Petition for Writ of Certiorari — Programmers Guild v. Napolitano
Supreme Court brief2010
Ask Donna
What actually matters in this document.
Text
IN THE
Supreme Court of the United States
The Programmers Guild, Inc.; American Engineering
Association, Inc.; Bright Future Jobs; Michael
Amanti; Mark Blackburn; Toni L. Chester; David
Huber; John G. Marson; Harrison Picot, II; Paul E.
Polak; Mike Rothschild; Robert Sanchez; Stephen
Berry; and Stephanie M. Berry,
Petitioners,
v.
Janet Napolitano and United States Department of
Homeland Security,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Third Circuit.
PETITION FOR A WRIT OF CERTIORARI
BARNABY W. ZALL JOHN M. Miano
Counsel of Record GARRETT ROE
Weinberg & Jacobs, LLP Micuaet. HETHMON
11300 Rockville Pike, #1200 Immigration Reform Law
Rockville, MD 20852 Institute
(301) 231-6943 25 Massachusetts Ave. N.W.
bzall@aol.com Suite 335
Washington. DC 20001
November 13. 2009
1
QUESTION PRESENTED
Foreign students are admitted to the United
States under the “F-1” visa program “solely for the
purpose of pursuing ... a course of study.” 8 U.S.C.
§ 1101(a)(15)(F)G). In 1991, the Immigration and
Naturalization Service issued regulations permitting
“Optional Practical Training” (“OPT”) employment by
foreign students under terms intended to “avoid ad-
versely affecting the domestic labor market.” 56 Fed.
Reg. 55,610 (Oct. 29, 1991).
In 2008, after Congress had rejected similar mea-
sures to expand the OPT program, the Department
of Homeland Security issued an Interim Final Reg-
ulation which changes the OPT program so an esti-
mated 40,000 alien science, technology, engineering
and mathematics (“STEM”) graduates can remain
in the United States for up to 29 months as “foreign
students” while secking employment. 73 Fed. Reg.
18,944 (April 8, 2008). The U.S. Court of Appeals for
the Third Circuit held that American STEM workers
do not have standing to challenge the regulation be-
cause they are not within the zone of interests of the
foreign student visa provision.
The Question Presented is as follows:
Whether American science, technology, engineer-
ing and mathematics workers can challenge changes
to U.S. Department of Homeland Security regulations
which allow aliens in those fields to work in the Unit-
ed States for an extended period of time after gradua-
tion as “foreign students.”
ul
PARTIES TO THE PROCEEDINGS BELOW
All parties are named in the caption above. Peti-
tioners who were plaintiffs/appellants below are: The
Programmers Guild, Inc.; American Engineering As-
sociation, Inc.; Bright Future Jobs; Michael Amant};
Mark Blackburn; Toni L. Chester; David Huber; John
G. Marson; Harrison Picot, Il; Paul E. Polak; Mike
Rothschild; Robert Sanchez; Stephen Berry; and
Stephanie M. Berry.
Respondents who were defendants/appellees below
are: Janet Napolitano (who replaced Michael Chert-
off), Secretary of Homeland Security, and the United
States Department of Homeland Security.
The organizational Petitioners are nonprofit corp-
orations without stock and there are no parent corp-
orations or publicly-held corporations which own
stock in any of the Petitioners.
il
TABLE OF CONTENTS
Question Presented................c....scesseseeeees Hebe ap Apne ete ]
Parties to the Proceedings Below............................2. il
Table of Authorities ...... Soialenelgancueashaleiceraa tenn i eiis Vv
CHa TIE vices ccvesnseinevessengtvnecabiveccin SG ROSA D 1
Basis for Jurisdiction................ nic dcevetvuaumamenevenineeencen 1
Statutes and Regulations at Issue ....................... sce
BON oo os vcs cosas sacteascensnn CON RR Ream IPM rl 3
Peete: OE CR TOO sii sais secsceesiniseacivincstneecsenlovceans 6
Reasons to Grant the Petition................................. 18
I. The Decision Below Conflicts With the
Statutory Language, Congress’s Expressed
Intent, Respondents’ Prior Policy and Other
Circuits’ Longstanding Views on Worker
Protections in the F-1 Visa Statute and on
American Workers’ Ability to Challenge the
Admission of Foreign Workers Competing for
EINE IIIs. cidicavccccxctncencacasesccsieen eee 19
A. The Statutory Language of the Foreign
Student Program Permits Only Educational,
Not Employment, Activities .................. cic ae
B. Congress Has Long Been Concerned with
Labor Protections in F-1 Visas................... 21
C. Before 2008, Respondents Themselves Had
a Policy of Preserving American Jobs from
FORINT ak i. ss sidevapnvaesccsassccsevarsinnes 22
lV
D. The Third Circuit’s Opinion Conflicts with
Other Circuits Which Have Held that the
F-1 Student Visa Includes Protections for
PMT FOOT ONG .anoncccncencccescesscevcésccvcoevcesse 24
E.. The Third Circuit’s Opinion Conflicts with
Other Circuits Which Have Held that
American Workers Can Challenge the
Admission of Competing Alien Workers.... 24
SII Godin Sescpacavasscanedieaces snd ataciasaaeenasdackiusaious dest 29
Appendix A—Opinion of the Third Circuit
(July 17, 2009).......... js Gonceidebes abdvdnmmeiaaeddasieetestees la
Appendix B—District Court’s Dismissal Opinion
(Oct. 31, 2008) ............ Windlass cruntrabcevuacncudaatoaientice 13a
Appendix C—Denial of Preliminary Injunction
nS Se wang ieenaseceds 23a
Appendix D—Denial of Rehearing
OS GRRE a eat it eae a ene Ee OTE 35a
Appendix E—Student Visa Regulations Related
to Optional Practical Training...................... wes OEM
Appendix F—Optional Practical Training
Regulation Changes (April 8, 2008).................. 45a
Appendix G—First Amended Complaint
naa coe de soc ce pevaaumancpadss 97a
Appendix H—Chertoff Remarks ......................... 113a
Appendix I—Job Advertisements Seeking OPT
IE SCF so ata os cee ousnasearemetimedooeael 123a
Vv
TABLE OF AUTHORITIES
Cases
Ahmed v. United Siates,
BOO FG BEE CEG Cae. TO 7G) onc ivicnsnccesnsccesceccvssccescesses 22
Allen v. Wright,
Me Be FT ED wnenevctessccesessincess BR ie RA Di se sees 24
Clarke v. Securities Indus. Ass’n.,
ee isin ssc uc cinecicdcscinecenssennvavesonsnres 26
Digilab v. Sec’y of Labor,
MO Fe Be CUBE Ce. 1ST) qo cccccescccscecccesesscecveses. 18
Fed'n for Am. Immigration Reform v. Reno,
93 F.3d 897 (D.C. Cir. 1999)......... 16, 19, 25—26, 27
INS v. Nat'l Center for Immigrants’ Rights,
ec casvcivkcsiveccinudasnucnveseneuprs 18
Int'l Union of Bricklayers &
Allied Craftsman v. Meese,
761 F.2d 798 (D.C. Cir. 1985) ....... 16, 17, 19, 26-27
Int'l Longshoremen’s and Warehousemen’s Union uv.
Meese, 891 F.2d 1374 (9th Cir. 1989) .....0..000000.0... 18
Kirong v. Mukasey,
BS Fe BO COE Cie. BOD) oon accccccccccccnsesessseccecae 11
Karnuth v. United States,
Be ee I odio tccenendvscesseccarsccenesates epee 18
Londono v. INS,
433 F.2d 635 (2d Cir. 1970)........ SOSPT RESTS PR en ne 18
Medellin v. Bustos,
854 F.2d 795 (6th Cir. 1OGS) .........0...0c.cececcecnscc-cees 18
Patel v. INS,
811 F.2d 377 (7th Cir. 1986) ........................... 18, 24
Sure-Tan, Inc. v. NLRB,
ME He re CE cdo ccs cx coanecvecocesssennseuaices a ee 18
vi
Texas Learning Tech. Corp. v. Comm’,
96 T.C. 686 (Tax Court, 1991) .......................... me
United States v. Igbatayo,
7164 F.2d 10389 (5th Cir. 1985)........................... eet |
United States v. Oloyede,
GER F.Be LBS (40H Cir, LODS) ...........0ccccccseccesssccess0e. 21
Statutes and Legislative Materials
OER ORB 6) 16, 27
8 U.S.C. § 1101(a)(15)(F)(i)...................3, 8, 13, 20, 21
BUG. & LAD U AG IIGND) ...00..ccccccecccccccscccccecsccsess 3
es We FIED soicenssscacccensscces Ti: TNO ee acca okus 8
Be I acs vdsssnesvcccvvsesovoceocessisssavcosceavsces 12
Ee cig esccsvarsecssececesescocee sesrssseee, 8
B U.S.C. § 1184(n)(2Z)....ccceccccccccesesscccccccesescesesesesesceees 21
26 U.S.C. § 31210b)(19) o.ceccccccceccesceeeeeeeceeseees Deals 9
Immigration and Nationality Act of 1990,
Pub. L. 101-649, § 205, 104 Stat. 4978................... 3
Comprehensive Immigration Reform Act of 2006,
Bhs SIE © CPGee GMIIOGED occ ccccesccccccncesscorcscesseosessene 4
Comprehensive Immigration Reform Act of 2007,
Bo. RP Oee Co BOEE GMRIIOOED onc. s cecsesccssecsessscosvncosccesesces 4
H. Res. 558, “Grace Hopper National Computer
Science Education Weck,” Oct. 20, 2009,
___ Stat.__, 155 Cong. Rec. H11477
(daily ed. Oct. 20, 2009) .............. AS Pg oN Oa NO 6
H. R. Rep. No. 101-723 (1990) ..........-00+. 6, 7-8, 11, 21
Immigration Reform and Control Act of 1986,
Pub. L. 99-603, 100 Stat. 3359................ aN AR NAR 21
Regulations
8 C.F.R. § 214.2 (f)(2009) ......ccccceccccecceseseveeeeeeeeeseees ae
Vil
8 C.F.R. § 125.15(b) (1947) ...ccccceccececcecceceseeceeeeeereeeees 11
Extending Period of Optional Practical Training by
17-Months for F-1 nonimmigrant Students with
STEM (Science, Technology, Mathematics, and
Engineering) Degrees and Expanding Cap Gap
Relief for All F-1 Students with Pending H-1B
Petitions, 73 Fed. Reg. 18,944—56 (April 8, 2008)
(codified at 8 C.F.R. §§ 214, 274a)............... passim
Nonimmigrant Classes; Students, F and M
Classifications, 56 Fed. Reg. 55,608—11
(proposed Oct. 29, 1991) (codified at
8 C.F_R. §§ 214, 274a) ...-cccccccceeee- 11-12, 17, 22-23
Rules
Ne ey I ET ass ca cuarehnscicsceuchdavevaxenatateseneenertees 15
Fed. R. Civ. P. 12(b)(1)........ Boy Pee das OF 10, 14, 15
eRe eR Se reer 14,18
Other Authorities
Bureau of Labor Statistics, Occupational
Employment Statistics,
avatlable at http://www.bls.gov/oes .......... PERT? 8
Moira Herbert, Study: No Shortage of U.S.
Engineers, Businessweek, Oct. 28, 2009
available at http://www.businessweek.com/
bwdaily/dnflash/content/oct2009/
db20091027_723059.htam ...............0.ccssssceee spd eR et 7
Miriam Jordan, Slump Sinks Visa Program,
The Wall Street Journal, Oct. 30, 2009
available ai http://online.wsj.com/article/
$11266772667359 14549. Tt. .......cccccescesscccccesessess 3
vill
Norman Matloff, On The Need For Reform Of The
H-1B Non-Immigrant Work Visa In Computer-
Related Occupations,
36 Univ. Mich. J. L. Reform, 815............................ 7
Statement of William H. Gates, Chairman, Microsoft
Corporation, before the U.S. Senate Committee
on Health, Education, Labor & Pensions,
March 7, 2007, available at
http://help.senate.gov/Hearings/2007_03_07/
SN occ isovexcuncs iacaueeas SE Ree ; er
U.S. Citizenship and Immigration Service,
Characteristics of Specialty Occupation
Workers (H-1B): Fiscal Year 2006, Annual Report,
yoo. PERE OPE LSD Ree AT RT EOE RST OA Laren 8
U.S. Dept. of Education, ints of the Academic
Competitiveness Council (May 2007) available at
http://www.ed.gov/about/inits/ed/
competitiveness/acc-mathscience/report.pdf..........7
U.S. Dept. of Homeland Security, Press Release,
Remarks by Homeland Security Secretary Michael
Chertoff and Department of Commerce Secretary
Gutierrez at the State of Immigration Address,
(June 9, 2008) .............0000 5, 9-10, 12-13, 20-21, 23
U.S. Dept. of Labor, The STEM Workforce Challenge:
the Role of the Public Workforce System in a
National Solution for a Competitive Science,
Technology, Engineering, and Mathematics
(STEM) Workforce (2007) available at http://www.
doleta.gov/Youth_services/pdf/
STEM _ Report 4962007 di .............ccccccccccccssoccesssees 6
PETITION FOR A WRIT OF CERTIORARI
Petitioners are American science, technology, engi-
neering, and mathematics workers who respectfully
request that this Court issue a writ of certiorari to re-
view the decision and judgment of the United States
Court of Appeals for the Third Circuit denying them
an opportunity to challenge the regulations issued by
Respondents.
OPINIONS BELOW
The opinion of the United States District Court for
the District of New Jersey, filed on Oct. 31, 2008, is
unreported and reproduced below as Appendix B. The
opinion of the United States Court of Appeals for the
Third Circuit, filed on July 17, 2009, is unreported,
available at 2009 WL 2096292 (July 17, 2009), and
reproduced below as Appendix A. The Third Circuit’s
Order denying rehearing and rehearing en banc is un-
published and 1s reproduced below as Appendix C.
BASIS FOR JURISDICTION
A judgment of the court of appeals was entered on
July 17, 2009. A petition for rehearing was denied on
August 17, 2009. Jurisdiction was invoked in the dis-
trict court under 8 U.S.C. §§ 1331, 1346 and 1361,
and 5 U.S.C. § 706(2). The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS AT ISSUE
8 U.S.C. § 1101(a)(15)(F)(Q) (2009). Definitions
(a) As used in this chapter
(15) The term “immigrant means every alien except
an alien who is within one of the following classes of
nonimmigrant aliens
2
(I*)(i) an alien having a residence in a foreign coun-
try which he has no intention of abandoning, whois a
bona fide student qualified to pursue a full course of
study and who seeks to enter the United States tem-
porarily and solely for the purpose of pursuing such
a course of study consistent with section 1184(l) of
this title at an established college, university, semi-
nary, conservatory, academic high school, elementary
school, or other academic institution or in a language
training program in the United States, particularly
designated by him and approved by the Attorney
General after consultation with the Secretary of Edu-
cation, which institution or place of study shall have
agreed to report to the Attorney General the termina-
tion of attendance of cach nonimmigrant student, and
if any such institution of learning or place of study
fails to make reports promptly the approval shall be
withdrawn.
Relevant portions of the regulations at issue in this
case, 8 C.F_R. § 214.2(f), are reproduced as Appen-
dix E.
The Interim Final Notice at issue in this case,
8 C.F_R. §§ 214, 274a (Extending Period of Optional
Practical Training by 17-Months for F-1 nonimmi-
grant Students with STEM (Science, Technology,
Mathematics, and Engineering) Degrees and Expand-
ing Cap Gap Relief for All F-1 Students with Pend-
ing H-1B Petitions, 73 Fed. Reg. 18,944—56 (Apmil 8,
2008)), is reproduced as Appendix F.
INTRODUCTION
This case involves two of the principal ways in
which aliens can seek temporary employment in the
United States in science, technology, engineering or
mathematics (collectively known as “STEM” fields).
“Foreign students” with “F-1” visas’ can apply for an
administratively-created’? “Optional Practical Train-
ing” (“OPT”) program which allows them to work to
“further their educational objectives” and “prepare for
careers in their home countries.”*
In 1990, Congress created‘ a visa category, known
as “H-1B,”° which allows aliens in “specialty occupa-
tions” to work in the United States for up to six years.
Many thousands of F-1 foreign students, especially in
STEM fields, seek H-1B visas each year to remain in
the U.S.6
Congress limits the number of H-1B visas available
each year.' In some years, the H-1B program receives
many more applications than the number of available
visas, and applicants have their applications denied
or delayed.* This is not true in the current Fiscal Year.
Miriam Jordan, Slump Sinks Visa Program, The Wall
Street Journal, Oct. 30, 2009 (“thousands of spots un-
filled for the first time since 2003”).
Some American employers proposed an increase in
the H-1B annual visa availability limit and an expan-
'8 U.S.C. § 1101(a)(15)(F)(G) (2009).
78 C.F.R. § 214.2(f)(10)(i1)(A) (ia) (2009).
556 Fed. Reg. 55,611 (Oct. 29, 1991).
‘ Immigration and Nationality Act of 1990, Pub. L. 101-649,
§ 205, 104 Stat. 4978.
58 USC. § 1101(a)(15)(H))(b) (2009)
" App 5la; 73 Fed. Reg. 18,946.
“8 U.S.C. § 1184(g) (2009).
* App. 52a—53a; 73 Fed. Reg. 18,946.
sion of the OPT program to allow foreign students to
work for up to 24 months after graduation.’ Despite
four opportunities to do so in 2006 and 2007, Congress
did not enact either change."®
In April, 2008, the Respondents—-expressly citing
employer requests, Congressional inaction and the
need to address the then-over-subscribed H-1B quo-
ta''—admunistratively expanded the OPT program to
provide a 29-month work period to STEM graduates
and authorization to remain in the U.S. while unem-
ployed.'* The expansion of OPT ignored any F-1 visa
category requirements that the “foreign students” be
“bona fide students” in the United States “solely” to
pursue a “course of study,”'* and Respondents’ own
prior regulatory requirements that OPT employment
be to “further their educational objectives” and to pre-
pare for “careers 1n their home countries.”"
