Professional Documents
Culture Documents
No. 16-5287
v.
(A) Parties and Amici. Except for the following, all parties, intervenors,
and amici appearing in this court are listed in the Brief for Appellant:
(B) Rulings under Review. References to the ruling at issue appear in the
skilled immigrants in the United States. Immigration Voice does not have a parent
corporation, and there is no publicly-held corporation that owns 10% or more of its
stock.
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TABLE OF CONTENTS
Page
ARGUMENT .............................................................................................................8
B. The History of the INA Confirms That the Secretary Has Authority
to Issue Work Authorizations ..............................................................18
CONCLUSION ........................................................................................................38
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TABLE OF AUTHORITIES
Page(s)
Cases
Acree v. Republic of Iraq,
370 F.3d 41 (D.C. Cir. 2004) .................................................................................8
Alexander v. Sandoval,
532 U.S. 275 (2001) .............................................................................................12
Barnhart v. Walton,
535 U.S. 212 (2002) .............................................................................................18
Bell v. Hood,
327 U.S. 678 (1946) .............................................................................................13
Bennett v. Spear,
520 U.S. 154 (1997) .............................................................................................15
iv
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De Canas v. Bica,
424 U.S. 351 (1976) .............................................................................................19
Diaz v. INS,
648 F. Supp. 638 (E.D. Cal. 1986) ......................................................................22
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .............................................................................................16
In re Sealed Case,
552 F.3d 841 (D.C. Cir. 2009) .............................................................................11
Mathews v. Diaz,
426 U.S. 67 (1976) ...............................................................................................16
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Narenji v. Civiletti,
617 F.2d 745 (D.C. Cir. 1979) .............................................................................28
Perales v. Casillas,
903 F.2d 1043 (5th Cir. 1990) .............................................................................15
Petties v. D.C.,
227 F.3d 469 (D.C. Cir. 2000) .............................................................................12
Piwowarski v. Green,
No. 05-7174, 2006 WL 3798908 (D.C. Cir. Oct. 4, 2006) ........................... 10, 11
Sargeant v. Dixon,
130 F.3d 1067 (D.C. Cir. 1997) ...........................................................................12
Saxbe v. Bustos,
419 U.S. 65 (1974) ...............................................................................................36
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Sherley v. Sebelius,
689 F.3d 781 (D.C. Cir. 2010) .............................................................................12
Texas Dept. of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc.,
135 S. Ct. 2507 (2015) .........................................................................................23
Warth v. Seldin,
422 U.S. 490 (1975) .............................................................................................12
Statutes
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Rules
D.C. Circuit Rule 28(a)(1) .......................................................................................39
Fed. R. App. P. 32(a)(5) ...........................................................................................40
Fed. R. App. P. 32(a)(6) ...........................................................................................40
Fed. R. App. P. 32(g)(1)...........................................................................................40
Regulations
8 C.F.R. § 214.2(c) ...................................................................................................18
8 C.F.R. § 214.2(h)(1)(ii)(B) .....................................................................................4
8 C.F.R. § 214.2(h)(9)(iii) ..........................................................................................4
8 C.F.R. § 214.2(h)(9)(iv) ..........................................................................................4
8 C.F.R. § 274a.12 .....................................................................................................3
8 C.F.R. § 274a.12(c)(9) ............................................................................................5
12 Fed. Reg. 5357 (Aug. 7, 1947)............................................................................19
17 Fed. Reg. 11,489 (Dec. 19, 1952) .......................................................................18
44 Fed. Reg. 43,480 .................................................................................................20
45 Fed. Reg. 19,563 .................................................................................................20
46 Fed. Reg. 25,079 (May 5, 1981) .........................................................................20
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Other Authorities
Charles Alan Wright et al., 21B Fed. Prac. & Proc. Evid. § 5110.1
(2d ed. 2018) ........................................................................................................11
Immigration Reform and Control Act of 1983, Hearings before the Subcomm.
On Immigration, Refugees and Int’l Law of the H. Comm. on the Judiciary,
98th Cong. 1450 (1983) .......................................................................................22
INS Oversight and Budget Authorization for Fiscal Year 1985: Hearings Before
the Subcomm. On Immigration, Refugees, and Int’l Law of the H. Comm. on
the Judiciary, 98th Cong. 357 (1984) ..................................................................22
Recent Developments,
64 No. 41 Interpreter Releases 1190 (Oct. 26, 1987) ..........................................24
Recent Developments,
67 No. 6 Interpreter Releases 153 (Feb. 5, 1990) ................................................24
S. Rep. No. 106-260 (Apr. 11, 2000) .........................................................................4
Sam Bernsen, INS Assistant Comm’r, Lawful Work for Nonimmigrants,
48 No. 21 Interpreter Releases 168 (June 21, 1971)............................................19
Sam Bernsen, INS Gen. Counsel, Leave to Labor,
52 No. 35 Interpreter Releases 291 (Sept. 2, 1975) .............................................19
USCIS, Press Release,
USCIS Announces Interim Relief for Foreign Students Adversely Impacted
by Hurricane Katrina (Nov. 25, 2005) ................................................................25
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GLOSSARY OF ABBREVIATIONS
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1. Did the district court correctly find that Save Jobs lacks standing and properly
2. Did this Court err in holding Intervenors had standing in granting their motion
to intervene, when Intervenors stand to lose their ability to work in the United
3. Does the Department of Homeland Security have the authority to issue work
with the plain language of the relevant statutory provisions, and as repeatedly
recognized by Congress?
