The D.C. Court of Appeals Doubled Down on a Decision Disastrous for American Workers

Summary

The D.C. Circuit Court of Appeals issued two misguided decisions, one in 2022 and one in 2024, that undermine our immigration laws and imperil American workers. The Supreme Court declined to review the first case — Washington Alliance of Technology Workers v. DHS (Washtech) — but it now, as John Miano has also noted, has an opportunity to review the second decision — Save Jobs USA v. DHS. Let’s hope the Court chooses to do so.

• In Washtech, the D.C. Circuit refused to vacate DHS’s 2016 rule allowing foreign STEM graduates of U.S. universities to work for three years post-graduation under “Optional Practical Training”. Yet the Immigration and Nationality Act contains not one word about OPT. And a foreign student who comes here “solely for the purpose of pursuing … a course of studies” can hardly be called a student after having completed their studies. But most egregious about the rule was that DHS used it to deliberately subvert Congress’s goal of protecting American college students from harm caused by the H-1B program. Congress had twice declined to permanently increase the H-1B numerical cap so as “not [to] imperil the future careers of … young American[]” computer science students. But to protect employers from being “harmed” by Congress’s refusal, DHS issued a rule in 2008 letting post-grad foreign STEM “students” work for 17 months more than they already could under OPT. After a federal court vacated the rule in 2015, DHS issued its 2016 rule, expanding STEM OPT for 24 months. There are now over 100,000 aliens working under STEM OPT. Optional Practical Training might more aptly be described as an Obnoxious Practical Joke on Congress and American workers.
• The D.C. Circuit significantly undermined the INA by ruling that the requirements Congress set forth for the student visa program only apply during the visa issuance process. Once foreign students are admitted to the U.S., DHS can tell them that they no longer need comply!
• The D.C. Circuit then applied its Washtech holding to the H-1B program itself in its Save Jobs USA decision. Despite Congress strictly limiting the number of H-1B aliens and including provisions to protect American workers from the effects of the program, the Obama administration issued a rule in 2015 allowing the spouses of certain H-1B workers to themselves work. Yet the INA nowhere states that H-1B spouses (here on H-4 visas) can work, even though it provides work authorization for the spouses of other temporary workers. And none of the H-1B program’s safeguards apply to spouses — they can work for any employer in any occupation and need not be paid the prevailing wage.
• Save Jobs USA is composed of computer professionals who worked at Southern California Edison until they were replaced by H-1B workers. It challenged DHS’s spouse rule in federal court. The district court ruled against Save Jobs USA and, last August, the D.C. Circuit affirmed that decision. Save Jobs USA has now petitioned the Supreme Court to review the case — both because the INA does not authorize employment for H-1B spouses and because Congress’s rules for the H-1B program never stop applying.

I urge the Supreme Court to review Save Jobs USA.

Washington Alliance of Technology Workers v. DHS

In 2022, the D.C. Circuit Court of Appeals issued a fundamentally flawed decision in Washington Alliance of Technology Workers v. DHS (Washtech). The court refused to vacate as arbitrary and capricious DHS’s 2016 rule allowing foreign STEM (science, technology, engineering and math) students attending U.S. universities to work in the U.S. for three years post-graduation pursuant to “Optional Practical Training” (OPT).

Put aside the fact that the Immigration and Nationality Act (INA) contains not one word about OPT. Put aside the fact that a foreign student who comes here “temporarily and solely for the purpose of pursuing … a course of studies” can hardly still be called a “student” after having completed their course of studies. What is most egregious about the rule is that DHS deliberately devised it to subvert Congress’s goal of protecting American college students from harm caused by the H-1B visa program for foreign computer engineers, software developers, and other specialized workers. Congress has twice declined to permanently increase the H-1B program’s numerical cap, with the House Judiciary Committee explaining that “Congress should not imperil the future careers of … young American[ computer science students] by expanding the H–1B quota indefinitely.” In order to protect employers from being “harmed” by Congress’ refusal, DHS promulgated a 2008 rule to let an unlimited number of post-graduation foreign “students” stay here and work for U.S. employers as computer engineers, software developers, and other specialized workers for 17 months more than the one year they already could under OPT. In 2015, a federal court vacated the 2008 rule but allowed it to stay in effect until 2016 to give DHS time to write a new rule. DHS then promulgated its 2016 rule, taking the opportunity to expand STEM OPT from 2008’s 17 months to 24 months.