This expansion created, by regulation, a new visa
category for foreign student STEM graduates, who
have up to 29 months to seek employment or work
* Statement of William H. Gates, Chairman, Microsoft Corpo-
ration, before the U.S. Senate Committee on Health, Education,
Labor & Pensions, March 7, 2007 (‘Statement of Bill Gates”),
available at http://help senate .gov/Hearings/2007_03_07/Gates
'© See Comprehensive Immigration Reform Act of 2007, S. 1348
(110th Congress), § 507, 153 Cong. Rec. 87,271-—313, S7,279 (dai-
ly ed. June 7, 2007); Id., 153 Cong. Rec. at 87,313; Comprehen-
sive Immigration Reform Act of 2007, S. 1639 (110th Congress),
§ 418, 153 Cong. Rec. S8,641-51 (daily ed. June 28, 2007); Com-
prehensive Immigration Reform Act of 2006, S. 2611 (109th Con
gress) § 507, 152 Cong. Rec. S$5,135-91 (daily ed. May 25, 2006).
'' App. 52a; 73 Fed. Reg. 18,946.
2 App. F; 73 Fed. Reg. 18,944—56.
‘38 U.S.C. § 1101(a)(15)(F)(i) (2009)
'4 56 Fed. Reg. 55,610-11
5
visas to remain in the United States. The new cat-
egory is expressly intended to bridge the “gap” be-
tween F-1 foreign student and H-1B foreign worker
programs by keeping “students” “in place doing pro-
ductive work while they are awaiting the work visa
process.”'® There is no express statutory authoriza-
tion for this new “bridge” visa program.
This case asks whether, after Congress refuses to
do so, a federal agency may reverse long-standing fed-
eral policy on foreign students’ employment to permit
an estimated 40,000 aliens who have completed their
STEM education to remain in the United States as
“foreign students” so that they can compete for jobs
against American STEM workers. This Petition asks
whether American STEM workers have standing
to challenge the expanded OPT regulations and the
29-month-long “bridge” between foreign student and
alien worker statuses. The courts below dismissed this
challenge because they felt that the American STEM
workers were not within the “zone of interests” of the
immigration laws, as evidenced by the fact that the
F-1 visa provision does not include express American
worker protection language.
The Third Circuit’s holdings below conflict with
those of this Court and other Circuits. The Third Cir-
cuit held that Congress was not “concerned” about
protecting American workers in the foreign student
visa provisions, even though Congress, Respondents
and other Circuits have long recognized that foreign
'S App. 60a; 73 Fed. Reg. 18,948.
‘6 U.S. Dept. of Homeland Secunty, Press Relese, Remarks
by Homeland Security Secretary Michael Chertoff and Depart-
ment of Commerce Secretary Gutierrez at the State of Immigra-
tion Address (June 9, 2008) (“Chertoff Remarks”), reprinted in
App. H. at App. 114a.
6
students’ employment should be primarily tied to
their educational programs and should not affect the
American labor market. In addition, the Third Cir-
cuit held that worker protections must be explicit in
the immigration law, which conflicts with decades of
law recognizing that American workers can challenge
the admission of foreign workers. The decision below
weakens the protections Congress intended in the
immigration laws, and limits the ability of American
workers to block ultra vires regulations which affect
them.
STATEMENT OF THE CASE
Science, technology, engineering and mathematics
(“STEM”) workers are vital to the American econo-
my.'’ It 1s federal policy that STEM jobs should be
filled by American STEM workers.'®
'7 U.S. Dept. of Labor, The STEM Workforce Challenge: the
Role of the Public Workforce System in a National Solution for
a Competitive Science, Technology, Engineering, and Mathemat-
ics (STEM) Workforce (2007); H. Res. 558, “Grace Hopper Na-
tional Computer Science Education Week,” Oct. 20, 2009, ___
Stat. _, 155 Cong. Rec. H11477 (daily ed. Oct. 20, 2009): “The
legislature finds that the economic well-being of Texas and the
United States, including our competitiveness in national and
world markets, is increasingly dependent on technology and will
require a citizenry that possesses general and specific skills in
mathematics, science, computer science, and related technolog1-
cal subjects.” Texas Learning Tech. Corp. v. Comm, 96 T.C.
686, 687-88 (Tax Court, 1991), quoting. Texas Educ. Code Ann. §
13.501 (Vernon Supp. 1990).
'SH_ R. Rep. No. 101-723 at 45 (1990) (Employers seeking for-
eign workers have a special obligation to ensure that obtaining
workers from abroad is a last resort.”)
7
The federal government spends billions of dollars
each year on STEM education.'? American colleges
are graduating record numbers of American STEM
workers.”°
Nevertheless, some employers prefer to hire foreign
STEM workers.”' Foreign STEM workers often cost
less and do not complain about adverse working con-
ditions. See, e.g., Norman Matloff, On The Need For
Reform Of The H-1B Non-Immigrant Work Visa In
Computer-Related Occupations, 36 Univ. Mich. J. L.
Reform 815, 868—69 (2003) (“Matloff’).277 “The desire
for cheap, compliant labor is so strong that often an
employer will not even consider hinng Americans.”
Id. at 818; App. I.
By 1990, the number of foreign STEM workers ad-
mitted to the United States on temporary work visas
had “resulted in a labor impact necessitating a limita-
'S In Fiscal Year 2007, federal agencies spent $3,473,886,648
on STEM education programs. U.S. Dept. of Education, Re-
port of the Academic Competitiveness Council 50 (May 2007)
available at http://www.ed.gov/about/inits/ed/competitiveness/
acc-mathscience/report.pdf.
°° Moira Herbert, Study: No Shortage of U.S. Engineers, Bus:-
nessWeek, Oct. 28, 2009 available at http://www.businessweek.
com/bwdaily/dnflash/content/oct2009/db2009 1027_723059_htm.
7 or.
2 “The de facto indentured servitude of the H-1Bs is key to
their being exploited as cheap, compliant labor. This is a major
driving force underlying employer preference for H-1Bs [foreign
workers] over American workers.” Matloff, 36 Univ. Mich. J. L
Reform at 869-70.
8
tion on those admissions.””™ H. R. Rep. No. 101-723, at
67. In response, Congress created a new alien worker
program, known as “H-1B,” that imposed annual quo-
tas on foreign labor and included other American la-
bor force protections. 8 U.S.C. §§ 1182(n), 1184(g).
The annual limit on H-1B visas disturbs some
American employers, who have sought to increase
their ability to hire foreign STEM workers. See, e.g.,
Statement of Bill Gates.
The limits on H-1B STEM worker visas also prompt-
ed industry to seek expanded work eligibility on stu-
dent visas.** App. 55a. Employing F-1 student visa
holders provides a number of advantages compared
to aliens on H-1B visas. Because there 1s no statutory
authorization for work on student visas, for example,
there are no explicit domestic labor protections be-
yond the statutory restriction of “solely to pursue ...
a course of study”. 8 U.S.C § 1101(a)(15)(F)(@). Thus,
employers need not show that Americans are unavail-
able, nor are they required to pay the prevailing wage.
Employers also do not have to pay Medicare and So-
*% Between May 2005 and May 2006, total U.S. employment in
computer science grew by 123,460 and in engineering by 47,770.
Bureau of Labor Statistics, Occupational Employment Statis-
tics, available at http://www.bls.gov/oes. In Fiscal Year 2006,
the number of new H-1B visas for foreign workers in those fields
was equivalent to 39% of job growth. USCIS, Characteristics of
Specialty Occupation Workers (H-1B): Fisca. Year 2006, Annual
Report 11 (2008).
“Representatives of high-tech industries in particular have
raised significant concerns that the inability of U.S. companies
to obtain H-1B visas for qualified F-1 students in a timely man-
ner continues to result in the loss of skilled technical workers to
countries with more lenient employment visa regimes, such as
Canada and Australia.” App. 55a; 73 Fed. Reg. 18,947.
9
cial Security payroll taxes for work performed on F-1
visas. 26 U.S.C. § 3121(b)(19).
Congress, however, has refused to authorize work
on F-1 visas. Secretary Chertoff noted: “[T}his prob-
lem is going to persist until Congress grabs the nettle
and decides that we're going to put together a compre-
hensive immigration reform program that everybody
can live with.” Chertoff Remarks, App. 117a.
The Respondents then authorized work on F-1 vi-
sas by regulation.”* This change was based on employ-
ment, not educational, purposes. “This interim final
rule addresses the immediate competitive disadvan-
tage faced by U.S. high-tech industries, and thus may
quickly ameliorate some of the adverse impacts on the
U.S. economy.” App. 56a—57a; 73 Fed. Reg. 18,947.
As Secretary Chertoff put it:
What this does is it allows us to continue to
keep smart, well-educated foreign students
who want to come over and ultimately get a
work visa, allows us to keep them in place
doing productive work while they are await-
ing the work visa process. And that’s not just
good for them. I[t actually creates jobs in the
American economy for others as well. Soit’sa
win-win both for the students, a win-win for
the employers and a win-win for American
workers.
Chertoff Remarks at App. 11]14a.
This challenge was brought by American STEM
workers who don’t believe that they “won” under the
Department’s expansion of foreign student work eligi-
2 See n9, supra
*6 Chertoff Remarks at App. 117a
10
bility. Petitioners are qualified and available to do the
type of STEM jobs addressed in the Respondents’ IFR.
Yet, as soon as the F-1 OPT program was expanded
from educational to employment-based, Petitioners
found that employers were advertising exclusively for
“foreign students” who were participating in the new
expanded OPT program. See, e.g., App. 126a.
Petitioner Michael Amanti, for example, is a Java
and Java Enterprise programmer with bachelor’s and
master’s degrees; he is currently unemployed, and
sees advertisements for jobs he is qualified to take as
being only available to foreign students who have re-
cently graduated. App. 100a—101la, 4 6 (Comp).). He
is excluded from applying for these jobs because he is
an American citizen. The same is true of the other in
dividual STEM worker Petitioners. App. 100a—105a:
4 6-17 (Comp!l.)
Petitioners filed suit to block the expansion of elig-
ibility for foreign student graduates in American
STEM jobs. App. G (Compl). The Court of Appeals be-
low found that up to 40,000 foreign “students would
compete with the Plaintiffs for STEM jobs.” App. 4a.
Nevertheless, the suit was dismissed under Fed. R.
Civ. P. 12(b)(1), because the courts below felt that the
Petitioners lacked standing.
Statutory and Regulatory Background
The “F-1” student visa authorizes admission to the
United States for “bona fide student[s]} ... solely for
the purpose of pursuing ... a course of study. 8 U.S.C.
§ 1101(a)(15)(F)(a).
There is no statutory authorization for work under
the student visa. A foreign student who works with-
out authorization 1s in violation of the terms of the F-1
visa and becomes removable from the United States.
11
See, e.g., Kirong v. Mukasey, 529 F.3d 800, 802 (8th
Cir. 2008); United States v. Igbatayo, 764 F.2d 1039,
1040 (5th Cir. 1985).
Nevertheless, from 1947-1991, the INS permit-
ted six months of work (called “practical training”)
required or recommended by the school. 8 C.F.R.
§ 125.15(b) (1947). That work period could be renewed
twice. Id.
Aware of the potential for abuse, Congress was con-
cerned about the possibility of foreign students com-
peting with American workers. In 1990, the House
Judiciary Committee criticized “inadequate propos-
als” under consideration by the INS to expand foreign
student employment that “did not contain any labor
safeguards.” H. R. Rep. No. 101-723, at 45, 67.
In 1991 the INS expanded practical training to per-
mit any student to engage in one year of work after
graduation as “Optional Practical Training” (““OPT’).”’
This work period was permitted only so students could
“further their educational objectives” and to “prepare
students for careers in their home countries.” 56 Fed.
Reg. 55,611.
At that time, the agency expressly recognized the
need to protect American workers against competi-
tion from foreign student workers:
The F-1 student employment program in the
final rule represents a careful balance be-
tween the [Immigration and Naturalization]
Service’s desire to allow foreign students ev-
ery opportunity to further their educational
77 Nonimmigrant Classes: Students, F and M Classifications.
56 Fed. Reg. 55,608 (proposed Oct. 29, 1991) (codified at 8 C_F.R.
§§ 214, 274a).
12
objectives in this country and the need to
avoid adversely affecting the domestic labor
market. The House Judiciary Committee
report on HR 4300 ... demonstrated a clear
Congressional concern about the Service's
plan to expand student. employment au-
thorization without any built-in labor safe-
guards.
56 Fed. Reg. 55,610.
As noted supra, at 4, after Congress refused to ex-
pand the OPT time period to 24 months after gradua-
tion, Respondents expanded the F-1 visa regulations
to do the same thing:
In April we published an interim final rule
that extends the total period of Optional
Practical Training from 12 to 29 months
for-—_immigrant students[*] with a degree in
science, technology, engineering or mathe-
matics, who have accepted employment with
an employer enrolled in E- Verify.
Chertoff Remarks, App. 114a.
DHS enacted the Rule without notice and comment
on April 8, 2008 as an Interim Final Rule (“IFR”).
App. 71a; 73 Fed. Reg. 18,944.
In addition to those foreign graduates who have a
job offer from an American employer, as suggested
by Secretary Chertoff, this change of the OPT pro-
8 Secretary Chertoff's characterization of these aliens as “immi-
grant students” was not correct; foreign students are by definition
non-immigrants “having a residence in a foreign country which
he has no intention of abandoning.” 8 U.S.C. §§ 1101(a)(15)(F)(i),
1184(b). Intending immigrant workers are not eligible for the
OPT program.
13
gram from educational to employment-based also al-
lows STEM graduates to remain in the United States
while unemployed and looking for work for as long
as 120 days. App. 68a—69a; 73 Fed. Reg. 18,950. DHS
does not require this extended period of work or un-
employment to be related to a “course of study” or
that aliens who have graduated and seeking employ-
ment be a “bona fide student” as required under the
F-1 student visa statute. ”
DHS estimates that this expansion has “the poten-
tial to add tens of thousands of OPT workers to the to-
tal population of OPT workers in STEM occupations in
the U.S. economy.” App. 70a; 73 Fed. Reg. 18,950. The
Third Circuit below estimated the number of foreign
yraduates who would remain in the United States to
take STEM jobs at 40,000. App. 4a.
The Third Circuit found that “[t]hose F-1 students
compete with the plaintiffs for STEM jobs.” Id. The
Third Circuit also found, without the expansion, those
40,000 foreign graduate workers would have had to
return home, rather than continue working in the
United States. Jd.
Procedural Background
On May 29, 2008, Petitioners filed this challenge, al-
leging that the foreign graduate worker rule exceeded
DHS’s statutory authority, was implemented without
notice and comment, and was arbitrary and capri-
cious. Petitioners also filed a motion for a preliminary
injunction and attached copies of job advertisements
specifically seeking foreign student workers. App. I.
” A second work expansion 1n the IFR allows any alien worker
with a pending H-1B petition to continue working until either
the petition is reyected or the H-1B visas for the next fiscal year
become effective. App. 66a—68a.
14
Before Respondents answered the Complaint, the
District Court denied Petitioners’ preliminary injunc-
tion motion and issued an order to show cause why
the case should not be dismissed for lack of standing.
App. D. “[T]his allegation expresses a general dissat-
isfaction with the DHS policy towards employment of
non-immigrant visa holders. The complaint also seeks
relief that no more directly benefits Plaintiffs than it
does the public at large.” App. 27a.
On August 20, 2008, Petitioners filed an Amended
Complaint adding plaintiffs and allegations of spe-
cific harms. App. G. Respondents responded to the
Amended Complaint with a Motion to Dismiss under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
On Oct. 31, 2008, the District Court granted the
Respondents’ Motion to Dismiss under Fed. R. Civ.
P. 12(b)(1). App. B. The District Court held that Peti-
tioners’ increased competition with “foreign students”
was not an injury in fact, App. 15a—16a, that regula-
tory-created competition is an injury in fact only to
businesses but not to workers, App. 16a n.3, and that
the Rule did not increase the number of foreign work-
ers so it did not increase competition. App. 17a n.6.
The District Court also held that Petitioners’ injuries
were not redressable since, even if the Rule were in-
validated, there would still be foreign workers com-
peting with Petitioners. App. 18a n.6.
Furthermore, the District Court held that the Rule
was lawful and that DHS properly waived notice and
comment. App. 20a n.10. The district court held the
petitioners alleged no facts that the DHS acted arbi-
trarily and capriciously. App. 20a—21a.
Petitioners filed a timely notice of appeal on Nov.
21, 2008. The case was argued on June 2, 2009. The
15
United States Court of Appeals for the Third Circuit
affirmed the dismissal under Fed. R. Civ. P. 12(b)(1)
in an unpublished, “non-precedential”™” opinion is-
sued on July 17, 2009. App. A.
The Third Circuit first looked at Petitioners’ stand-
ing. “Particularly relevant to this case, the plaintiff,
to establish prudential standing, must demonstrate
that the interest it seeks to protect is arguably within
the zone of interests to be protected ... by the statute
. In question.” App. A (citation omitted).
The plaintiffs claim that they were and con-
tinue to be injured by F-1 STEM students
who, instead of leaving the country after 12
months of OPT, remain in the country by
taking on additional OPT and filing an H-1B
petition. Those F-1 students compete with
the plaintiffs for STEM jobs. Absent the IFR,
those students would be forced to return to
their home countries after 12 months of OPT
and would not threaten the plaintiffs’ job
prospects. Yet, perhaps because they viewed
the relevant statute as the entire INA, the
plaintiffs never argue precisely why this inju
ry arguably falls within the zone of interests
protected by § 1101(a)(15)(F)(j) in particular.
We hold that this injury does not fall within
that zone, and, therefore, that the plaintiffs
lack prudential standing.
App. 8a.
