and certifies to the
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
App-64 (F)
States as a trainee, other than to receive graduate
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
App-65 (F)
United States without a visa pursuant to section
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.
App-66
APPE NDIX G
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
se
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