Deliberately subvert Congress’s intent? DHS wasn’t coy about doing so, brazenly stating in its 2008 rule that:

• Congress … has prohibited [DHS] from granting H–1B status to more than 65,000 … aliens during any fiscal year.

• The inability … to obtain H–1B status for highly skilled foreign students … has adversely affected the ability of U.S. employers to recruit and retain skilled workers and creates a competitive disadvantage.

• [T]he [U.S.] must be successful in the increasing international competition for … scientists and engineers. … This rule will help ease this difficulty [created by Congress] by adding an estimated 12,000 OPT students to the STEM-related workforce … represent[ing] a significant expansion of the available pool of skilled workers.

12,000? DHS reports that there were 122,101 international students participating in STEM OPT in 2023, and reports its issuance of 62,036 STEM OPT authorizations with employment start dates during calendar year 2023, up from in 2,128 in 2008 (the 2008 rule becoming effective on April 8, 2008), 27,493 in 2015 and 41,782 in 2016 (the 2016 rule becoming effective on May 10, 2016).

Did I mention that at a D.C. dinner party in 2007, a Microsoft lobbyist asked DHS Secretary Michael Chertoff to issue a regulation to do precisely what DHS’s 2008 and 2016 rules did, explaining that in light of the H-1B program’s “severely insufficient base annual cap”, “Microsoft … must have access to the talent it needs” and “the Administration … can take a simple, immediate step to help address this crisis: extend … the period that students can work … for OPT”.

Optional Practical Training might more aptly be called an Obnoxious Practical Joke on Congress and American Workers.

In its decision, the D.C. Circuit significantly undermined the duly enacted immigration laws written by Congress by ruling that the requirements Congress set forth for the “F” student visa program only apply during the visa issuance process. Once foreign students are admitted to the U.S., DHS in its beneficence can tell them that they no longer need comply!

Washtech sought Supreme Court review, but the Court denied its Petition for a Writ of Certiorari. My colleague Julie Axelrod and I had written an amicus brief on behalf of the Center for Immigration Studies, urging the Court to take up the case.

The D.C. Circuit implied that its ruling could easily apply to all other temporary visa programs, so long as DHS’s “[t]ime-and-conditions rules [are] reasonably related to the purpose of the nonimmigrant visa class”. Judge Neomi Rao warned in her dissent from the D.C. Circuit’s denial of a request for a rehearing en banc that “On the majority’s reading, the highly specific requirements of the F-1 provision define only requirements of entry, rather than ongoing conditions for an alien to remain in the [U.S.]. The majority explicitly recognizes that its reasoning and analysis applies to all nonimmigrant categories.”

Save Jobs USA v. DHS

The D.C. Circuit took the inevitable next step in its August 2, 2024, decision in Save Jobs USA v. DHS. Save Jobs USA involves the H-1B program, the very program whose congressionally mandated safeguards DHS did an end-run around with its STEM OPT rules. Despite Congress strictly limiting the number of aliens who can receive H-1B status and writing provisions to try to protect American workers from the effects of the H-1B program (however ineffectual such provisions have proven to be), the Obama administration concluded that it had the authority to allow the accompanying (H-4) spouses of H-1B workers to also work in the U.S. DHS thus promulgated a rule in 2015 allowing spouses to work if the H-1B workers’ employers are seeking legal permanent residence for the H-1B workers. DHS could point to no provision in the INA stating the H-4 spouses could work — even though in other instances, such as with “L” intracompany transferee visas, Congress has specifically provided work authorization for the spouses of temporary workers. And none of the H-1B program’s putative protections for American workers apply to the spouses of H-1B workers; e.g., they can work for any employer in any occupation and don’t need to be paid the prevailing wage.

Save Jobs USA “is an unincorporated group of computer professionals who were employed at Southern California Edison until they were replaced by foreign workers on H-1B visas in 2015”.¹ In 2021, it challenged DHS’s H-4 employment authorization rule in the U.S. District Court for the District of Columbia.² The district court ruled in favor of the rule and against Save Jobs USA in 2023 in Save Jobs USA v. DHS. Then, last August, the D.C. Circuit affirmed the district court’s decision.