® But see, Fed. R. App. P. 32.1; Comm’r of INS v. McCoy, 484
U.S 3. 7 (1987) (unpublished opinion exceeded jurisdiction)
16
The Third Circuit, citing Federation for Am. Immi-
gration Reform|[*'] v. Reno, 93 F.3d 897, 899 (D.C. Cir.
1999) (“FAIR”) (citizens cannot use immigration laws’
American worker protections to challenge non-worker
“humanitarian parole” decisions), held that the lack
of language in the F-1 provision explicitly protecting
American workers meant that Petitioners were not
within the zone of interests of the immigration laws.
App. lla.
The Third Circuit also relied on another case, Jntl
Union of Bricklayers & Allied Craftsman v. Meese,
761 F.2d 798 (D.C. Cir. 1985) (“Bricklayers”), “a case
where the court held that domestic workers’ interest
in limiting competition in the job market generated
by an influx of alien laborers fell within the zone of
interests protected by a provision of the INA,” which
it thought relied on express language in the statute
protecting American workers.*? App. 9a—10a.
The Third Circuit noted that the INS had offered
practical training and OPT for many years, and that
Congress had several opportunities to reject or ad-
| The Federation for American Immigration Reform, a non-
profit organization, is affiliated with the Immigration Reform
Law Institute, which provided trial and appellate counsel to Pe-
titioners.
“@ The Third Circuit was incorrect in its understanding of the
situation in Bricklayers. The alien workers in Bricklayers were
admitted on “B” visitors visas. 761 F.2d at 800-801. Like the F-1
visa provision, the “B” visa category has no express language pro-
viding American worker protections. 8 U.S.C. § 1101(a)(15)(B)
(“[A]n alien (other than one coming for the purpose of study or
of performing skilled or unskilled labor or as a representative
of foreign press, radio, film, or other foreign information media
coming to engage in such vocation) having a residence in a for-
eign country which he has no intention of abandoning and who is
visiting the United States temporarily for business or temporar
ily for pleasure.”)
17
dress these opportunities for foreign students to
work. App. 10a—1lla. The Third Circuit believed that
Congressional inaction:
[P]rovides further evidence that protection of
domestic workers was not among Congress's
concerns in enacting and re-enacting the F-1
status provision, and it tends to suggest that
Congress—like DHS in issuing the IFR—was
concerned with increasing the country’s pool
of available STEM workers.
App. 10a.
The Third Circuit did not cite or note the 1990
House Judiciary Committee Report criticizing foreign
student employment or the congressional rejections
of the same expansion undertaken by Respondents,
both described supra, at 4, 11-12. Nor did the Third
Circuit note Respondents’ 1991 regulations creating
the OPT program itself, with its “careful balance”
between the needs of the students and “the need to
avoid adversely affecting the domestic labor market.”
56 Fed. Reg. 55,610.
The Third Circuit also did not address the Fed.
R. Civ. P. 12(b)(6) or merits holdings by the District
Court. App. lla, n.2.
The Third Circuit denied a timely petition for re
hearing on Aug. 17, 2009. App. C.
18
REASONS TO GRANT THE PETITION
A primary purpose of the immigration statutes
is to “preserve jobs for American workers.” JNS uv.
Natl Center for Immigrants’ Rights, 502 U.S. 183,
194 (1991); Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
893 (1984). One of the “great purposes was to protect
American labor against the influx of foreign labor.”
Karnuth v. United States, 279 U.S. 231, 244 (1929).
Other courts have universally accepted protection
of American labor as a fundamental purpose of the
immigration statutes. FAIR, 93 F.3d at 904 (“clear
concern about protecting the job opportunities of
United States citizens”); Bricklayers, 761 F.2d at 805
(“Congress has thus been concerned with the impact
of competition by foreigners on the American labor
force since 1885, and has passed increasingly restric-
tive legislation on the entry of non-immigrant alien
workers.”); Intl Longshoremen’s and Warehousemen's
Union v. Meese, 891 F.2d 1374, 1379 (9th Cir. 1989);
Medellin v. Bustos, 854 F.2d 795 (5th Cir. 1988); Patel
v. INS, 811 F.2d 377 (7th Cir. 1986) (“Patel”’); Lon-
dono v. INS, 433 F.2d 635, 636 (2d Cir. 1970); Digilab
vu. Sec'y of Labor, 495 F.2d 323, 326 (1st Cir. 1974).
In their 2008 regulatory expansion of the chal-
lenged regulations, Respondents eliminated that fo-
cus on protecting American labor. The lower courts
here adopted that reversal of policy, as well as a ratio-
nale that conflicts with Congress's express language,
Respondents’ prior policies and statements, and sev-
eral lines of judicial precedent.
19
I. The Decision Below Conflicts With the
Statutory Language, Congress’s Expressed
Intent, Respondents’ Prior Policy and Other
Circuits’ Longstanding Views on Worker
Protections in the F-1 Visa Statute and on
American Workers’ Ability to Challenge the
Admission of Foreign Workers Competing for
Domestic Jobs:
The Third Circuit’s opinion below is the first post-
1990 decision on foreign student work authorization
under the OPT program. In contrast to the umform
understanding of the immigration laws as protecting
American workers, as shown supra at 18, the Third
Circuit found that:
[P]jrotection of domestic workers was not
among Congress’s concerns in enacting and
re-enacting the F-1 status provision, and it
tends to suggest that Congress—lhke DHS
in issuing the [FR—was concerned with
increasing the country’s pool of available
STEM workers. See Lorillard v. Pons, 434
U.S. 575, 580 (1978) (“Congress is presumed
to be aware of an administrative ... interpre-
tation of a statute and to adopt that inter-
pretation when it re-enacts a statute without
change.”).
App. 10a.
The Third Circuit also held that American work-
ers were not within the “zone of interests” of the im-
migration laws because there was no express worker
language in the F-1 visa provision. App. 10a. It sug-
gested that the D.C. Circuit in FAIR and Bricklayers
agreed that express language is required for Ameri-
20
can workers to be within the zone of interests. App.
Ya—10a.
This finding that Congress was “not ... concern{ed]”
about protecting U.S. workers in enacting and revis-
iting the F-1 visa provisions conflicts with the statu-
tory language, Congress's express statements about
protecting American workers, with the agency’s own
prior positions and policies, and with other Circuits’
holdings on Congressional intent. The holding that
American workers are not within the zone of inter-
ests of the immigration laws conflicts with numerous
decisions of this and the Circuit Courts on the abil-
ity of American workers to challenge the admission of
competing alien workers.
A. The Statutory Language of the Foreign
Student Program Permits Only
Educational, Not Employment, Activities:
The statutory language of the F-1 visa program
permits an alien to enter the United States only if
the alien, “is a bona fide student qualified to pursue a
full course of study and who seeks to enter the United
States temporarily and solely for the purpose of pursu-
ing such acourse of study.” 8 U.S.C. § 1101(a)(15)(F)@).
There is no statutory authorization for an alien ad-
mitted on an F-1 visa to work in the United States.
The sole rationale for the expansion is to allow F-1
students who have already graduated to remain in the
United States to search for and take jobs. “What this
does is it allows us to continue to keep smart, well-
educated foreign students who want to come over and
ultimately get a work visa, allows us to keep them in
place doing productive work while they are awaiting
the work visa process.” Chertoff Remarks, App. 114a.
21
There is no statutory authority in 8 U.S.C.
§ 1101(a)(15)(F)Q) to do this. There may be authority
in another section of the immigration laws,™ but the
F-1 visa category cannot be expanded by regulation to
include non-students. Any expansion or creation of a
new visa category for foreign STEM graduates must
be done by Congress, which has chosen not to do so.
B. Congress Has Long Been Concerned with
Labor Protections in F-1 Visas:
In the Immigration Reform and Control Act of
1986, Pub. L. 99-603, 100 Stat. 3359 (“IRCA”), Con-
gress “corrected abuse by many groups, including
foreign students.” United States v. Oloyede, 982 F.2d
133, 137-38 (4th Cir. 1993), quoting, H.R. Rep. No.
99-682(1), 99th Cong., 2nd Sess., U.S. Code Cong. &
Admin. News 1986, 5654 (“the Committee has placed
restrictions on the ability of these students to remain
in the United States and seek lawful permanent resi-
dent alien status.”).
In 1990, the House Judiciary Committee com-
plained that INS proposals to expand foreign student
employment “did not contain any labor safeguards.”
H. R. Rep. No. 101-723, at 45, 67 (1990). When Con-
gress addressed employers’ requests for more STEM
workers in 1990, it did so through the H-1B visa pro-
vision, whose limits include strict annual quotas on
visa issuance and other worker protections. Id.
These specific Congressional actions cannot be re-
conciled with the Third Circuit's contention that “pro-
tection of domestic workers was not among Congress’s
83 See, e.g..8 USC. § 1184(n)(2). providing for temporary resi-
dence for a worker while waiting for a permanent resident work-
er visa.
22
concerns in enacting and re-enacting the F-1 status
provision.” App. 10a. In addition, the Third Circuit’s
contention that “Congress—like DHS in issuing the
IFR—was concerned with increasing the country’s
pool of available STEM workers,” conflicts both with
existing federal policy to use domestic STEM workers
and with Congress’s decision not to expand either the
H-1B visa quotas or F-1 student employment.
C. Before 2008, Respondents Themselves Had
a Policy of Preserving American Jobs from
Foreign Students:
Respondents themselves have long been concerned
with protecting American workers.
One of the conditions stated in the [foreign
students’ Maintenance of Status} Bond, a
condition designed, of course, to preserve
American jobs for bona fide members of the
American labor force, was that, being admit-
ted as a foreign student, during Islam’s stay
in the United States as a student, Islam would
not accept “unauthorized employment,” that
is, employment that had not received prior
approval from the Service.
Ahmed v. United States, 480 F.2d 531, 532 (2d Cir.
1973) (‘Ahmed’) (emphasis added).
Sumilarly, in 1991 when Respondents administra-
tively created the OPT program itself, Respondents
were careful to reflect Congressional intent to protect
American workers: “The House Judiciary Committee
report on HR 4300 ... demonstrated a clear Congress-
ional concern about the [Immigration and Natural-
ization} Service’s plan to expand student employment
23
authorization without any built-in labor safeguards.”
56 Fed. Reg. 55,610.
In response, Respondents crafted a “careful bal-
ance” which existed until the challenged April 2008
expansion of the program: “The F-1 student employ-
ment program in the final rule represents a careful
balance between the Service’s desire to allow foreign
students every opportunity to further their educa-
tional objectives in this country and the need to avoid
adversely affecting the domestic labor market.” Id.
(emphasis added).
If, as the Third Circuit contends in its decision
below that Congress was “aware” of the F-1 foreign
student OPT work program, and acquiesced in the
F-1 regulations, App 10a, it is precisely because Con-
gress was told by Respondents that the OPT program
“contain[ed] labor safeguards” and “avoid[ed] ad-
versely affecting the domestic labor market.” 56 Fed.
Reg. 55,610. In fact, as shown supra, at 4, by rejecting
numerous attempts to increase the number of foreign
STEM workers, Congress had considered “increas-
ing the country’s pool of STEM workers” and believed
that the increase should come from domestic, not for-
eign student, workers.
The Third Circuit flipped Congressional intention
on its head. Only Secretary Chertoff rationalized the
program as a “win-win” for American workers. App.
114a. Congress did not do so by acquiescence.
24
D.The Third Circuit’s Opinion Conflicts with
Other Circuits Which Have Held that the
F-1 Student Visa Includes Protections for
American Workers:
Unhke the Third Circuit, other Circuits have held
that protection of domestic workers was among Con-
gress’s concerns in enacting and re-enacting the F-1
status provision. See, e.g. Patel, 811 F.2d at 383 (Board
of Immigration Appeals entitled to deny foreign stu-
dent’s adjustment of status based on unauthorized
employment because “In large measure the immigra-
tion laws are intended to protect the domestic labor
force.”); Ahmed, 480 F.2d at 532 (foreign students’
employment authorization condition “designed, of
course, to preserve American jobs for bona fide mem-
bers of the American labor force.”).
E. The Third Circuit’s Opinion Conflicts
with Other Circuits Which Have Held that
American Workers Can Challenge the
Admission of Competing Alien Workers:
The Third Circuit made findings which indicate
that Petitioners had standing to maintain this case:**
“Those F-1 students compete with the plaintiffs for
STEM jobs. Absent the IFR, those students would
be forced to return to their home countries after
12 months of OPT and would not threaten the plain-
tiffs’ job prospects.” App. 4a.
Nevertheless, the Third Circuit held that, “the
plaintiffs never argue precisely why this injury ar-
4A plaintiff must allege three elements to satisfy the constitu-
tional component of standing: 1) injury in fact; 2) a fairly trace-
able causal connection between defendants’ conduct and the
injury; and 3) the injury is likely to be redressed by the rehef
sought. Allen v. Wright, 468 U.S. 737, 750—51 (1984).
25
guably falls within the zone of interests protected by
§ 1101(a)(15)(F)G) in particular. We hold that this in-
jury does not fall within that zone, and, therefore, that
the plaintiffs lack prudential standing.” App. 8a.
The Third Circuit’s holding was predicated on its
belief that, “the F-1 status provision contains no lan-
guage conditioning entry into the United States on
noninterference with domestic labor conditions.” App.
10a.
This belhet has no foundation. As shown supra, at
21—24, the Third Circuit was mistaken about the lack
of worker protections in the foreign student program.
Congress, Respondents and reviewing courts have
long held that the foreign student program cannot be
used to “interfere[{] with domestic labor conditions.”
App 10a.
The Third Circuit was also similarly mistaken
about the need for specific worker protection language
in the F-1 provision itself. The Third Circuit cited two
opinions from the D.C. Circuit as support, but each
of those opinions actually rejects the Third Circuit’s
reasoning.
1. FAIR v. Reno, Like “Zone-of-Interest”
Decisions of This Court, Does Not Require
Express Language in the Specific Immigration
Law Provision:
In support of its position, the Third Circuit cited the
D.C. Circuit’s decision in FAIR. App. 8a—10a (“sup-
ports our determination that the STEM workers fail
the zone-of-interests test in this case.”). Yet neither
FAIR nor any other “zone of interests” case r-~uires
that there be specific language 1n the provision chal-
lenged in a case:
26
We do not believe that an affirmative signal
of Congressional intent to permit a suit is re-
quired for a finding of prudential standing; a
different conclusion would be difficult to rec-
oncile with the Court’s statement in Clarke
that “the [zone-of-interests] test is not meant
to be especially demanding; in particular,
there need be no indication of congressional
purpose to benefit the would-be plaintiff.” 479
U.S. at 399-400.
93 F.3d at 902 (emphasis in original).
FAIR said, “we have viewed parties as showing
a protected interest if either they were intended by
Congress as ‘beneficiaries’ of the statute or we could
infer that Congress intended them as a ‘suitable chal-
lenger.” 93 F.3d at 900. By a “suitable challenger,”
the D.C. Circuit meant having “more than a marginal
relationship to the statutory purposes.” Jd., quoting
Clarke v. Securities Indus. Ass’n., 479 U.S. 388, 399
(1987).
Petitioners are STEM workers who are available
to do the jobs which the “foreign students” are being
allowed to seek. The Third Circuit recognized that
the challenged regulations deal specifically and only
with STEM jobs: “Congress—like DHS in issuing the
IFR—was concerned with increasing the country’s
pool of available STEM workers.” App. 10a. American
STEM workers would seem to be either “beneficiaries”
of the worker protections every other observer sees in
the F-1 program, or to have “more than a marginal
relationship to the statutory purposes.” Rather than
supporting the Third Circuit's analysis, FAIR actu-
ally conflicts with it.
27
2. Contrary to the Third Circuit’s
Characterization, Bricklayers v. Mecse
Does Not Require Express Language in the
Specific Provision, and the American Workers
in Bricklayers Relied on a Provision Which
Contained No Such Express Language:
The Third Circuit, in its discussion of FAIR, also
mentioned Jnt’l Union of Bricklayers v. Meese, 761
F.2d 798, as supporting its “no language” rationale.
App. 9a—10a. In Bricklayers, U.S. workers challenged
an INS procedure that admitted foreign bricklayers
on “B” visitor visas. Jd. at 800.
The Third Circuit mischaracterized the situation in
Bricklayers, since “B” visitor visas, like F-1 student
visas, do not have language incorporating worker pro-
tections.*° The Bricklayers court, on facts very similar
to those in this case, held that the competition from
the foreign workers was an injury in fact. Jd. at 802
“We must conclude that appellants fall within the
‘zone of interest’ created by the Act before us.” Jd. at
805.
Bricklayers, therefore, stands for the proposition
that American workers have standing to challenge
foreign workers’ admission even if the specific visa
provision used by the aliens contains no express lan-
guage regarding the protection of American workers.
This is the exact opposite of the Third Circuit’s main
3% 8 U.S.C. § 1101(a)(15)(B) (‘an alien (other than one coming
for the purpose of study or of performing skilled or unskilled
labor or as a representative of foreign press, radio, film, or other
foreign information media coming to engage in such vocation)
having a residence in a foreign country which he has no inten-
tron of abandoning and who ts visiting the United States tempo-
rarily for business or temporarily for pleasure.”).
28
holding, and the opposite of the Third Circuit’s char-
acterization of Bricklayers.
The Third Circuit’s rationale for denying pruden-
tial standing will produce uncertainty about the zone-
of-interest test and the applicability of worker protec-
tions in the immigration laws. This Court in Clarke
did not require specific language in the exact chal-
lenged statutory language, yet the Third Circuit used
a “specific language” test as its entire rationale for
denying standing.
The Third Circuit's rationale would have resulted
in different outcomes in prior cases. Bricklayers, for
example, had a very similar factual situation: Ameri-
can workers challenging foreign workers competing
in their specific occupation, admitted under a statuto-
ry provision without specific protections for American
workers. In Bricklayers, the American workers had
standing; here the American workers did not.
