Save Jobs USA v. U.S. Dep't of Homeland Sec.

664 F.Supp.3d 143

SAVE JOBS USA, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

Case No. 15-cv-0615 (TSC)

United States District Court, District of Columbia

Signed March 28, 2023

John Michael Miano, Immigration Reform Law Institute, Washington, DC, for Plaintiff.

Glenn M. Girdharry, Joshua Samuel Press, U.S. Department of Justice, Washington, DC, for Defendant.

Andrew A. Lyons-Berg, Paul Whitfield Hughes, III, McDermott Will & Emery LLP, Washington, DC, for Amicus Leading Companies and Business Associations.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

In this Administrative Procedure Act ("APA") action, Plaintiff Save Jobs USA, an association representing Southern California Edison workers, challenges a Department of Homeland Security ("DHS") rule allowing H-4 visa-holders to apply for employment authorization. Plaintiff claims that the rule lacks statutory authorization, violates the nondelegation doctrine, and is arbitrary and capricious. Both parties have moved for summary judgment. Intervenors Immigration Voice and Anujkumar Dhamija, as well as amici curiae comprising more than forty companies and organizations have filed briefs in support of Defendant's motion. Having considered all those filings, and for the reasons stated herein, Plaintiff's motion for summary judgment will be DENIED, and Defendant's motion for summary judgment will be GRANTED.

I. BACKGROUND

The court has set forth the relevant background for this case in prior opinions, so only a brief description is necessary here. See Save Jobs USA v. U.S. Dep't of Homeland Sec., 210 F. Supp. 3d 1 (D.D.C. 2016); Save Jobs USA v. U.S. Dep't of Homeland Sec., 105 F. Supp. 3d 108 (D.D.C. 2015).

A. Statutory and Regulatory Framework

The Immigration and Nationality Act ("INA") authorizes DHS to admit foreign workers into the U.S. to perform certain types of labor. See 8 U.S.C. § 1101(a)(15)(H). The "H-1B" category of visa-holders are admitted "to perform services . . . in a specialty occupation" for an initial period of three years, extendable for three additional years. Id. § 1101(a)(15)(H)(i)(b). Spouses and minor dependents of H-1B visa-holders are granted H-4 visas allowing them to reside in the United States as well. See id.

Generally, H-1B visa-holders and their H-4 spouses and dependents may reside in the U.S. for up to six years, after which time they must leave and remain abroad for at least one year before seeking to reenter in the same status. See 8 U.S.C. § 1184(g)(4); 8 C.F.R. § 214.2(h)(13)(iii)(A). However, H-1B visa-holders may transition to legal permanent resident ("LPR") status—i.e., become a green card holder—through the employer-sponsored immigration process. This process requires the H-1B visa-holder's employer to obtain a Department of Labor certification that there are no U.S. workers who are "able, willing, qualified[,] . . . and available" to perform the job, and that the "wages and working conditions" of "similarly employed" American workers will not be "adversely affected." 8 U.S.C. § 1182(a)(5)(A)(i). If the Secretary of Labor approves the certification, the employer then submits a Form I-140 petition for DHS's approval. See id. § 1154(a)(1)(F), (b); 8 C.F.R. § 204.5(a). Due to frequently oversubscribed quotas for the number of H-1B visa-holders who may transition to LPR status, there are often long delays, and an applicant may have to leave the U.S. before receiving a decision on their status adjustment application.

To prevent the potential for disruption to employers and families, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21 Act"). Under that Act, if an applicant has an approved Form I-140 petition and is unable to adjust their status because of per-country visa limits, they may extend their H-1B stay in three-year increments until their application for LPR status has been adjudicated. See Pub. L. No. 106-313, § 104(c), 114 Stat. 1251, 1253; 8 C.F.R. § 214.2(h)(13)(iii)(E). H-1B visa-holders who are the subject of labor certification applications or Form I-140 petitions may also be eligible for recurring one-year extensions of H-1B status if 365 days have elapsed since the application or petition was filed. See AC21 Act § 106(a)-(b), 114 Stat. at 1253-54, as amended by 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 11030A, 116 Stat. 1762, 1836-37 (2002); 8 C.F.R. § 214.2(h)(13)(iii)(D).