The D.C. Circuit wrote that “DHS says this court’s recent decision in Washtech interpreted the [INA] to authorize immigration-related employment rules like the H-4 Rule.” The court agreed:

• Here, DHS authorized certain nonimmigrants to work in the [U.S.] — just like in Washtech. And to do so, DHS relied on § 1184(a)(1) … of the INA — just like in Washtech.

• This court has already [in Washtech] interpreted the relevant provisions of the INA to answer a similar question in favor of DHS. … Save Jobs USA has not meaningfully distinguished this case from that binding precedent.

• [A]ccording to our recent precedent … Congress, through the INA, “granted the Executive power to set the duration and terms of statutorily identified nonimmigrants’ presence in the [U.S.].”

I think Save Jobs USA may have hurt the D.C. Circuit’s feelings. The court noted that:

Save Jobs USA makes little effort trying to meaningfully distinguish this case from Washtech. Instead, it disparages Washtech, arguing that it “held that the [INA] confers on DHS the vast power to permit alien employment through regulation through ancillary provisions that do not even mention employment.”

As the end of that last sentence suggests, Save Jobs USA disagrees with Washtech — and would like us to overrule it. … But we “cannot overrule a prior panel’s decision, except via an Irons footnote or en banc review.”

Of course, the D.C. Circuit had previously rejected en banc review of Washtech. Wasn’t me, couldn’t be, I was at a spelling bee!

Recently, Save Jobs USA filed a Petition for Writ of Certiorari with the Supreme Court. As the Petition explains, “Neither the district court nor the D.C. Circuit examined Congress’ … visa terms [for the spouses of H-1B workers] because of the latter’s precedent that relegates visa terms to only being entry requirements … that DHS can disregard in regulation.” Thus, one of the questions Save Jobs USA asks the Court to resolve is whether “the statutory terms defining nonimmigrant visas … mere threshold entry requirements that cease to apply once an alien is admitted or do they persist and dictate the terms of a nonimmigrant’s stay in the [U.S.]”

The Center for Immigration Studies’ Amicus Brief

For those interested in the troubling consequences of allowing DHS to ignore congressionally imposed requirements on temporary visa programs, what follows is a slightly modified excerpt from the amicus brief that Julie Axelrod and I wrote urging the Supreme Court to grant a writ of certiorari in Washtech.

In Washtech, the D.C. Circuit reached a troubling conclusion: “The F-1 provision itself shows that the student-visa entry criteria are not terms of stay. … Correctly understood, [it] sets threshold criteria for entry; it does not spell out the ongoing terms of stay.” And, “the time and conditions DHS sets are not cabined to the terms of the entry definition”.

The Merriam-Webster dictionary defines the transitive verb “cabin” to mean “confine” or “restrain[]” and Macbeth proclaimed “But now I am cabined, cribbed, confined, bound in To saucy doubts and fears.” The D.C. Circuit has saucily ruled that DHS’s conditions need not adhere to the INA’s requirements.

The D.C. Circuit’s reading of the INA threatens to undermine aliens’ statutory obligations across all nonimmigrant programs. It is contrary to the unambiguous meaning of the INA, disputed by all other circuit courts that have addressed the issue, and is also seemingly at odds with this court’s precedent.

As Judge Rao concluded in her dissent:

[N]o [other] court of appeals has adopted th[is] approach. … [T]he Supreme Court and other circuits have consistently held nonimmigrant visa holders must satisfy the statutory criteria both at entry and during their presence in the [U.S.] … . Inconsistent with the text and the structure of the INA, the panel’s decision has also created a lopsided circuit split.

At issue is the relationship between the congressionally established requirements of the F visa program (and, for that matter, all other nonimmigrant programs) and DHS’s congressionally established authority to set time and conditions of admission for nonimmigrants.

The former provides for “an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter … temporarily and solely for the purpose of pursuing such a course of study.” The latter provides “The admission … of any alien as a nonimmigrant shall be for such time and under such conditions as [DHS] may … prescribe.”

The D.C. Circuit concluded that:

• The most straightforward reading of the INA is that it authorizes DHS to apply to admitted F-1 students the additional “time” and “conditions” that enable them to remain here while participating in OPT.