The Court should issue a writ to prevent the Third
Circuit’s unsupported rationales from confusing both
the protections available to American workers and
the zone-of-interest tests.
29
CONCLUSION
Petitioners therefore respectfully urge the Court to
issue the writ.
Barnaby W. Zall John M. Miano
Counsel of Record Garrett Roe
Weinberg & Jacobs, LLP Michael Hethmon
11300 Rockville Pike, #1200 Immigration Reform
Rockville, MD 20852 Law Institute
(301) 231-6943 25 Massachusetts Ave. N.W.
bzall@bzall.com Suite 335
Washington, DC 20001
November 13, 2009
APPENDIX
la
Appendix A—Opinion of the Third Circuit
(July 17, 2009)
Not Precedential
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
No. 08-4642
THE PROGRAMMERS GUILD, INC.; AMERICAN
ENGINEERING ASSOCIATION, INC.; BRIGHT
FUTURE JOBS; MICHAEL AMANTI; MARK
BLACKBURN; TONI L. CHESTER; DAVID
HUBER; JOHN G. MARSON; HARRISON PICOT,
Il; PAUL E. POLAK; MIKE ROTHSCHILD;
ROBERT SANCHEZ; STEPHEN BERRY;
STEPHANIE M. BERRY, Appellants
U.
MICHAEL CHERTOFPF, In his capacity as Secretary
of Homeland Security, United States Department
of Homeland Security; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
On Appeal From the United States District Court for
the District of New Jersey
(No. 08-cv-2666)
District Judge: Honorable Faith S. Hochberg
Argued June 2, 2009
Before: FISHER and CHAGARES, Circuit Judges,
and DIAMOND,’ District Judge
(Filed : July 17, 2009)
“Honorable Paul S. Diamond, United States District Judge for
the Easterm District of Pennsylvania, sitting by designation
John Miano (argued)
Michael Hethmon
Immigration Reform Law Institute
25 Massachusetts Ave., N.W.
Ste. 330B
Washington, DC 2000!
Counsel for Appellants
Samuel P. Go (argued)
United States Dep't of Justice
Office of Immigration Litigation
Room 6042
450 5th St., N.W.
Washington, DC 20001
James B. Clark
Office of the United States Attorney for the District
of New Jersey
970 Broad St.
Room 700
Newark, NJ 07102
Counsel! for Appellees
Opinion of the Court
CHAGARES, Circuit Judge.
The plaintiffs appeal from the District Court's or
der dismissing their complaint. We will affirm.
I.
Because we write solely for the benefit of the par-
ties, we will recite only the essential facts.
An alien seeking to attend school in the United
States may apply for “F-1" status—and, if granted,
may reside lawfully in the country—for as long as he
is a full-time student. After he completes his academ-
3a
ic program, he can maintain F-] status for a limited
time while engaging in employment directly related
to his field of study, called “optional practical train-
ing” (“OPT”). After OPT ends, the student has a short
grace period in which to arrange for a new method
of remaining in the United States or, failing that, to
leave it.
One popular method of remaining in the country is
obtaining “H-1B” status in connection with anticipated
future employment in a technical field requiring ad-
vanced study. To obtain H-1B status, the prospective
employer files a petition on the student’s behalf. If the
petition is granted, the F-1 student can be present in
the country for up to six years from the date that em-
ployment begins. Congress caps the number of indi-
viduals who may assume H-1B status each year. The
application timetable, however, causes the average
student to have a gap between the expiration of his F-1
status and the commencement of his H-1B status.
Prior to April 8, 2008, the Department of Homeland
Security (“DHS”) limited OPT to 12 months. Also, a
student whose F-1 status had expired but whose H-1B
petition was pending was not entitled to remain in
the country while it was being considered. On April
8, 2008, DHS, citing its authority pursuant to the Im-
migration and Nationality Act of 1952 (“INA”), issued
an interim final rule (‘IFR”) addressing these issues.
The IFR extends OPT to 29 months for students in
science, technology, engineering, or mathematics (the
so-called “STEM” fields). It also allows an F-1 student
with a pending H-1B petition to remain in the country
until the petition is formally ruled upon and, if ulti-
mately granted. until he begins work.
The Administrative Procedure Act (“APA”), 5 U.S.C.
§ 553(b), (d), provides that an agency normally must
4a
give public notice of a proposed rulemaking, solicit
comments from interested persons, and, once the rule
is ultimately issued, wait 30 days before enforcing it.
DHS invoked a statutory “good cause” exception al-
lowing it to skip these steps and declare the IFR effec-
tive immediately, on the ground that any delay was
“impracticable, unnecessary, or contrary to the public
interest.” DHS found that STEM fields were experi-
encing a severe labor shortage, and it estimated that
the IFR would allow over 40,000 STEM students, who
otherwise would have to leave the country, to remain
in the United States and help alleviate the shortage.
A handful of domestic workers in or about to enter
the STEM job market, and organizations representing
them and others similarly situated, filed a complaint
in federal court seeking to invalidate the IFR. Invok-
ing the APA’s judicial-review provision, 5 U.S.C. § 702,
they claimed that, in issuing the IFR, DHS exceeded
the scope of its INA authority, acted arbitrarily and
capriciously, and failed to justify its use of the “good
cause” exception to full-blown rulemaking procedure.
The plaintiffs allege that the rule has harmed them
by increasing the supply of workers who compete with
them for jobs, forcing wages down, prompting employ-
ers to replace non-OPT workers with OPT workers,
and causing employers to fill open positions only with
OPT workers.
DHS filed a motion to dismiss for lack of standing
pursuant to Fed. R. Civ. P. 12(b)(1), and, in the alter-
native, pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. The District
Court granted the motion, holding that the plaintiffs
lacked standing and that their claims were meritless
as a matter of law. The plaintiffs then filed this ap-
peal.
5a
Il.
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1346. We have jurisdiction pursu-
ant to 28 U.S.C. § 1291.
To maintain an action in federal court, a plaintiff
must demonstrate constitutional standing by satisfy-
ing several requirements imposed by Article III of the
Constitution. See Toll Bros., Inc. v. Twp. of Reading-
ton, 555 F.3d 131, 137—38 (3d Cir. 2009) (outlining Ar-
ticle III’s “irreducible constitutional minimum”). The
plaintiff must also demonstrate prudential standing
by meeting certain judge-made requirements designed
to limit the exercise of federal jurisdiction. Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004).
Particularly relevant to this case, the plaintiff, to
establish prudential standing, must demonstrate that
the interest it seeks to protect “is arguably within the
zone of interests to be protected...by the statute...
in question.” Ass’n of Data Processing Serv. Orgs. v.
Camp, 397 U.S. 150, 153 (1970) (discussing zone-of-
interests test in context of APA challenge to agency
action). The “statute...1n question” encompasses more
than just the provision allegedly violated by the ad-
ministrative action. It also includes other provisions
having an “integral relationship” to that provision. Air
Courier Conference v. Am. Postal Workers Union, 498
U.S. 517, 530 (1991). The “integral relationship” re-
quirement should not be applied too rigidly, see Davis
uv. Phila. Housing Auth., 121 F.3d 92, 98 n.8 (3d Cir.
1997), but it also should not be applied so loosely— uch
as by deeming each section of an act “integrally relat-
ed” to all other sections — as to render it meaningless,
Air Courier Conference, 498 U.S. at 529-30. Factors to
consider in determining whether two provisions in an
act are integrally related include whether both pro-
6a
visions address similar subject matter, whether leg-
islative history reveals that they share a common
purpose, and whether they are located in a common
section or subsection of the act. See Fed’n for Am.
Immig. Reform v. Reno, 93 F.3d 897, 903—04 (D.C.
Cir. 1999) (discussing “integral relationship” analy-
sis).
After the court identifies the “statute...in ques-
tion,” it must determine whether the plaintiff's 1n-
terests “arguably fall within the zone of interests
to be protected” by it. This determination, like the
“integral relationship” analysis, is “not meant to be
especially demanding.” Clarke v. Sec. Indus. Ass'n,
A479 U.S. 388, 399-400 (1987). The plaintiff need not
show that Congress intended him, in particular, to
benefit from the provisions. Jd. But, he must show
that his interests are more than “marginally related
to...the purposes implicit in the statute.” Jd.
ITT.
A.
The plaintiffs argue that the relevant statute is
the entire INA. The Supreme Court has squarely
disallowed such a kitchen-sink approach, however,
and requires litigants to identify the relevant provi-
sions with some particularity. See Air Courier Con-
ference, 498 U.S. at 529-30.
The relevant provision here is the one the
plaintiffs allege DHS actually violated: 8 U.S.C.
§ 1101(a)(15)(F)Q), defining F-1 status. It states
that an alien “who seeks to enter the United States
temporarily and solely for the purpose of pursuing
... a course of study” at a DHS-approved education-
al institution is deemed a “non-immigrant.” Subse-
la
quent provisions allow the Attorney General to ad-
mit such non-immigrants into the country.'
'For the first time on appeal, the plaintiffs 1 identify two oth-
er potentially relevant INA provisions: § 1182(a)(5)(A)(Q@) and
(n)(1){A). The first, § 1182(a)(5)(A)(i), states:
Any alien who seeks to enter the United States for the
purpose of performing skilled or unskilled labor is inad-
missible, unless the Secretary of Labor has determined
and certified ... that ...the employment of such alien will
not adversely affect the wages and working conditions of
workers in the United States similarly employed.
The second, § 1182(n)(1){A), requires an employer filing an H-1B
petition on an alien’s behalf to include such a certification in the
application.
Resort to these labor-certification provisions fails for two reasons.
First, the plaintiffs failed to bring these provisions to the atten-
tion of the District Court. Therefore, we need not consider them
on appeal. See Common Cause v. Pennsylvania, 558 F.3d 249,
263 (3d Cir. 2009) (explaining that even though this Court has
an obligation to determine whether the plaintiff had standing in
the district court, “[a] litigant generally cannot create standing
through new allegations raised for the first time on appeal”).
Second, even if we were to entertain these arguments, we would
hold that the labor-certification provisions are not “integralfly]
relat[ed}” to the F-1 status provision within the meaning of Air
Courier Conference and therefore do not enter into our zone-of-
interests analysis. The provisions address different subjects. The
F-1 status provision addresses eligibility to enter the country to
study, whereas the labor-certification provisions address eligibility
to enter the country to work. True, OPT employers often arrange
for F-1 students to become H-1B workers, but F-1 status is neither
necessary nor sufficient to obtain H-1B status. The plaintiffs point
to no legislative history linking the purpose of the labor-certifica-
tion provisions with the purpose of the F-1 status provision. In
addition, the labor-certification provisions are located in an INA
subsection different from that containing the F-1 status provi-
sion. See Fed n for Am. Immug. Reform, 93 F.3d at 903-04 (hold-
ing INA immigration quota provision not “integralfly] relat{[ed]”
to INA provision allowing Attorney General to parole aliens into
8a
B.
The plaintiffs claim that they were and continue
to be injured by F-1 STEM students who, instead of
leaving the country after 12 months of OPT, remain
in the country by taking on additional OPT and filing
an H-1B petition. Those F-1 students compete with
the plaintiffs for STEM jobs. Absent the IFR, those
students would be forced to return to their home coun-
tries after 12 months of OPT and would not threaten
the plaintiffs’ job prospects. Yet, perhaps because
they viewed the relevant statute as the entire INA,
the plaintiffs never argue precisely why this injury
arguably falls within the zone of interests protected
by § 1101(a)(15)(F)(@j) in particular. We hold that this
injury does not fall within that zone, and, therefore,
that the plaintiffs lack prudential standing.
The Court of Appeals for the District of Colum-
bia Circuit’s opinion in Federation for American Im-
migration Reform addresses the application of the
zone-of-interests test in the context of a limitation on
the Attorney General’s ability to allow aliens to en-
ter the country and supports our determination that
the STEM workers fail the zone-of-interests test in
this case. In 1994, the Government entered into an
agreement with Cuba whereby it would admit at least
20,000 Cubans per year as legal immigrants. 93 F.3d
at 899. The Attorney General decided to help achieve
this goal by “paroling” several thousand Cubans each
year and then permitting them to apply for lawful
the country for a limited time because the two provisions ad-
dressed different subject matter, no legislative history linked the
purpose of one provision with the purpose of the other, and the
provisions were located 1n different subsections of the INA).
9a
permanent resident status. Jd. A coalition of Miami
residents filed suit, alleging that this decision violated
the parole statute, § 1182(d)(5)(A), which provides:
The Attorney General may... in his discretion
parole into the United States temporarily...for
emergent reasons or for reasons deemed strictly
in the public interest any alien applying for ad-
mission to the United States, but such parole of
such alien shall not be regarded as an admis-
sion of the alien and when the purpose of such
parole shall, in the opinion of the Attorney Gen-
eral, have been served the alien shall forthwith
return or be returned to the custody from which
he was paroled ....
Specifically, the residents alleged that the Attorney
General was using parole effectively to admit the
aliens (rather than allow them to be present tem-
porarily), a practice the statute expressly prohibits.
93 F.3d at 900. They asserted that the unlawfully-pa-
roled Cubans were damaging their employment pros-
pects by entering the job market and providing addi-
tional competition. Id. at 903.
The court of appeals held that this injury did not
arguably fall within the zone of interests protected by
the parole statute. Jd. at 903-04. It rejected the Mi-
ami residents’ argument that harm to job prospects
is within the zone of interests protected by immigra-
tion laws under International Union of Bricklayers &
Allied Craftsman v. Meese, 761 F.2d 798 (D.C. Cir.
1985), a case where the court held that domestic work-
ers’ interest in hmiting competition in the job market
generated by an influx of alien laborers fell within the
zone of interests protected by a provision uf the INA.
In that case, the plaintiffs alleged a violation of what
is now § 1182(a)(5)(A)Q), a provision requiring the
10a
Secretary of Labor to certify that “the employment of
such aliens will not adversely affect the wages and
working conditions of workers in the United States
similarly employed.” The Federation for American
Immigration Reform court observed that the parole
statute, in contrast, contained no such language. See
93 F.3d at 903.
This suggests that the plaintiffs here, too, fail to
meet the zone-of-interests test. Like the parole stat-
ute at issue in Federation for American Immigration
Reform, the F-1 status provision contains no language
conditioning entry into the United States on noninter-
ference with domestic labor conditions. Furthermore,
at least since 1947, federal agencies dealing with im-
migration have interpreted § 1101(a)(15)(F)(i) to al-
low a student to engage in on-the-job training to sup-
plement his in-the-classroom training. See 8 C.F.R.
§ 125.15(b) (1947). Yet, each time Congress has re-en-
acted § 1101(a)(15)(F)G@) — including October 10, 2008,
see Pub. L. No. 110-391, § 2(a)-(b), 122 Stat. 4193,
4193-94 (2008) (amending § 1101(a) but leaving sub-
section (15)(F)(i) intact), six months after DHS issued
the IFR —it has chosen not to add language mandating
that those OPT students not adversely affect simuar-
ly-employed domestic workers. This provides further
evidence that protection of domestic workers was not
among Congress’s concerns in enacting and re-enact-
ing the F-1 status provision, and it tends to suggest
that Congress-lke DHS in issuing the IFR-—was con-
cerned with increasing the country’s pool of available
STEM workers. See Lorillard v. Pons, 434 U.S. 575,
580 (1978) (“Congress is presumed to be aware of an
administrative ... interpretation of a statute and to
adopt that interpretation when it re-enacts a statute
without change.”). That Congress has over the years
lla
chosen to include such language in defining other
categories of non-immigrants, see § 1101(a)(15)(Q)
(defining as non-immigrant “an alien coming tempo-
rarily ...to the United States as a participant in an
international cultural exchange program...for the
purpose of providing practical training, employment,
and the sharing of the history, culture, and traditions
of the country of the alien’s nationality and who will
be employed under the same wages and working con-
ditions as domestic workers,” thereby preventing such
an alien from undercutting domestic workers’ salary
demands) (emphasis added), reinforces this conclu-
sion.
In sum, case law and our own examination of Con-
gress’s treatment of the F-1 status provision lead us
to hold that the plaintiffs’ injury does not fall within
the zone of interests protected by § 1101(a)(15)(F)(a).
IV.
For the reasons mentioned above, we will affirm the
District Court’s order dismissing the complaint pur-
suant to Rule 12(b)(1).”
? Because we will affirm the District Court’s order for lack
of prudential standing, we express no opinion on the District
Court's resolution of the other issues in this case, namely con-
stitutional standing and the merits of the plaintiffs’ substantive
challenges.
13a
Appendix B—District Court’s Dismissal
Opinion
(Oct. 31, 2008)
NOT FOR PUBLICATION CLOSED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE PROGRAMMERS GUILD, INC.; AMERICAN
ENGINEERING ASSOCIATION; BRIGHT FUTURE
JOBS; et al., Plaintiffs,
Vv.
MICHAEL CHERTOFF in his capacity as Secretary of
Homeland Security and UNITED STATES DEPART-
MENT OF HOMELAND SECURITY, Defendants.
Civil Case No. 08-2666 (FSH)
OPINION and ORDER
Date: October 31, 2008
HOCHBERG, District Judge
This matter having come before the Court upon the
Motion to Dismiss for lack of standing pursuant to
Fed. R. Civ. P. 12(b)(1) and for failure to state a claim
upon which relief can be granted pursuant to Fed. R.
Civ. P. 12(b)(6) filed by the Defendants, the Depart-
ment of Homeland Security (“DHS”) and Secretary of
DHS, Michael Chertoff; and the Court having consid-
ered the written submissions of the parties pursuant
to Fed. R. Civ. P. 78; and
it appearing that Plaintiffs The Programmers Guild,
Inc.; American Engineering Association: Bright Fu
ture Jobs; Michael Amanti; Mark Blackburn; Toni L.