The rule at issue in this case permits a subset of H-4 visa-holders to apply for Employment Authorization Documents ("EADs") allowing them to work in the United States. To be eligible, the H-4 visa-holder's H-1B spouse must either be transitioning to LPR status by way of either an extension past their sixth year under the AC21 Act or be the subject of an approved Form I-140 petition but cannot adjust status because of visa oversubscription. See Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284, 10,285 (Feb. 25, 2015) (codified at 8 C.F.R. §§ 214.2, 274a) ("H-4 Rule"). The H-4 Rule aims to "ameliorate certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking LPR status, thereby minimizing disruptions to U.S. businesses employing such workers." Id. The Rule underwent notice-and-comment procedures, see Employment Authorization for Certain H-4 Dependent Spouses, 79 Fed. Reg. 26,886 (May 12, 2014) (proposed rule), and took effect on May 26, 2015, see 80 Fed. Reg. 10,284 (Feb. 25, 2015).

B. Procedural History

On April 23, 2015, Plaintiff filed this suit and moved for a preliminary injunction to prevent Defendant from implementing the H-4 Rule. See Pl. Mot. Prelim. Inj. ECF No. 2. The court denied Plaintiff's motion on May 24, 2015. See May 24, 2015 Order, ECF No. 14; 105 F. Supp. 3d at 116. Later that year, the parties cross-moved for summary judgment. See Pl. Second Summ. J. Mot., ECF No. 26;¹ Def. First Summ. J. Cross-Mot., ECF No. 27. The court denied Plaintiff's motion and granted Defendant's motion, ruling that Plaintiff lacked standing. See 210 F. Supp. 3d at 13. Plaintiff appealed and the D.C. Circuit reversed and remanded for further proceedings. Save Jobs USA v. Dep't of Homeland Sec., 942 F.3d 504 (D.C. Cir. 2019). Plaintiff and Defendant have once again cross-moved for summary judgment. ECF Nos. 67, 69.

II. LEGAL STANDARD

The APA commands that a court set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or that is "contrary to [a] constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2)(A)-(B).

Summary judgment is typically appropriate when the pleadings and evidence demonstrate that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). But Rule 56(a)'s standards do not apply in an APA action where "the district judge sits as an appellate tribunal," and the "[e]ntire case on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks omitted). Instead of reviewing the record for disputed facts, "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (quotation marks and citation omitted). This standard of review is "narrow," and a court applying it "is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

III. ANALYSIS

A. Statutory Authorization

Plaintiff's primary contention is that Congress has never granted DHS authority to allow foreign nationals, like H-4 visa-holders, to work during their stay in the United States. But as the D.C. Circuit has recently explained, that contention runs headlong into the text of the INA, decades of Executive-branch practice, and both explicit and implicit congressional ratification of that practice.

The Circuit's analysis in Washington Alliance of Technology Workers v. United States Department of Homeland Security is directly applicable to this case. 50 F.4th 164 (D.C. Cir. 2022) ("Washtech"). There, a labor union representing STEM workers claimed DHS lacked statutory authority to authorize employment as part of a post-graduation, "Optional Practical Training" program for F-1 student visa-holders. Id. at 190. The D.C. Circuit squarely rejected that argument for at least three reasons, all of which foreclose Plaintiff's parallel assertion here.

The first reason was "the INA's explicit grant of authority to the Department," which not only "commands DHS to 'establish such regulations' as its Secretary 'deems necessary for carrying out his authority,' " but also "specifically provides that the 'admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe.' " Id. (first quoting 8 U.S.C. § 1103(a)(3), then quoting id. § 1184(a)(1)). The Attorney General's authority to set the "time" and "conditions" of visa-holders' stay has been transferred to DHS. Id. at 170 n.1. In the case of F-1 students, the D.C. Circuit held, "[w]hether they can work" is such a condition, just like rules governing "where they can study," the "courses they must take," and "what any accompanying spouse or children may do while in the country." Id. at 190 (citations omitted). The INA's text therefore expressly contemplates DHS authorizing employment for foreign nationals. Id.

Second, "[h]istory corroborates that Congress meant what it plainly said in the INA when it granted DHS authority in section 1184(a)(1) to set the conditions of F-1 students' admission." Id. "DHS and its predecessors have been authorizing student visa-holders to...