• [T]he best reading of the F-1 provision is that it imposes threshold entry criteria; it does not itself spell out the ongoing conditions under which F-1 students may lawfully stay but rather constrains the exercise of time-and-conditions authority.

The D.C. Circuit is incorrect. The unambiguous “most straightforward” reading is that 8 U.S.C. § 1184(a)(1)’s “terms and conditions” authority allows DHS to supplement § 1101’s requirements — not to disregard those continuing requirements.

Section 1184(a)(1) itself makes this reading quite clear, as it provides that DHS may require “the giving of a bond … to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any [other nonimmigrant] status subsequently acquired … such alien will depart”. (Emphasis added.)

The Supreme Court has recognized that § 1101’s requirements are ongoing in the context of the required intent not to abandon a foreign residence that is part of the F and most other nonimmigrant programs. In Elkins v. Moreno in 1978, the Court ruled:

• Congress expressly conditioned admission for some purposes on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the [U.S.]

• [S]ince a nonimmigrant alien who does not maintain the conditions attached to his status can be deported … it is … clear that Congress intended that … nonimmigrants in restricted classes who sought to establish domicile would be deported. [Emphasis added.]

The Supreme Court’s decision recognized that the requirements, or “conditions”, of entry, including nonimmigrant intent, are also requirements/conditions of good standing in the U.S.

Similarly, 8 U.S.C. § 1227(a)(1)(C)(i) provides that “Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed … or to comply with the conditions of any such status, is deportable.” (Emphasis added) If “conditions” arguably refer to those set by DHS pursuant to § 1184(a)(1) rather than the requirements of § 1101, “maintain” nonimmigrant status clearly refers to the requirements of § 1101(a)(15).

Other circuits have demonstrated the same understanding. For instance, in Wellington v. INS, the Eighth Circuit in 1983 ruled that “Even if [appellant] had complied with the conditions of her G-1 status [as an employee of an international organization official], she [is] still … deportable for failing to maintain [her status as the official’s nonimmigrant employee] by leaving the employ of the Nigerian Ambassador.” And in Brown v. INS, the Fifth Circuit in 1988 ruled that “an alien cannot lawfully possess an intent to be domiciled in this country while he or she is here on a student visa”.

Even the D.C. Circuit previously had this understanding (see its 1979 decision in Anwo v. INS). As Judge Rao noted, this “binding circuit precedent [holds that] the F-1 visa provision imposes ongoing conditions … . The panel majority, however, fails even to cite [it].”

In the present case, the D.C. Circuit sought support from the Third Circuit’s 1977 decision in Rogers v. Larson: “Like other visa classes defined in section 1101(a)(15), F-1 identifies entry conditions but ‘is silent as to any controls to which these aliens will be subject after they arrive in this country.’ [quoting Rogers] Those post-arrival controls are spelled out pursuant to section 1184(a)(1).”

But as Judge Rao pointed out, “The majority primarily relies on [this] … decision … [that] nowhere stated the nonimmigrant requirements apply only at entry.” The Third Circuit in Rogers was actually analyzing the “H-2” program for (at that time) aliens who were “coming temporarily to the [U.S.] to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” Immediately preceding its discussion of “silence”, the Rogers court noted that the program “contains only one restriction: they may come to this country only if unemployed persons capable of performing such services cannot be found here[]”, clearly a restriction focused on visa issuance. Such a focus is not the case with the F program’s requirements (except to the D.C. Circuit).

The D.C. Circuit’s reading also makes no sense in the context of the INA as a whole. The Supreme Court concluded in United States v. Heirs of Boisdore in 1850 that “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” The H-1B and F programs are both contained in the INA, which, as the Supreme Court explained in De Canas v. Bica in 1976, is “the comprehensive federal statutory scheme for regulation of immigration and naturalization”, whose “central concern … is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.”

Why does the D.C. Circuit’s decision make no sense in the context of the INA as a whole? First, 8 U.S.C. § 1258 permits aliens in one nonimmigrant status to switch to a new one (“change status”) without having to first leave the U.S. DHS “may, under such conditions [it] may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the [U.S.] as a nonimmigrant who is continuing to maintain that status”. In the context of changing status, it is nonsensical for the requirements of nonimmigrant programs to only apply at the visa-issuance stage. When an alien changes status, there is no visa-issuance stage. Additionally, aliens can only change status who have “continu[ed] to maintain [their prior] status”, again making it nonsensical to limit § 1101 requirements to visa-issuance.