Chester; David Huber; John G. Marson; P. Harrison
l4a
Picot Il; Paul E. Polak; Mike Rothschild; Robert San-
chez; Stephen Berry; and Stephanie Berry (“Plaintiffs”),
a group of three representative organizations and elev-
en individuals trained in computer programming and
engineering, seek to enjoin the implementation and
enforcement of an Interim Final Rule (“IFR”) extend-
ing the period of time in which technically-trained stu-
dents may remain within the United States as lawful
nonimmigrants while participating in the Optional
Practical Training (“OPT”) program;' and
it appearing that Plaintiffs bear the burden of estab-
lishing their standing to bring this action, see Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992); and
it appearing that “[s]tanding has constitutional and
prudential components, both of which must be satis-
fied before a litigant may seek redress in the federal
courts,” UPS Worldwide Forwarding, Inc. v. U.S. Post-
al Service, 66 F.3d 621, 625 (3d Cir. 1995); and
it appearing that courts recognize that “the irre-
ducible constitutional minimum of standing contains
three elements. First, the plaintiff must have suffered
an ‘injury in fact’ - an invasion of a legally protected in-
terest which is (a) concrete and particularized, and (b)
‘actual or imminent, not ‘conjectural’ or ‘hypothetical.”
Second, there must be a causal connection between the
injury and the conduct complained of - the injury has
to be ‘fairly trace[able} to the challenged action of the
defendant, and not ... th[{e] result [of] the independent
action of some third party not before the court.’ Third,
it must be ‘likely,’ as opposed to merely ‘speculative,’
that the injury will be ‘redressed by a favorable deci-
'See 73 Fed. Reg. 18944-02, 2008 WL 925258 (F_R.); 8 U.S.C
§ 1 101(a)(15)(F)Q@)
15a
sion.’ Lujan, 504 U.S. at 560-561 (internal citations
omitted); and
it appearing that the rules of prudential standing re-
quire that “(1) a litigant assert his [or her] own legal
interests rather than those of third parties, (2) courts
refrain from adjudicating abstract questions of wide
public significance which amount to generalized griev-
ances and (3) a litigant demonstrate that her interests
are arguably within the zone of interests intended to
be protected by the statute, rule or constitutional pro-
vision on which the claim is based,” Wheeler v. Travel-
ers Ins. Co., 22 F.3d 534, 538 (3d Cir.1994) (internal
quotations and citations omitted); and
it appearing that Plaintiffs, relying on the “competi-
tor standing doctrine,” cite the “increased economic
competition” resulting from an increas 4 supply of
workers in their professional fields as the injury-in-fact
caused by implementation of the IFR; and
it appearing that Plaintiffs have failed to establish
an injury-in-fact because courts have applied the com-
petitive standing doctrine only in limited circumstances
and only when an agency action imposes a competitive
* The “competitor standing doctrine,” also known as the “com-
petitive standing doctrine,” arises when a regulatory change cre-
ates additional competition for a plaintiff, who challenges the
competition itself as an injury-in-fact. Courts have, for example,
considered the imminent loss of business to be an injury-in-fact.
See UPS Worldwide Forwarding, 66 F.3d at 626; see also Adams
v. Watson, 10 F.3d 915, 921 (1st Cir. 1993) (surveying precedent
establishing economic competition as injury-in-fact).
16a
injury to businesses, rather than to individuals such as
job applicants;’ and
it appearing that, even if increased competition
for jobs constituted an injury-in-fact, Plaintiffs have
failed to allege facts establishing that their injuries
are “concrete and particularlized” or “actual or immi-
nent,” rather than “conjectural or hypothcetical;"* and
it appearing that Plaintiffs argue that their unem-
ployment or under-employment is causally linked to
the 17-month extension of OPT eligibility; and
it appearing that the “causal connection aspect of
standing requires that the injury be fairly traceable
to the challenged conduct of the defendant and not be
a result of independent actions of third parties not be-
fore the court,” Hartz Mountain Indus., v. Polo, 2005
WL, 2807355, *8 (D.N.J. Oct. 26, 2005); and
7 As Defendants argue, the competitor standing doctrine has
not been applied to prevent competition among job applicants.
The cases highlighted by the parties focus, instead, on imminent
competitive injuries to businesses. Plaintiffs have not offered a
compelling justification for expanding the competitor standing
doctrine to cover individuals competing for jobs, and the Court
declines to do so.
* See, e.g., Schurr v. Resorts Intern. Hotel, Inc., 196 F.3d 486,
495 (3d Cir. 1999) (finding that plaintiff, a job apphcant chal-
lenging a regulation setting minority employment goals, was un-
able to prove that implementation of the regulations caused “im
minent injury” and, as a result, lacked the standing to challenge
future rather than past application of the regulation).
l7va
it appearing that Plaintiffs have not established a
causal nexus between their alleged injuries and the
IFR because neither the individual nor organizational
Plaintiffs are directly regulated by the IFR, and be-
cause their employment status 1s dependent upon the
independent actions of third parties;> and
it appearing that Plaintiffs argue that an injunc-
tion will redress their alleged injury by reducing the
number of OPT workers in their fields by up to 59%;
and
it appearing that a plaintiff must allege that an in-
jury is “likely to be redressed by the requested relief,”
Allen v. Wright, 468 U.S. 737, 751 (1984); and
it appearing that Plaintiffs’ alleged injuries are not
likely to be redressed by a favorable decision because
invalidating the proposed extension would neither
5 Plaintiffs do not, and in fact cannot. show that the IFR is
solely, or even primarily, responsible for their alleged injuries.
Plaintiffs are currently unemployed or under-employed as a re-
sult of a wide range of independent factors. While the existence
of the OPT program itself may be such a factor, Plaintiffs are not
challenging the program overall. In the context of these other
factors, such as “job saturation ... high fuel costs, outsourcing,
[and] improved technology,” it can not be established that the ex-
tension implemented by the IFR is on its own the cause of their
employment problems.
18a
eliminate competition for jobs in their field nor guar-
antee the improved economic conditions sought;® and
it appearing that Plaintiffs have failed to establish
prudential standing because the threat of increased
competition for jobs posed by the IFR is only a gener-
alized grievance with a particular government policy
rather than a concrete and particularized injury;‘ and
it appearing that Plaintiffs have also failed to satisfy
the zone of interests test required to establish pruden-
tial standing because the purposes of the IFR are to im-
prove the U.S.’s competitive position for students and
workers in these fields while easing visa application
procedures for OPT students, not to increase competi-
® As Defendants emphasize, even with invalidation of the IFR,
Plaintiffs would still face competition from existing OPT stu-
dents and aliens with H-1B visas. Moreover, the IFR does not
itself increase the number of visas available and does not, there-
fore, directly increase the number of applicants competing with
Plaintiffs for jobs in this field. The number of visas available in
total is unaffected by the IFR, so the number of potential foreign
competitors is also unaffected. As the DHS has made clear, the
IFR primarily affects how OPT students can secure such visas.
"See Lujan, 504 U.S. at 574 (“a plaintiff raising only a general-
ly available grievance about government - claiming only harm to
his and every citizen's interest in proper application of the Con-
stitution and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large - does not
state an Article II] case or controversy.”); see also Allen, 468 U.S.
at 754; Va.ley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 483 (1982).
19a
tion within the U.S. for these jobs or harm American
workers in these professions;® and
it appearing, in the alternative, that a motion to dis-
miss under Rule 12(b)(6) should be granted “if it ap-
pears to a certainty that no relief could be granted un-
der any set of facts which could be proved,” see Morse
uv. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997);° and
it appearing that to survive a Rule 12(b)(6) Motion
to dismiss, “factual allegations must be enough to
raise a right to relief above the speculative level, on
the assumption that all the allegations in the com-
plaint are true even if doubtful in fact,” Bell Atlantic
® Under the zone of interests test, plaintiffs must establish that
the “interest [they] seek[] to vindicate is arguably within the
‘zone of interests to be protected or regulated by the statute’ in
question.” Director, Office of Workers’ Compensation Programs,
Dept. Of Labor v. Newport News, 514 U.S. 122, 128 (1995). Be-
cause the DHS clearly explained that the purpose of the IFR
is to make it easier for foreign students to continue working in
OPT programs and, therefore, make it easier for U.S. employers
to hire and benefit from these highly skilled students, it is clear
that the interests of similarly skilled American workers were not
the intended target of the IFR.
® Although a court does not need to credit a complaint’s “bald
assertions’ or “legal conclusions,” it is required to accept as true
all of the allegations in the complaint as well as all reasonable in-
ferences that can be drawn therefrom and view them in the light
most favorable to the plaintiff. Morse, 132 F.3d at 906, citing
Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).
See also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410.
1429-30 (3d Cir. 1997). In evaluating a motion to dismiss pursu-
ant to Fed. R. Civ. P. 12(b)(6), the Court may consider only the
Complaint. exhibits attached to the Complaint, matters of public
record, and undisputedly authentic documents if the Plaintiffs
claims are based on those documents. Pension Guaranty Corp. v.
White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1992).
20a
Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007);
and
it appearing that Plaintiffs allege (1) that the IFR
does not comply with the statutory authorization of
8 U.S.C. § 1101(a)(15)(F)(i); (2) that Defendants acted
arbitrarily and capriciously in implementing the IFR;
and (3) that Defendants improperly waived the no-
tice and comment requirements of the Administrative
Procedure Act (“APA”); and
it appearing that Plaintiffs cannot allege facts es-
tablishing that the IFR exceeds the DHS’s statutory
authorization pursuant to 8 U.S.C. § 1103(a)(3), which
grants the Secretary of the DHS the power to “estab-
lish such regulations...as he deems necessary for car-
rying out his authority under the provisions of [the
Immigration and Nationality] Act;”'° and
it appearing that Plaintiffs allege no facts that tend
to establish that DHS acted arbitrarily and capri-
'© Congress also conferred regulatory 10 authority upon the
DHS to set the time period in which nonimmigrants can remain
in the country. This means that the DHS is within its authority
to promulgate the IFR. “All agencies charged with enforcing and
administering a statute have inherent authority to issue interpre-
tive rules informing the public of the procedures and standards
it intends to apply in exercising its discretion.” Metropolitan Sch.
Dist. v. Davila, 969 F.2d 485, 490 (7th Cir. 1992). See also 8 U.S.C.
§ 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 [Secretary of Homeland Security] may by regulations pre-
scribe...”). Moreover, courts “give deference to the interpretation
of a statute by the agency charged with administering it.” South-
ern Cal. Edison Co. v. Fed. Energy Reg. Comm'n, 770 F.2d 779,
782 (9th Cir. 1985).
2la
ciously;'' and it appearing that Plaintiffs have failed
to allege facts beyond a speculative level that tend to
establish that DHS acted without good cause in giv-
ing the interim IFR immediate effect;'”
1! Pursuant to the Chevron Doctrine, when Congress express-
ly delegates the authority to make regulations such as these,
“[s]uch legislative regulations are given controlling weight un-
less they are arbitrary, capricious, or manifestly contrary to
the statute.” Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984). In their Amended Com-
plaint, Plaintiffs allege that “[t]he implementation of the final
rules by the Defendant was arbitrary and capricious...” but fail
to provide facts that raise that conclusion above the “speculative
level,” as required by current legal standards. See Bell Atlantic
Corp. 127 S.Ct. at 1964-1965.
2 Plaintiffs incorrectly allege that DHS provided no justifica-
tion for giving the IFR immediate effect. In fact, DHS explained
that “good cause” was established because delayed implementa-
tion would be “contrary to the public interest” for thousands of
students whose visas, arranged through OPT, would have ex-
pired during public consideration of the IFR. If the IFR had not
been given immediate effect through the “good cause” exception,
students already holding approved H-1B petitions would have
had to terminate employment and either leave the United States
or enroll in another course of study to maintain their F-1 status
at the end of their OPT terms. Such a situation would have been
contrary to the expressed public interest in keeping these qualli-
fied graduates from going to other countries to find work in these
fields. See 73 Fed. Reg. 18944-18950.
22a
IT IS on this 31st day of October, 2008,
ORDERED that the Motion to Dismiss Plaintiffs
First Amended Complaint filed by Defendants DHS
and Michael Chertoff is GRANTED; and it is further
ORDERED that Plaintiffs’ claims against Defen-
dants are DISMISSED for lack of standing; and it is
further
ORDERED that, in the alternative, Plaintiffs’
claims are DISMISSED for failure to state a claim
upon which relief can be granted; and it is further
ORDERED that this case 1s CLOSED.
/s/ Faith S. Hochberg
Hon. Faith S. Hochberg, U.S.D.J.
23a
Appendix C—Denial of Preliminary Injunction
(Aug. 5, 2008)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE PROGRAMMERS GUILD, INC.; AMERICAN
ENGINEERING ASSOCIA-TION; BRIGHT FU-
TURE JOBS; MICHAEL AMANTI; MARK BLACK-
BURN; TONI L. CHESTER; DAVID HUBER; JOHN
G. MARSON; GENE A. NELSON; P. HARRISON
PICOT Il; PAUL E. POLAK; MIKE ROTHSCHILD;
and ROBERT SANCHEZ,
Plaintiffs,
Vv.
MICHAEL CHERTOFF in his capacity as Secretary
of Homeland Security and UNITED STATES DE-
PARTMENT OF HOMELAND SECURITY,
Defendants.
Civil Case No. 08-2666 (FSH)
ORDER and OPINION
Date: August 5, 2008
HOCHBERG, District Judge
This matter comes before the Court upon Plaintiffs
apphcation for a preliminary injunction pursuant to
Fed. R. Civ. P. 65(a). The Court has reviewed the sub-
missions of the parties and considered the motion on
the papers in accordance with Fed. R. Civ. P. 78.
I. BACKGROUND
The Programmers Guild, Inc.; American Engineer-
ing Association: Bright Future Jobs: Michael Amantti:
Mark Blackburn; Toni L. Chester; David Huber; John
G. Marson; Gene A. Nelson; P. Harrison Picot IT; Paul
24a
E. Polak; and Mike Rothschild, (“Plaintiffs”) are a
group of three representative organizations and ten
individuals trained in computer programming and
engineering. Plaintiffs bring this motion for a prelimi-
nary injunction to enjoin Defendants, the Department
of Homeland Security (“DHS”) and Secretary of DHS,
Michael Chertoff, from implementing an Interim Fi-
nal Rule (“IFR’), which extends the period of time
technically-trained students may remain within the
United States as lawful nonimmigrants' while par-
ticipating in the Optional Practical Training (“OPT”)
program. The IFR, adopted by the DHS on April 8,
2008, provides for eligible alien students with degrees
in mathematics, engineering, science, or technology
disciplines who are applying for H-1B? visas to work
under an F-1? student visa for 29 months.
Prior to the promulgation of the IFR, the DHS had
limited OPT to 12 months. See 8 C.F.R. § 214.2((11)
(207). The IFR allows for eligible graduates to apply
to the United States Citizenship and Immigration
Services (“USCIS”) for an extension of post-comple-
tion OPT for an additional 17 months. The govern-
ment has changed these time periods in the past: a
‘See 8 U.S.C. § 101(a)(15)(F)(i).
* An H-1B visa is a temporary visa for guest workers in special-
ty occupations, valid up to 6 years. 8 U.S.C. § § 1101(a)(15)(H);
1182(g)(4).
3 An F-1 nonimmigrant is defined at 8 U.S.C. § 1101(a)(15)(F)
as an alien having a residence in a foreign country which he has
no intention of abandoning, who is a bona fide student quali-
fied to pursue a full course of study and who seeks to enter the
United States temporarily and solely for the purpose of pursuing
such a course of study consistent with [8 U.S.C. § 1184(1)] at an
established college, university, seminary, conservatory, academ-
ic high school, elementary school, or other academic institution
or in a language training program in the United States...
25a
maximum of 18 months in 1947; a maximum of 12
months in 2007; and, under the challenged provision,
a maximum of 29 months in 2008. Consequently, De-
fendants argue that the IFR did not create a new clas-
sifica-tion of foreign workers or a new visa category,
but instead, increased the period for a long-standing
benefit.
Plaintiffs claim that IFR was promulgated by Sec-
retary Chertoff and the DHS without notice and com-
ment, in violation of the Administrative Procedure
Act. Plaintiffs further argue that without a prelimi-
nary injunction, they will face an immediate increase
in job competition from the F-1 guest workers in the
competi-tive industries of engineering and comput-
ers. According to Plaintiffs, the grant of the injunction
would not cause any irreparable harm to Defendants,
who do not have an interest in the promulgation of the
IFR. Lastly, Plaintiffs contend that the injunction is
in the public interest of protecting the jobs and wages
of U.S. workers and ensuring that Defendants follow
procedures under the Administrative Procedure Act.
Il. STANDARD FOR PRELIMINARY INJUNCTION
The Supreme Court has stated that “a preliminary
injunction is ‘an extraordinary and drastic remedy’;
it is never awarded as of right.” Munaf vu. Geren, _
U.S. __, 128 S. Ct. 2207, 2219 (2008) (quoting 11A C.
Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 2948, p. 129 (2d ed. 1995)). The Third
Circuit has held that to obtain a preliminary injunc-
tion, the moving party must demonstrate:
(1) the reasonable probability of eventual success in
the litigation and
(2) that the movant will be irreparably injured pen-
dent lite if relief is not granted. Moreover, while the
26a
burden rests upon the moving party to make these
two requisite showings, the district court ‘should take
into account, when they are relevant,
(3) the possibility of harm to other interested per-
sons from the grant or denial of the injunction, and
(4) the public interest.
Instant Air Freight Co. v. C.F. Aur Freight, Inc., 882
F.2d 797, 800 (3d Cir. 1989). In the current case, Plain-
tiffs have the burden of establishing the that they sat-
isfy the requirements for a preliminary injunction.
III. DISCUSSION
A. Plaintiffs fail to demonstrate likelihood of success
on the merits.
To prevail on their motion for a preliminary injunc-
tion, Plaintiffs must demonstrate a likelihood of suc-
cess on the merits. The Supreme Court has stated,
Review of a preliminary injunction ‘is not con-
fined to the act of granting the in-junctio[n], but
extends as well to determining whether there is
any insuperable objection, in point of jurisdiction
or merits, to the maintenance of [the] bill, and if
so, to directing a final decree dismissing it.’
Id. at 2219 (quoting City and County of Denver v.
New York Trust Co., 229 U.S. 123, 136 (1913) (altera-
tion in original). In the current case, the government
argues that Plaintiffs lack standing.‘ Though the
Court will permit further bnefing before making a fi-
nal determination of Plaintiffs’ standing, the serious
questions related to standing cast doubt on Plaintiffs’
* The Court does not decide standing issue in this opinion; the
Court today issues an Order to Show Cause why the case should
not be dismissed for lack of standing.
27a
likelihood of success. Instead of alleging a concrete
injury, Plaintiffs assert a generalized grievance with
a particular government policy. Courts have consis-
tently held that
a plaintiff raising only a generally available
grievance about government—claiming only
harm to his and every citizen’s interest in prop-
er application of the Constitution and laws, and
seeking relief that no more directly and tangibly
benefits him than it does the public at large --
does not state an Article III case or controversy.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 574
(1992).° Plaintiffs claim that by promulgating the IFR,
the DHS threatens the jobs and wages of U.S. citizens.
However, this allegation expresses a general dissatis-
faction with the DHS policy towards employment of
nonimmigrant visa holders. The complaint also seeks
relief that no more directly benefits Plaintiffs than it
does the public at large. Thus, the Plaintiffs’ claim
suffers from serious potential standing problems.
In addition, Plaintiffs are unlikely to succeed on
their claim because the DHS had authority to promul-
® See Allen v. Wright, 468 U.S. 737, 754 (1984); Valley Forge
Christian College v. Americans United for Separation of Church
and State, Inc., 454 U.S. 464, 483 (1982) (“assertion of a nght
to a particular kind of Government conduct, which the Govern-
ment has violated by acting differently, cannot alone satisfy the
requirements of Art. III without draining those requirements
of meaning’); see also Lujan, 504 U.S. at 575 (quoting United
States v. Richardson, 418 U.S. 166, 171, 176-77 (1974)) (where
plaintiffs, who sued the government for an alleged constitutional
violation of failure to disclose expenditures, raised an impermis-
sible “generalized grievance that was inconsistent with “the
framework of Article III” because “the impact on [plaintiffs was]
plainly undifferentiated” and “common to all members of the
public”).
28a
gate the IFR. Congress granted the Secretary of the
DHS statu-tory authority to “establish such regula-
tions...as he deems necessary for carrying out his au-
thority under the provisions of [the Immigration and
Nationality] Act.” 8 U.S.C. § 1103(a)(3). Congress also
conferred regulatory authority upon the DHS to set
the time period in which nonimmigrants can remain
in the country.* This means that the DHS is within
its authority to promulgate the IFR. “All agencies
charged with enforcing and administering a statute
have inherent authonity to issue interpretive rules in-
forming the public of the procedures and standards
it intends to apply in exercising its discretion.” Met-
ropolitan Sch. Dist. v. Davila, 969 F.2d 485, 490 (7th
Cir. 1992). Courts “give deference to the interpreta-
tion of a statute by the agency charged with admin-
istering it.” Southern Cal. Edison Co. v. Fed. Energy
Reg. Comm’n, 770 F.2d 779, 782 (9th Cir. 1985). The
practice of giving discretion to agencies further un-
dermines Plaintiffs’ complaint against the DHS.’
B. Plaintiffs fail to demon strate irreparable harm.
Plaintiffs also fail to show that they will be irrep-
arably harmed if the preliminary injunction is not
® See 8 U.S.C. § 1184(a)(1) “The admission to the United States
6 of any alien as a nonimmigrant shall be for such time and un-
der such conditions as the [Secretary of Homeland Security] may
by regulations prescribe...”)
7 Congress has also incorporated OPT into its own interpreta-
tion of the Immigration and Nationality Act by repeatedly re-en-
acting the Act after OPT was implemented. See Lorillard v. Pons,
434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of
an administrative or judicial interpretation of a statute and to
adopt that interpretation when it re-enacts a statute without
change.’) Given that various forms of OPT have been part of the
immigration policy for 60 years, Plaintiffs’ claim that DHS is
creating a “guest worker program” is not likely to succeed.
29a
granted. The Third Circuit has held that “a failure
to show a like-lhood of success or a failure to dem-
onstrate irreparable injury must necessarily re-sult
in the denial of a preliminary injunction.” /nstant Air
Freight Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 800
(3d Cir. 1989) (quoting Jn re Arthur Treacher’s Fran-
chisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982).
In the present case, Plaintiffs claim irreparable
harm from the admission of alien guest workers be-
cause of its alleged impact upon Plaintiffs’ employ-
ment opportuni-ties and compensation. Plaintiffs’
complaint, however, does not show irreparable injury,
but instead, attacks the underlying policy of the IFR.
Plaintiffs contend they are harmed each day they are
not able to work in a job filled by an OPT employee,
and the IFR compounds the injury to them as well
as other U.S. workers. Plaintiffs state that the Unit-
ed States approved 330,000 H1-B visas for computer
workers between 1999 and 2005 and 95,925 H-1B vi-
sas for engineers. Plaintiffs attribute the decline in
employment in engineering and computer fields to
the amount of nonimmigrant workers allowed by the
DHS.
Plaintiffs further argue that the IFR allowing more
guest workers would have an even greater adverse ef-
fect upon the jobs of American workers. This argu-
ment, however, attacks the underlying DHS policy of
nonimmigrant employment, rather than addressing
an irreparable harm faced by Plaintiffs. In addition,
the DHS projects that the IFR will allow 12,000 stu-
dents to apply for an OPT extension. In-terim Final
Rule, 73 Fed. Reg. at 18951. These applications rep-
resent 0.2% of the 5.5 million jobs in computer and
engineering fields in the United States in 2006. The
students within the OPT who seek H-1B visas are al-
30a
ready included in the total number of H-1B petitioners
previously established by the DHS. Thus, the 12,000
applications will be a subset of the 163,000 petitions
set for fiscal year 2009.°
A lack of causal connection between Plaintiffs’ al-
leged injury and DHS action fur-ther undermines
Plaintiffs’ claim of irreparable harm. The extension
of OPT eligi-bility by 17 months through the IFR did
not cause Plaintiffs’ unemployment or under-employ-
ment. As the government argues, Plaintiffs may find
adequate employment tomorrow or next week. Final-
ly, even if there was a nexus between Plaintiffs’ injury
and DHS action, the injury still is not “irreparable”
to qualify for injunctive relief because it is economic
harm compensable in damages.’ Therefore, Plaintiffs
fail to adequately demonstrate irreparable harm if
the preliminary injunction is not granted.
C. Granting a preliminary injunction would harm
other interested parties.
The grant of the preliminary injunction would cre-
ate a possibility of harm to other interested persons.
Although Plaintiffs contend that the injunction would
not cause irreparable harm to the Defendants, the
®* See “USCIS Releases Preliminary Numbers of FY2009 H-1B
Cap 8 Filings” (Apr. 10, 2008), available at www.uscis.gov.
° See Adams v. Freedom Forge Corp., 204 F.3d 475, 485 (3d Cir
2000) (“The irreparable harm requirement is met if a plaintiff
demonstrates a significant risk that he or she will experience
harm that cannot adequately be compensated after the fact by
monetary damages”); see also Morton v. Beyer, 822 F.2d 364,
371--72 (3d Cur. 1987) (holding that plaintiff claiming unlawful
discharge, and consequently, irreparable harm, was not entitled
to a preliminary injunction because the nature of plaintiff's rem-
edy was “purely economic in nature and thus compensable in
money’)
3la
technically-trained students who are law-fully pres-
ent in the United States would suffer hardships. The
students would have to leave the country to apply for
an H-1B visa. Furthermore, eligibility for OPT de-
pends on a student’s maintaining lawful status.'° The
grant of a preliminary injunction would harm these
students by forcing them to be classified as out-of-sta-
tus. Such harm must be taken into account before is-
suing a preliminary injunction.
D. A preliminary injunction would not serve the pub-
lic interest.
Lastly, Plaintiffs maintain that granting the pre-
liminary injunction is consistent with the public in-
terest in preserving jobs and wages for American
workers. There are, however, competing interests. As
discussed in the previous section, a prelimi-nary in-
junction would cause extreme hardships to lawfully
present guest students, such as being forced out-of-
status and facing deportation. In addition, the gov-
ern-ment points out that third parties and members
of the public would be harmed if the guest workers
were stripped of lawful status. The predictable guest.
worker system would turn into one of confusion and
unpredictability because neither the employers nor
the guest workers would know the length of time the
nonimmigrants were eligible for working.
The government also has a compelling interest in
being able to create necessary extensions to ease rigid
10 See 8 U.S.C. § 1258(a) (“The Secretary of Homeland Secu-
rity may, under such conditions as he may prescribe, authorize a
change from any nonimmigrant classification to any other non-
immigrant classification in the case of any alien lawfully admit-
ted to the Untied States as a nunimmigrant who ts continuing to
maintain that status...).
32a
time line requirements in order to maximize the ef-
ficiency of its programs. Since the federal government
has the “responsibility...to regulate immigration,”
it is essential to allow it a degree of flexibility to do
so. In re Alien Children Education Litigation, 501 F.
Supp. 544, 549 (S.D. Tex. 1980). The Supreme Court
has stated:
For reasons long recognized as valid, the respon-
sibility for regulating the relationship between the
United States and our alien visitors has been commit-
ted to the political branches of the Federal Govern-
ment. Since decisions in these matters may implicate
our relations with foreign powers, and since a wide
va-riety of classifications must be defined in the light
of changing political and economic circumstances,
such decisions are frequently of a character more ap-
propriate to either the Legislature or the Executive
than to the Judi-ciary...{[There is a] need for flexibility
in policy choices rather than the rigidity often charac-
teristic of constitutional adjudication.
Mathews v. Diaz, 426 U.S. 67, 81 (1976). In the in-
stant case, the DHS has identified a need for extend-
ing the post-OPT period and promulgating the IFR.
The administrative and practical purposes that un-
derlie the IFR support giving deference to the DHS in
implementing its immigration program.
IV. CONCLUSION
Although there are public interest arguments on
the sides of both Plaintiffs and the DHS, Plaintiffs
clearly fail the first three prongs of the test for a pre-
liminary in-junction. For the reasons given above, the
motion for a preliminary injunction is denied. The
Court also is concerned about whether Plaintiffs have
standing to bring this case. Standing is an issue that
33a
courts properly raise sua sponte at the outset of an
action. See, e.g., Munaf v. Geren, _ U.S. __, 128 S.
Ct. 2207 (2008) (calling for sua sponte dismissal). For
this reason, Magistrate Judge Shwartz has permitted
an expedited period of discovery related to standing,
which shall not be extended. The-reafter, the Court
orders the parties to brief whether this case should be
dismissed for lack of standing.
ACCORDINGLY IT IS on this 5th day of August,
2008
ORDERED that Plaintiffs’ Motion for Preliminary
Injunction is DENIED; and it is further
ORDERED that both parties bref by November 14,
2008 whether this case should be dismissed lack of
standing; and it is further
ORDERED that both parties shall have the oppor-
tunity to respond to the submissions by November 21,
2008.
/s/ Faith S. Hochberg
Hon. Faith S. Hochberg, U.S.D.J.
35a
Appendix D—Denial of Rehearing
(Aug. 17, 2009)
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
08-4642
THE PROGRAMMERS GUILD, INC.; AMERICAN
ENGINEERING ASSOCIATION, INC.; BRIGHT
FUTURE JOBS; MICHAEL AMANTI; MARK
BLACKBURN; TONI L. CHESTER; DAVID HU-
BER; JOHN G. MARSON; HARRISON PICOT, I;
PAUL E. POLAK; MIKE ROTHSCHILD; ROBERT
SANCHEZ; STEPHEN BERRY; TEPHANIE M.
BERRY,
Appellants
Vv.
MICHAEL CHERTOFF, In his capacity as Secretary
of Homeland Security, United States Department
of Homeland Security; UNITED STATES DEPART-
MENT OF HOMELAND SECURITY
SUR PETITION FOR REHEARING
Present: SCIRICA, Chief Judge, SUOVITER, McKEE,
RENDELL, BARRY, AMBRO, FUENTES, SMITH,
FISHER, CHAGARES, JORDAN, and HARDIMAN
Circuit Judges, and DIAMOND, District Judge*
‘As to panel rehearing only.
36a
The petition for rehearing filed by appellant in the
above entitled case having been submitted to the judg-
es who participated in the decision of this court and to
all the other available circuit judges of the circuit in
regular active service, and no judge who concurred in
the decision having asked for rehearing, and a major-
ity of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court en
banc, the petition for rehearing is denied.
By the Court,
MICHAEL A. CHAGARES
Circuit Judge
DATED: August 17, 2009
CRG/cc: John M. Miano, Esq.
Michael M. Hethmon, Esq.
Samuel P. Go, Esq.
37a
Appendix E—Student Visa Regulations Related
to Optional Practical Training
8 C.F.R. 214.2(f) Students in colleges, universities,
seminaries, conservatories, academic high schools, el-
ementary schools, other academic institutions, and in
language training programs—
[...]
(5) Duration of status—(i) General. Except for bor-
der commuter students covered by the provisions of
paragraph (f)(18) of this section, an F—1 student is
admitted for duration of status. Duration of status
is defined as the time during which an F—1 student
is pursuing a full course of study at an educational
institution approved by the Service for attendance
by foreign students, or engaging in authorized prac-
tical training following completion of studies, except
that an F—1 student who is admitted to attend a
public high school is restricted to an aggregate of 12
months of study at any public high school(s). An F—1
student may be admitted for a period up to 30 days
before the indicated report date or program start
date listed on Form I—20. The student 1s considered
to be maintaining status if he or she is making nor-
mal progress toward completing a course of study.
bead
(vi) Extension of duration of status and grant of
employment authorization.
(A) The duration of status, and any employ-
ment authorization ,ranted under 8 CFR
274a.12(c)(3)()(B) and (C_ of an F—1 student who
is the beneficiary of an H—1B petition and request
for change of status shall be automatically ex-
tended until October 1 of the fiscal year for which
such H-1B visa 1s being requested where such pe-
tition:
38a
(1) Has been timely filed; and (2) States that the
employment start date for the F—1 student is Oc-
tober 1 of the following fiscal year.
(B) The automatic extension of an F-—1 student’s
duration of status and employment authorization
under paragraph (f)(5)(vi)(A) of this section shall
immediately terminate upon the rejection, denial,
or revocation of the H—1B petition filed on such
F—1 student’s behalf. (C) In order to obtain the
automatic extension of stay and employment au-
thorization under paragraph (f)(5)(vi)(A) of this
section, the F—1 student, according to 8 CFR part
248, must not have violated the terms or condi-
tions of his or her nonimmigrant status. (D) An
automatic extension of an F—1 student’s duration
of status under paragraph (f)(5)(vi)(A) of this sec-
tion also applies to the duration of status of any
F—2 dependent aliens.
[...]
(6) Full course of study—(a) General. Successful
completion of the full course of study must lead to
the attainment of a specific educational or profes-
sional objective. A course of study at an institution
not approved for attendance by foreign students as
provided in § 214.3(a)(3) does not satisfy this re-
quirement. A “full course of study” as required by
section 101(a)(15)(F)(i) of the Act means:
(A) Postgraduate study or postdoctoral study at a
college or university, or undergraduate or postgrad-
uate study at a conservatory or religious seminary,
certified by a DSO [Designated School Official] as a
full course of study;
(B) Undergraduate study at a college or university,
certified by a school official to consist of at least
twelve semester or quarter hours of instruction per
academic term in those institutions using standard
39a
semester, trimester, or quarter hour systems, where
all undergraduate students who are enrolled for a
minimum of twelve semester or quarter hours are
charged full-time tuition or are considered full-time
for other administrative purposes, or its equivalent
(as determined by the district director in the school
approval process), except when the student needs
a lesser course load to complete the course of study
during the current term;
(C) Study in a postsecondary language, liberal arts,
fine arts, or other non-vocational program at a
school which confers upon its graduates recognized
associate or other degrees or has established that
its credits have been and are accepted uncondition-
ally by at least three institutions of higher learn-
ing which are either: (1) A school (or school system)
owned and operated as a public educational insti-
tution by the United States or a State or political
subdivision thereof; or (2) a school accredited by a
nationally recognized accrediting body; and which
has been certified by a designated school official to
consist of at least twelve clock hours of instruction
a week, or its equivalent as determined by the dis-
trict director in the school approval process;
(D) Study in any other language, liberal arts, fine
arts, or other nonvocational training program, cer-
tified by a designated school official to consist of at
least eighteen clock hours of attendance a week if
the dominant part of the course of study consists of
classroom instruction, or to consist of at least twen-
ty-two clock hours a week if the dominant part of
the course of study consists of laboratory work; or
(E) Study in a curriculum at an approved private
clementary or middle school or public or private
academic high school which is certified by a desig-
nated school official to consist of class attendance
40a
for not less than the minimum number of hours a
week prescribed by the school for normal progress
toward graduation.
(F) Notwithstanding paragraphs (f)(6)(i)(A) and
(f)(6)(i)(B) of this section, an alien who has been
granted employment authorization pursuant to the
terms of a document issued by the Commissioner
under paragraphs (f)(9)(i) or (f)(9)(ii) of this section
and published in the FEDERAL REGISTER shall
be deemed to be engaged in a “full course of study”
if he or she remains registered for no less than the
number of semester or quarter hours of instruction
per academic term specified by the Commissioner
in the notice for the validity period of such employ-
ment authorization.