As the Supreme Court concluded in Sanchez v. Mayorkas in 2021, “nothing in § 1184 (or any other section) states that admission is a prerequisite of nonimmigrant status — or otherwise said, that the former is a necessary incident of the latter”, pointing out that “individuals in two immigration categories have … nonimmigrant status without admission” and that “There could scarcely be a plainer statement of the daylight between nonimmigrant status and admission.”

Second, it makes no sense for § 1101 requirements to only apply at visa-issuance given that, as discussed, aliens can be deported for failing to continue to fulfill them while in the U.S.

As the D.C. Circuit noted:

Congress readied itself to enact the INA in 1952 by directing the Senate Judiciary Committee to conduct “a full and complete investigation of our entire immigration system,”… [that] was the “genesis” of the [INA], overhauling the 1924 statutory regime and providing the foundation for U.S. immigration law that persists today.

In 1950, the Senate Judiciary Committee explained in its report that “It was not until the Immigration Act of 1917 that an elaborate list of the causes for deportation … [was] included in the law.” The Immigration Act of 1924 provided that “Any alien who at any time after entering the [U.S.] is found to have been at the time of entry not entitled under this Act to enter the [U.S.], or to have remained therein for a longer time than permitted … shall be taken into custody and deported.” The Judiciary Committee report recommended that “The deportable classes of aliens … be[] revised to subject any alien to deportation who … has failed to maintain his nonimmigrant status.” Congress made clear in 1952 that nonimmigrants must maintain their nonimmigrant status (as set forth in § 1101) or face deportation.

As Judge Rao concluded, “The interpretation most consistent with the text and structure of the INA is that the criteria that apply at admission continue to govern a nonimmigrant’s stay in the country after entry.”

Finally, as Judge Rao argued:

DHS’s regulatory authority to set time and conditions applies only to “admission.”… explicitly defined as “the lawful entry of the alien into the [U.S.].”

If the nonimmigrant categories define only the terms of “entry,” as the majority holds, then DHS’s regulatory authority over “admission” is similarly limited to the terms of entry.

The D.C. Circuit “concedes” that:

• Congress intended the Secretary’s time and-conditions authority to be exercised in a manner appropriate to the types of people and purposes described in each individual visa class. … To be valid, the challenged post-graduation OPT Rule … must reasonably relate to the distinct composition and purpose of the F-1 nonimmigrant visa class.

• The F-1 provision … sets the criteria for entry and guides DHS in exercising its authority to set the time and conditions of F-1 students’ stay.

This “concession” hardly squares the D.C. Circuit’s interpretation with the INA. The court ruled that DHS can establish terms and conditions that “reasonably relate to the distinct composition and purpose” of a nonimmigrant program without actually having to abide by that program’s § 1101 requirements. This is not what the INA says and it empowers DHS to embark on regulatory flights of fancy, so long as DHS can argue that the terms and conditions somehow “reasonably relate” to the program at issue.

But what indeed is the “distinct composition and purpose” of the F program apart from its § 1101 requirements regarding “a residence in a foreign country which [the alien] has no intention of abandoning”, “a bona fide student qualified to pursue a full course of study”, and “solely for the purpose of pursuing such a course of study”? And how can DHS’s terms and conditions possibly “reasonably relate” if they do not respect, but rather supplant, these requirements? They cannot.

Conclusion

Supreme Court, please grant cert to Save Jobs USA! As Save Jobs explained in its Petition for a Writ of Certiorari: “Had Washtech been a one-off aberration from precedent there might be less of a need for supervisory review of the entry requirement holding. The [D.C. Circuit’s] decision [in Save Jobs USA], however, demonstrates that Washtech now prevails” generally regarding temporary visas.

End Notes

¹ Memorandum of Law in Support of Plaintiff’s Second Renewed Motion for Summary Judgment at 1, Save Jobs USA v. DHS, 664 F. Supp.3d 143 (D.D.C. 2023) (Civil Action No. 1:15-cv-00615 (TSC)) (filed April 2, 2021).

² Id.