(G) For F—1 students enrolled in classes for credit
or classroom hours, no more than the equivalent
of one class or three credits per session, term, se-
mester, trimester, or quarter may be counted to-
ward the full course of study requirement if the
class is taken online or through distance education
and does not require the student’s physical atten-
dance for classes, examination or other purposes
integral to completion of the class. An on-line or
distance education course is a course that is offered
principally through the use of television, audio, or
computer transmission including open broadcast,
closed circuit, cable, microwave, or satellite, audio
conferencing, or computer conferencing. If the F—1
student’s course of study is in a language study
program, no on-line or distance education classes
may be considered to count toward a student’s full
course of study requirement.
(H) On-campus employment pursuant to the terms
of a scholarship, fellowship, or assistantship is
Ala
deemed to be part of the academic program of a
student otherwise taking a full course of study.
[...]
(10) Practical training. Practical training may be au-
thorized to an F~—1 student who has been lawfully
enrolled on a full time basis, in a Service-approved
college, university, conservatory, or seminary for
one full academic year. This provision also includes
students who, during their course of study, were
enrolled in a study abroad program, if the student
had spent at least one full academic term enrolled
in a full course of study in the United States prior
to studying abroad. A student may be authorized 12
months of practical training, and becomes eligible
for another 12 months of practical training when he
or she changes to a higher educational level. Stu-
dents in English language training programs are
ineligible for practical training. An eligible student
may request employment authorization for practical
training in a position that is directly related to his
or her major area of study. There are two types of
practical training available:
[...]
(ii) Optional practical training.
(A) General. Consistent with the application and
approval process in paragraph (f)(11) of this sec-
tion, a student may apply to USCIS for autho-
nization for temporary employment for optional
practical training directly related to the student's
major area of study. The student may not begin
optional practical training until the date indicat-
ed on his or her employment authorization docu-
ment, Form I—766. A student may be granted au-
thorization to engage in temporary emplovment
for optional practical training:
A2a
(1) During the student’s annual vacation and at
other times when school is not in session, if the
student is currently enrolled, and is eligible for
registration and intends to register for the next
term or session;
(2) While school is in session, provided that prac-
tical training does not exceed 20 hours a week
while school is 1n session; or
(3) After completion of the course of study, or,
for a student in a bachelor’s, master’s, or doc-
toral degree program, after completion of all
course requirements for the degree (excluding
thesis or equivalent). Continued enrollment,
for the school’s administrative purposes, after
all requirements for the degree have been met
does not preclude eligibility for optional practi-
cal training. A student must complete all practi-
cal training within a 14-month period following
the completion of study, except that a 17-month
extension pursuant to paragraph (f)(10)(i1)(C) of
this section does not need to be completed within
such 14-month period.
(B) Termination of practical training. Authori-
zation to engage in optional practical training
employment is automatically terminated when
the student transfers to another school or begins
study at another educational level.
(C) 17-month extension of post-completion OPT
for students with a science, technology, engineer-
ing, or mathematics (STEM) degree. Consistent
with paragraph (f)(11)(i)(C) of this section, a qual-
ified student may apply for an extension of OPT
while in a valid period of post-completion OPT.
The extension will be for an additional 17 months,
for a maximum of 29 months of OPT, if all of the
following requirements are met.
43a
(1) The student has not previously received a
17-month OPT extension after earning a STEM
degree.
(2) The degree that was the basis for the stu-
dent’s current period of OPT is a bachelor’s,
master’s, or doctoral degree in one of the degree
programs on the current STEM Designated De-
gree Program List, published on the SEVP Web
site at http://www. ice.gov/sevis.
(8) The student’s employer is registered in the E-
Verify program, as evidenced by either a valid E-
Verify company identification number or, if the
employer is using a designated agent to perform
the E-Venfy queries, a valid EVerify client com-
pany identification number, and the employer is
a participant in good standing in the E-Verify
program, as determined by USCIS.
(4) The employer agrees to report the termina-
tion or departure of an OPT employee to the
DSO at the student’s school or through any oth-
er means or process identified by DHS if the ter-
mination or departure is prior to end of the au-
thorized period of OPT. Such reporting must be
made within 48 hours of the event. An employer
shall consider a worker to have departed when
the employer knows the student has left the em-
ployment or if the student has not reported for
work for a period of 5 consecutive business days
without the consent of the employer, whichever
occurs earlier.
(D) Action of the DSO-Non SEVIS schools. In
making a recommendation for practical training,
a designated school official must:
(1) Certify on Form [-538 that the proposed
employment is directly related to the student's
44a
major area of study and commensurate with the
student's educational level;
(2) Endorse and date the student's Form I-20 1D
to show that practical training in the student's
major field of study is recommended “full-time
(or part-time) from (date) to (date)”; and (3) Re-
turn to the student the Form I-20 ID and send
to the Service data processing center the school
certification on Form I—538.
(E) Periods of unemployment during post-comple
tion OPT. During post-completion OPT, F—1 sta-
tus is dependent upon employment. Students may
not accrue an aggregate of more than 90 days of
unemployment during any post-completion OPT
carried out under the initial post-completion OPT
authorization. Students granted a 17-month OPT
extension may not accrue an aggregate of more
than 120 days of unemployment during the total
OPT period comprising any post-completion OPT
carried out under the initial postcompletion OPT
authorization and the subsequent 17-month ex-
tension peniod.
45a
Appendix F—Optional Practical Training
Regulation Changes
(April 8, 2008)
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[DHS No. ICEB—2008—0002; ICE No. 2124—08]
RIN 1653—AA56
Extending Period of Optional Practical Training by 17
Months for F—1 Nonimmigrant Students With STEM
Degrees and Expanding Cap-Gap Rehef for All F—1
Students With Pending H—1B Petitions
AGENCY: U.S. Immigration and Customs Enforce-
ment, U.S. Citizenship and Immigration Services;
DHS.
ACTION: Interim final rule with request for com-
ments.
SUMMARY: Currently, foreign students in F—1 non-
immigrant status who have been enrolled on a full-
time basis for at least one full academic year in a col-
lege, university, conservatory, or seminary certified by
U.S. Immigration and Custom Enforcement’s (ICE’s)
Student and Exchange Visitor Program (SEVP) are
eligible for 12 months of optional practical training
(OPT) to work for a U.S. employer in a job directly
related to the student’s major area of study. This in-
terim final rule extends the maximum period of OPT
from 12 months to 29 months for F-1 students who
have completed a science, technology, engineering, or
mathematics (STEM) degree and accept employment
with employers enrolled in U.S. Citizenship and Im-
migration Services’ (USCIS’) E-Verify employment
verification program. This interim rule requires F—1
students with an approved OPT extension to report
46a
changes in the student’s name or address and changes
in the employer’s name or address as well as periodi-
cally verify the accuracy of this reporting information.
The rule also requires the employers of F—1 students
with an extension of postcompletion OPT authoriza-
tion to report to the student’s designated school offi-
cial (DSO) within 48 hours after the OPT student has
been terminated from, or otherwise leaves, his or her
employment with that employer rrior to end of the
authorized period of OPT.
This rule also amelorates the socalled “cap-gap”
problem by extending the authorized period of stay
for all F— 1 students who have a properly filed H—- 1B
petition and change of status request (filed under the
cap for the next fiscal year) pending with USCIS. If
USCIS approves the H—1B petition, the students will
have an extension that enables them to remain in the
United States until the requested start date indicated
in the H—1B petition takes effect. This interim final
rule also implements a programmatic change to allow
students to apply for OPT within 60 days of conclud-
ing their studies.
DATES: This interim final rule is effective April 8,
2008. Written comments must be submitted on or be-
fore June 9, 2008.
ADDRESSES: You may submit comments, which
must be identified by Department of Homeland Se-
curity docket number ICE B—2008—0002, using one of
the following methods:
Federal Rulemaking Portal: http:// www.regula-
tions.gov. Follow the instructions for submitting com-
ments.
- Mail: Office of Policy, U.S. Immigration and Cus-
toms Enforcement, Department of Homeland Secu-
4ila
rity, 4251 Street, NW., Room 7257, Washington, DC
20536.
- Hand Delivery/Courier: The address for sending
comments by hand delivery or courier is the same as
that for submitting comments by mail. Contact tele-
phone number is (202) 514-8693.
- Facsimile: Comments may be submitted by facsimi-
le at (866) 466— 5370.
Viewing Comments: Comments may be viewed on-
line at http:// www.regulations.gov or in person at US.
Immigration and Customs Enforcement, Department
of Homeland Security, Chester Arthur Building, 425
I Street, NW., Room 7257, Washington, DC 20536.
You must call telephone number (202) 514-8693 in
advance to arrange an appointment.
Public Participation
This is an interim final rule with a request for pub-
lic comment. The most helpful comments reference
the specific section of the rule using section number,
explain the reason for any recommended change, and
include data, information, and the authority that sup-
ports the recommended change.
Instructions: All submissions must include the
agency name and Department of Homeland Securi-
tydocket number ICEB—-2008—0002. All comments
(including any personal information provided) will
be postedwithout change to http://www.regulations.
gov. See ADDRESSES above for methods to submit
comments. Mailed submissions may be paper, disk, or
CD-ROM.
FOR FURTHER INFORMATION CONTACT:
Louis Farrell, Director, Student and
Exchange Visitor Program; U.S.
Immigration and Customs Enforcement,
48a
Department of Homeland Security;
Chester Arthur Building, 425 I Street, NW., Suite
6034, Washington, DC 20536;
telephone number (202) 305-2346. This is not a toll-
free number. Program information can be found at
http://www.ice.gov/sevis/.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background and Purpose
A. Optional Practical Training and Need To Extend
for F-1 Students With STEM Degrees
B. “Cap-Gap” and Need To Expand Relief to All
F—1 Students With Pending H-1B Petitions
II. Discussion of This Interim Final Rule
A. Extension of Optional Practical Training by 17
Months for F—1 Students With STEM Degrees
1. Requirements for Students Seeking a 17-Month
OPT Extension
2. Requirement for Employers of Students with a
17-Month OPT Extension
B. Expansion of Cap-Gap Relief for All F—1
Students With Pending H-1B Petitions
C. Related Changes to the OPT Provisions
1. Changes to Post-Completion OPT
2. Validation That OP’ Employment Is Related to
the Student’s Degree Program
{{f. Regulatory Requirements
A. Administrative Proceduve Act
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement
Fairness Act of 1996
D. Executive Order 12866
E. Executive Order 13132
F. Executive Order 12988 Civil Justice Reform
G. Paperwork Reduction Act
49a
List of Subjects in 8 CFR Part 214
TABLE OF ABBREVIATIONS
Abbreviation Amplification
APA. ...... Administrative Procedure Act
Se Application Support Center
AS ics Compliance Enforcement Unit
+. a U.S. Customs and Border Protection
CFR ...... Code of Federal Regulations
DHS ..... Department of Homeland Security
DSO ..... Designated School Official
EAD ...... Form I—766, Employment Authorization
Document
|. U.S. Immigration and Customs
Enforcement
ITRIRA .. legal Immigration Reform and Immigrant
Responsibility Act of 1996
INA ....... Immigration and Nationality Act of 1952,
as amended
oe Immigration and Naturalization Service
OMB. ..... Office of Management and Budget
CMe scene Optional Practical Training
RFA ...... Regulatory Flexibility Act
SEVIS .. Student and Exchange Visitor Information
System
SEVP ... Student and Exchange Visitor Program
STEM ... Science, Technology, Engineering, or Math
U.S. ...... United States
USA PATRIOT Act. Uniting and Strengthening
America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act
USCIS .. U.S. Citizenship and Immigration Services
I. Background and Purpose
A. Optional Practical Training and Need To Extend
by 17 Months for F—1 Students With STEM Degrees
50a
Section 101(a)(15)(F)G@) of the Immigration and
Nationality Act of 1952, as amended (INA), 8 U.S.C.
1101(a)(15)(F)G), establishes the F—1 nonimmigrant
classification for individuals who wish to come to the
United States temporarily to attend an academic or
language training institution certified by the Student
and Visitor Exchange Program (SEVP) for U.S. Im-
migration and Customs Enforcement (ICE). F—1 stu-
dents may remain in the United States for the dura-
tion of their educational programs if they otherwise
maintain status. 8 CFR 214.2(f(5). Once an F-1 stu-
dent has completed his or her course of study, and
any authorized practical training following comple-
tion of studies, the student must either transfer to
another SEVP-certified school to continue studies,
change to a different nonimmigrant status, other-
wise legally extend their period of authorized stay in
the United States, or leave the United States. 8 CFR
214.2(f)(5)(iv). F—-1 students are allowed 60 days after
the completion of such studies and practical training
to prepare for departure from the United States. 8
CFR 214.2(f)(5)(iv).
F—1 students generally are not authorized to work
in the United States during the term of their educa-
tional program, with limited exceptions. Currently,
students in F—1 nonimmigrant status who have been
enrolled on a full-time basis for at least one full ac-
ademic year in a college, university, conservatory,
or seminary certified by SEVP, and have otherwise
maintained status, are eligible to apply for up to 12
months of optional practical training (OPT) to work
for a U.S. employer in a job directly related to the
student’s major area of study. 8 CFR 214.2(f)(10). F-1
students may obtain OPT either during their educa-
tional program (“pre-completion OPT’) or after the
5la
student graduates (“postcompletion OPT’). The stu-
dent remains in F-1 status throughout the OPT pe-
riod.
An F-1 student in post-completion OPT, therefore,
does not have to leave the United States within 60
days after graduation, but is authorized to remain in
the United States for the entire postcompletion OPT
period. If the student has not used any pre-completion
OPT, then the student’s post-completion OPT period
could be up to 12 months. Once the post-completion
OPT period has concluded, the student must depart
the United States within 60 days, unless he or she
changes status or otherwise legally extends his or her
stay in the United States (e.g., starts a graduate pro-
gram).
During his or her authorized period of stay, a quali-
fied F—1 student may receive a change of nonimmi-
grant status to H-1B nonimmigrant status if an em-
ployer has timely filed, and USCIS grants, a petition
on behalf of that student. The employer must submit
a Form I—129, Petition for a Nonimmigrant Worker to
USCIS. The Form includes a section for the employ-
er to indicate whether change of status is being re-
quested for the beneficiary (if eligible), or whether the
beneficiary will instead apply for a visa outside of the
United States at a U.S. consulate. USCIS may grant
H-—1B status to eligible nonimmigrants employed in
or offered a job by the petitioner in a specialty occu-
pation. 8 CFR 214.2(h)(1)(i)(B). A specialty occupa-
tion is one that requires the theoretical and practical
application of a body of specialized knowledge and a
bachelor’s or higher degree in the specific specialty as
a minimum qualification. INA Section 214(3).
Congress, however, has prohibited USCIS from
granting H-1B status to more than 65,000 nonimm1-
52a
grant aliens during any fiscal year (referred to as the
“cap”).' See INA Section 214(g). The H—1B category is
greatly oversubscribed.
When USCIS determines that the cap will be
reached for that fiscal year, based on the number of
H-—1B petitions received, it announces to the public
the final day on which USCIS will accept such peti-
tions for adjudication in that fiscal year. USCIS re-
fers to this day as the “final receipt date.” See 8 CFR
214.2(h)(8)(i1)(B). USCIS then randomly selects from
among the petitions received on the final receipt date
the number of petitions necessary to reach the 65,000
cap. Jd. If the final receipt date falls within the first
five business days on which petitions subject to the
applicable cap may be filed, USCIS will randomly se-
lect the number of petitions necessary to reach the
65,000 cap from among those filed during the accep-
tance period.
There is a significant amount of competition among
employers of highly skilled workers for the lhmited
number of H—1B visas available each fiscal year. Each
year, the cap has been reached earlier in the year.
For FY05, the cap was reached on October 1, 2004,
the first day of that fiscal year. In FY06, the cap was
reached on August 10, 2005; and in FY 07, the cap
' The 65,000 person cap does not, however, apply to certain
limited classes of aliens, including individuals who are employed
by, or have received offers of employment at: (1) An institution
of higher education, or a related or affiliated nonprofit entity, or
(2) a nonprofit research organ:zation or a governmental research
organization. Additionally, there is an exemption from the H—-1B
cap for up to 20,000 individuals who are advanced degree gradu-
ates (master’s degree or higher) from U‘S. institutions of higher
education.
53a
was reached on May 26, 2006. Last year, the cap was
reached on April 2, 2007, the first business day for
filing. On that single day, USCIS received more than
twice the number of petitions needed to reach the cap
for that fiscal year.’
Many employers who hire F—1 students under the
OPT program eventually file a petition on the students’
behalf for classification as an H—1B worker in a spe-
cialty occupation. If the student is maintaining his or
her F—1 nonimmigrant status, the employer may also
include a request to have the student’s nonimmigrant
status changed to H—1B. Because the H—1B category
is greatly oversubscribed, however, OPT employees
often are unable to obtain H— 1B status within their
authorized period of stay in F—1 status, including the
12-month OPT period, and thus are forced to leave the
country. The inability of U.S. employers, in particular
in the fields of science, technology, engineering and
mathematics, to obtain H—1B status for highly skilled
foreign students and foreign nonimmigrant workers
has adversely affected the ability of U.S. employers to
recruit and retain skilled workers and creates a com-
petitive disadvantage for U.S. companies.
The National Science Foundation (NSF), in its Sci-
ence and Engineering Indicators 2008 (SEIND0O8),°
took note of these trends. NSF observed that global-
ization of science and technology has proceeded at a
quick pace since the early 1990s. Increased interna-
tional travel coincided with the development of the
Internet as a tool for unfettered worldwide informa-
tion dissemination and communication. “By the late
* See USCIS Update at http://www uscis.gov/files/pressrelease/
H1BFY08Cap040307 pdf.
3 This publication may be found at http://www_nsf gov/statis-
tics/seindO08.
54a
1990s,” the report continues “many governments had
taken note of these developments. They increasingly
looked to the development of knowledgeintensive eco-
nomics for their countries’ economic competitiveness
and growth.” SEINDO8 at 0-4. NSF further reports
that “twenty-five percent of all college education sci-
ence and engineering occupations in 2003 were for-
eign born, as were [forty percent] of doctorate holders
in science and engineering.” According to the Task
Force on the Future of American Innovation, Measur-
ing the Moment: Innovation, National Security and
Economic Competitiveness (November 2006),‘ the pro-
portion of American students in the United States ob-
taining degrees in STEM fields has fallen from 32% to
27%. Later, the report reveals that since 2000, there
have been more foreign graduate students studying
engineering and the physical, computer and math-
ematical sciences in U.S. graduate schools than U.S.
citizens and permanent residents.
The NSF goes on to say that “U.S. [Gross Domes-
tic Product] growth is robust but cannot match large,
sustained increases in China and other Asian econo-
mies.” And because of this globalization, the United
States, while still the leading producer of scientific
knowledge, faces a labor market in which it must in-
creasingly compete with these countries. The econo-
mies of the Organization of Economic Cooperation
and Development (OECD) countries, particularly
Australia, Canada, and certain European countries,
are also providing increased opportunities for STEM
scientists. And STEM graduates from the growing
economies of China, India, and Russia, for example,
have increased employment opportunities in their na-
* This report may be accessed at http://www.futureofinnov
ation.org/PDF/BII-FINALHighRes-11-14-06_nocover.pdf.
55a
tive countries. Thus, the Task Force on the Future of
American Innovation reports “the impact of China and
India on global R&D [research and development] is sig-
nificant and growing rapidly: In 1990, these two coun-
tries accounted for 3.4% of foreign R&D staff, which
increased to 13.9% by 2004. By the end of 2007, China
and India will account for 31% of global R&D staff,
up from 19% in 2004.” See Measuring the Moment:
Innovation, National Security and Economic Compet-
tiveness (November 2006). In short, with their large
and growing populations of STEMgraduate scientists,
high-tech industries in these three countries and oth-
ers in the OECD now compete much more effectively
against the U.S. high technology industry.
DHS has received communications from a wide
range of concerned stakeholders, including compa-
nies in the high-tech industry, members of Congress,
and U.S. educational institutions, about the adverse
impact on the U.S. economy and the ability of U.S.
schools to attract talented foreign students for STEM
study programs due to the immigration and employ-
ment practices in the United States. Representatives
of high-tech industries in particular have raised sig-
nificant concerns that the inability of U.S. companies
to obtain H—1B visas for qualified F—1 students in a
timely manner continues to result in the loss of skilled
technical workers to countries with more lenient em-
ployment visa regimes, such as Canada and Austra-
lia. See Testimony of Bill Gates, Chairman, Microsoft
Corporation, before the U.S. Senate Committee on
Health, Education, Labor & Pensions, “Strengthen
ing American Competitiveness for the 21st Century”
(Washington. D.C.; March 7, 2007).°
* A copy of this testimony can be accessed at http://help senate
gov/hearings/2007_03_07/ Gates.pdf.
56a
Notably, the European Union recently proposed a
“Blue Card” program, similar to the U.S. H—1B visa
program, under which skilled workers would be able
to obtain a temporary work visa for employment in
the European Union. Unlike the H—1B program, the
European Union’s Blue Card program proposal would
not have a cap. The European Union estimates that
workers would usually be able to obtain their visas
in 90 days or less. If the Blue Card proposal is ad-
opted, U.S. employers could be at a competitive dis-
advantage to employers in the European Union when
recruiting foreign national candidates. U.S. high-tech
employers are particularly concerned about the H-1B
cap because of the critical shortage of domestic sci-
ence and engineering talent and the degree to which
high-tech employers are as a consequence necessarily
far more dependent on foreign workers than other in-
dustries. See The National Science Foundation, Rising
Above the Gathering Storm: Energizing and Employ-
ing America for a Brighter Economic Future (2007),
pp. 78-83 (describing the critical shortages of science,
math, and engineering talent in the United States).®
Many F-1 students who graduated last spring will
soon be concluding their 12-month periods of OPT.
Unless employers for those students are able to ob-
tain H—1B visas when the filing period commences
on April 1, 2008 for FY09 (October 1, 2008), many of
these students will need to leave the United States
when their current postcompletion OPT period con-
cludes.
This interim final rule addresses the immediate
competitive disadvantage faced by U.S. high-tech
"This publication may be found at http://www.nap.edu/catalog.
php?record_id=11463.
57a
industries, and thus may quickly ameliorate some
of the adverse impacts on the U.S. economy. It does
this by allowing an F-—1 student already in a period
of approved postcompletion OPT to apply to extend
that period by up to 17 months (for a maximum total
period of 29 months of OPT) if the student received
a STEM degree. As discussed in Section II below,
this extension is only available to F—1 students with
STEM degrees who have accepted employment with
an employer registered and in good standing with US-
CIS’ E-Verify employment verification program. In
addition, employers of F—1 students who qualify for
this 17-month extension of post-completion OPT must
report to the student’s school DSO within 48 hours if
the student’s employment ends prior to the end of the
student’s authorized OPT employment period.
B. “Cap-Gap” and Need To Expand Relief to All F-1
Students With Pending H-1B Petitions
As discussed above, nonimmigrant F—1 students on
post-completion OPT maintain valid F—1 status until
the expiration of the OPT period and the subsequent
60-day departure preparation period. Employers of
students already working for the employer under
OPT often file petitions to change the students’ status
to H-1B so that these nonimmigrant aliens may con-
tinue working in their current or a similar job. Many
times, however, an F—1 student’s OPT authorization
will expire prior to the student being able to assume
the employment specified in the approved H—1B peti-
tion.
Currently, anemployer may not file, and USCIS may
not approve, an H—1B petition submitted earlier than
six months before the date of actual need for the ben-
eficiary’s services or training. 8 CFR 214.2(h)(9)(i)(B).
As a result, the earliest date that an employer can file
58a
an H—1B petition for consideration under the next fis-
cal year cap is April 1, for an October 1 employment
start date. If that H-1B petition and the accompany-
ing change of status request are approved, the earliest
date that the student may start H-1B employment is
October 1. Consequently, F—1 students who are the
beneficiaries of approved H—1B petitions, but whose
period of authorized stay (including authorized peri-
ods of post-completion OPT and the subsequent 60-
day departure preparation period) expires before the
October 1 H—-1B employment start date, would have
a gap in authorized stay and employment. This situa-
tion is commonly referred to as the “cap-gap.”
An F-—1 student in a cap-gap situation would have
to leave the United States and return at the time his
or her H—1B status becomes effective at the beginning
of the next fiscal year. This gap creates a hardship to
a number of students and provides a disincentive to
remaining in the United States for employment. The
cap-gap therefore creates a recruiting obstacle for
U.S. employers interested in obtaining F—1 students
for employment and submitting H—1B petitions on
their behalf. Moreover, when the student is already
working for a U.S. company on OPT and has to leave
the United States, frequently for several months, dur-
ing the cap-gap period, the employer suffers a major
disruption.
USCIS is already authorized to extend the status of
F-1 students caught in a cap-gap between graduation
and the start date on his or her approved H-—1B pe-
tition. 8 CFR 214.2(f)(5)(vi). However, before USCIS
can offer students any relief from the cap-gap, it must
first determine that the cap has been reached for the
current fiscal year, or is likely to be reached prior to
the end of the current fiscal year, and then publish
59a
a notice in the Federal Register announcing that
status is extended for students with pending H—1B
petitions. Significantly, the existing regulations do
not take into account the fact that the H—1B category
is now oversubscribed to such a degree that USCIS’
final receipt date for petitions is now announced even
before the start of the fiscal year for which the peti-
tions are being submitted and, in the absence of an
expansion of the 65,000 cap by Congress, this state of
affairs will likely continue indefinitely. The existing
regulations, therefore, are not an effective means of
addressing the cap-gap problem suffered by student
beneficiaries of pending H—1B petitions (and their
employers).
This interim rule amends USCIS procedures by
eliminating the requirement that USCIS issue a Fed-
eral Register notice. Instead, this rule extends the
authorized period of stay, as well as work authoriza-
tion, of any F—1 student who is the beneficiary of a
timely-filed H—1B petition that has been granted by,
or remains pending with, USCIS. The extension of
status and work authorization terminates on October
1 of the fiscal year for which the H—1B visa has been
requested. This amendment better reflects the real-
ity of the current situation, where demand for H—1B
visas is so high that USCIS regularly receives enough
petitions to reach the cap before the beginning of the
fiscal year for which petitions are filed,and offer more
substantial cap gap relief to both students and em-
ployers.
60a
II. Discussion of This Interim Final Rule
A. 17-Month Extension of Optional Practical
Training for F—1 Students Who Have Obtained a
STEM Degree
This interim rule will allow F—1 students who have
received a degree in a STEM field to obtain an exten-
sion of their existing post-completion OPT period for
up to 17 months, for a maximum period of post-com-
pletion OPT of 29 months. The extension, however,
is only available to students who are employed, or
will be employed, by an employer enrolled (and deter-
mined by USCIS to be in good standing) in USCIS’ E-
Verify employment verification program at the time
the student applhies for the 17-month extension. A stu-
dent seeking an extension must agree to report to a
DSO at his or her school the following: Changes to the
student’s name, the student’s residential and mailing
address, the student’s employer, and the address of
the student’s employer. The student must also report
to a DSO every six months from the date the OPT ex-
tension starts to verify this information. In addition,
the employer of a student under extended OPT must
report to the student’s school DSO within 48 hours
after the student leaves employment with that em-
ployer. The DSO must report all of this information
in SEVIS.
1. Requirements for Students Seeking a 17-Month
OPT Extension
This interim final rule will allow qualified F—1 stu-
dents who currently have approved post-completion
OPT to apply for a 17-month extension of OPT. The
student’s degree, as shown is SEVIS, must be a bach-
elor’s, master’s, or doctorate degree with a degree
6la
code that is on the current STEM Designated Degree
Program List.
The STEM Designated Degree Program List is
based on the “Classification of Instructional Pro-
grams (CIP) developed by the U.S. Department of
Education’s National Center for Education Statis-
tics (NCES). See Classification of Instructional Pro-
grams—2000: (NCES 2002-165) U.S. Department of
Education, National Center for Education Statistics.
Washington, DC: U.S. Government Printing Office.’
To be eligible for the 17-month OPT extension, a stu-
dent must have received a degree in the following:
- Actuarial Science. NCES CIP Code 52.1304
- Computer Science: NCES CIP Codes 11.xxxx
(except Data Entry/Microcomputer Applications,
NCES CIP Codes 11.06xx)
- Engineering: NCES CIP Codes 14.xxxx
- Engineering Technologies: NCES CIP Codes
15.xxxx
- Biological and Biomedical Sciences: NCES CIP
Codes 26.xxxx
- Mathematics and Statistics: NCES CIP Codes
7.XXxXx
- Military Technologies: NCES CIP Codes 29.xxxx
- Physical Sciences: NCES CIP Codes 40.xxxx
- Science Technologies: NCES CIP Codes 41.xxxx
- Medical Scientist (MS, PhD): NCES CIP Code
51.1401
The approved list is available on SEVP’s Web site
at http://www.ice.gov/sevis. DHS welcomes comment
on the list and any recommendations for additional
degrees that the Department should consider for in-
* This publication may be found at http://nces.ed.gov/
pubs2002/2002165_ 2 pdf.
62a
clusion in the list. DHS will continue to work with
interested parties to evaluate the degrees that may be
added to this list in the future, and will be reaching
out to other agencies in the development of the final
rule. The Department, however, must also continue to
ensure that the extension remains limited to students
with degrees in major areas of study falling within a
technical field where there is a shortage of qualified,
highly-skilled U.S. workers and that is essential to
this country’s technological innovative competitive-
ness.
DHS will announce any future changes to the list
on this Web site. Note that catch-all NCES CIP codes
ending in “99” are not considered STEM designated
degrees.
Students who wish to extend OPT must request
that their DSO recommend the 17-month OPT exten-
sion. DSOs recommending the extension must veri-
fy the student’s eligibility, certifythat the student’s
degree is on the STEM Designated Degree Program
List, and ensure that the student is aware of his or
her responsibilities for maintaining status while on
OPT. The DSO must make the recommendation to
extend OPT for the student through SEVP’s Student
and Exchange Visitor Information System (SEVIS),
a Webenabled database for the collection of informa-
tion related to F, M and J nonimmigrants, certified
schools, and State Department approved exchange
visitor programs. SEVP will implement an interim
update to SEVIS to ensure schools can recommend ex-
tending the authorized OPT period for 17 months for
qualified students. The changes will be minimal due
to the short time for planning and the reduced testing
cycle. SEVP is also planning a major SEVIS release in
the first part of FY 2009 to more fully support the new
63a
regulatory requirements. SEVP will publish interim
instructions for the period between the interim update
and the major release and provide training opportuni-
ties for DSOs. SEVIS help desk personnel will provide
assistance with the proper interim procedures. Once
the DSO recommends a student for the extension, the
student must submit a Form I—765 and appropriate
fees (as indicated in the form instructions) to USCIS.
Instructions for filing the Form I—765 can be found at
USCIS’ Web site at http://www.uscis. gov.
This interim final rule also extends EADs for stu-
dents with pending requests for extension of postcom-
pletion OPT. An F—1 student who has properly filed
Form I-—765 prior to the end date of his or her post
completion OPT is allowed to maintain continuous
employment for up to 180 days while USCIS adjudi-
cates the request for the extension. To implement the
changes discussed in this rulemaking, USCIS is mak-
ing conforming amendments to Form I—765 to ensure
that that the F—1 students seeking a 17-month exten-
sion of their post-completion OPT are, in fact, eligible
to do so. USCIS is amending this form to add, among
other things, a new question #17 asking students to
identify the degree they have received, so that USCIS
may determine that the student has received a de-
gree in a STEM field. The new Form I—765 also will
ask the student seeking the extension to provide the
name of their employer (as listed in E-Verify), and
their employer's E-Verify Company I.D. number or, if
the employer is using a Designated Agent to perform
the E-Verify queries, a valid EVenfy Chent Company
I.D. number
64a
2. Requirement for Employers of Students With a 17-
Month OPT Extension
a. USCIS E-Verify Employment Verification
Program
As discussed above, only students who are employed
by employers who have enrolled, and are determined
by USCIS to be in good standing, in USCIS’ E-Ver-
ify program will be eligible for the 17-month exten-
sion of post-completion OPT. The E-Verify program
is an Internet-based system operated by USCIS, in
partnership with the Social Security Administration
(SSA). E-Verify is currently free to employers and is
available in all 50 states, the District of Columbia,
Puerto Rico, Guam, and the U.S. Virgin Islands. E-
Verify electronically compares information contained
on the Employment Eligibility Verification Form I-—
9 (herein Form I—9) with records contained in SSA
and DHS databases to help employers verify identity
and employment eligibility of newly-hired employees.
This program currently is the best means available
for employers to determine employment eligibility
of new hires and the validity of their Social Security
Numbers.
Before an employer can participate in the E-Verify
program, the employer must enter into a Memoran-
dum of Understanding (MOU) with DHS and SSA.
This memorandum requires employers to agree to
abide by current legal hiring procedures and to en-
sure that no employee will be unfairly discriminated
against as a result of the E-Verify program. Viola-
tion of the terms of this agreement by the employer
is grounds for immediate termination of its participa-
tion in the program.
65a
Employers participating in E-Verify must still com-
plete a Form I—9 for each newly hired employee, as re-
quired under current law. Following completion of the
Form I—9, the employer must enter the newly hired
worker's information into the E-Verify Web site, and
that information is then checked against information
contained in SSA and USCIS databases. E-Verify
compares employee information against more than
425 million records in the SSA database and more
than 60 million records stored in the DHS database.
Currently, 93 percent of all employer queries are in-
stantly verified as work authorized.
It is important to note that, once an employer enrolls
in E-Verify, that employer is responsible for verifying
all new hires, including newly hired OPT students
with 17-month OPT extensions, at the hiring site(s)
identified in the MOU executed by the employer and
DHS. New hires must be verified to be authorized to
work in the United States through E-Verify within
three days of hire. If, however, an employer enrolls in
E-Verify to retain the employment of an OPT student,
the employer may not verify the employment elig:-
bility of the OPT employee in E-Verify as the MOU
prohibits the verification of existing employees. Ad-
ditional information on enrollment and responsibili-
ties under E.Verify can be found at http:// www.uscis.
gov/E-Verify.
Employers can register for E-Verify on-line at http://
www.uscis.gov/EVerify. The site provides instructions
for completing the MOU needed to officially register
for the program.
b. Emplover Reporting Requirement
SEVP’s ability to track nonimmigrant students in
the United States relies on reporting by the students’
66a
DSOs. DSOs obtain the needed information from the
school’s recordkeeping systems and contact with the
students. Students on OPT, however, are often away
from the academic environment, making it difficult
for DSOs to ensure proper and prompt reporting on
student status to SEVP. While DHS regulations cur-
rently require DSOs to update SEVIS, the current re-
porting requirements depend entirely on the student’s
timely compliance. DSOs are not currently required
to review and verify information reported by students
on a recurring basis. This combination of factors hin-
ders systematic reporting and SEVP’s ability to track
F -1 students during OPT.
Accordingly, DHS will only extend post-completion
OPT for students employed by employers that agree
to report when an F-1 student on extended OPT ter-
minates or otherwise leaves his or her employment
with the employer prior to end of the authorized pe-
riod of OPT. The employer must report this informa-
tion to the DSO of the student’s school no later than
48 hours after the student leaves employment. Em-
ployers must report this information to the DSO at
the student’s school unless DHS announces another
means to report such information through a Feder-
al Register notice. The contact information for the
DSO is on the student’s Form I-20. DHS welcomes
comments on possible means for directly reporting to
DHS, such as through electronic means similar to or
associated with the E-Verify platform.
B. Expansion of Cap-Gap Relief for All F—1 Students
With Pending H-1B Petitions
Currently, F—1 students who are the beneficiaries
of approved H—1B petitions, but whose period of ad-
mission (including authorized periods of post-comple-
tion OPT an
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.