Save Jobs USA (“Save Jobs”), an organization whose members said they were
rule promulgated by the Department of Homeland Security (“DHS”) even before the
Rule took effect in 2015. See Employment Authorization for Certain H-4 Dependent
Spouses, 80 Fed. Reg. 10284 (Feb. 25, 2015). The rule concerns spouses of H-1B
nonimmigrant guest workers who are seeking to obtain Legal Permanent Resident
(“LPR” or “Green Card”) status—a process that often entails backlogs and long
delays. The spouses of H-1B visa holders are entitled to H-4 visas enabling them to
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live, but not work, in the United States. The rule at issue (the “H-4 Rule”) allows the
(“EADs”) during the interim period between when the H-1B worker applies for LPR
status and when the H-1B visa holder actually receives LPR status (at which point,
The district court correctly granted summary judgment to DHS, finding Save
Jobs lacked standing because its members averred only that they were applying to
unspecified jobs in various technical fields. They failed to produce evidence that
they were competing with any noncitizen worker benefited by the H-4 Rule or with
any H-1B worker induced to stay in the U.S. by the H-4 Rule, and so failed to show
that they faced an “actual and imminent” threat of competition as a result of the rule.
If this Court disagrees and finds standing, it should remand to the district court
to fully address the merits of Save Jobs’ claim in the first instance. Should this Court
reach the merits, Save Jobs’ contention that DHS lacked statutory authority for the
interpretation. The Immigration and Nationality Act (“INA”) grants the Secretary of
and to “perform such other acts as he deems necessary for carrying out his authority”
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Consistent with this broad statutory command, DHS (and its predecessor
agencies) have understood for over 50 years that the Executive Branch has the
standing and consistent interpretation. Indeed, Congress has blessed it, expressly
1324a(h)(3). Because the text and history of the INA support the H-4 work
authorization program, the Court—if it reaches the issue—should uphold the rule.
(the “Secretary”) “with the administration and enforcement of th[e INA] and all
1103(a)(1). 1 To carry out this authority, the INA grants the Secretary power to
“establish such regulations,” to “issue such instructions,” and to “perform such other
acts as he deems necessary for carrying out his authority” to “administ[er] and
The Executive Branch has long construed this authority to include providing
for work authorizations, see, e.g., 8 C.F.R. § 274a.12; 46 Fed. Reg. 25,080–25,081
1
Congress has transferred to the Department of Homeland Security most of the
functions of the former Immigration and Naturalization Service (“INS”). See 6
U.S.C. 202(3), 271(b), 557.
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DHS promulgated the H-4 Rule. See 80 Fed. Reg. at 102885. The H-4 visa allows
certain dependents of H-1B visa holders to lawfully enter and reside in the United
States. See 8 C.F.R. § 214.2(h)(9)(iv). The H-4 Rule “extend[s] eligibility for
85.
C.F.R. § 214.2(h)(1)(ii)(B)), DHS admits the worker in H-1B status for up to three
worker’s H-1B status for up to three more years. Id. DHS admits the worker’s
dependent spouse (and minor children) in H-4 status subject to the same period of
categories, i.e., 8 U.S.C. § 1153(b)(2), (3), many highly-skilled H-1B workers were
forced to leave the country after six-years of productive employment while their
employment-based immigrant visa petitions for green cards were still pending. See
S. Rep. No. 106-260 at 22 (Apr. 11, 2000). In response, Congress enacted the
American Competitiveness in the Twenty-F irst Century Act of 2000 (“AC 21”),
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which permits H-1B visa holders to extend their stay in the U.S. in certain
circumstances. See AC 21, Pub. L. No. 106-313, §§ 104(a), 106(a)-(b), 114 Stat.
1251 (2000).
DHS’s final H-4 Rule applies only to H-4 dependent spouses of H-1B workers
that are either: (1) the principal beneficiary of approved I-140 immigration petition
for an alien worker, or (2) have been granted H-1B extensions beyond six-years
under AC 21 § 106(a) & (b). Id. at 10290-91. The final rule thus provides temporary
employment authorization for this limited group of H-4 dependent spouses as they
wait for their spouse to get a green card, simply accelerating when these intending
based on a pending I-485 adjustment of status application. See id. at 10285; 8 C.F.R.
§ 274a.12(c)(9).
Save Jobs filed its complaint in this action on April 23, 2015. The parties filed
cross motions for summary judgment. In support of its motion, Save Jobs attached
an appendix with its evidence of standing, including among other things a number
of internet job postings and blog posts, and the affidavits of three of its members.
The district court ruled in favor of DHS. Save Jobs USA v. U.S. Dep’t of Homeland
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of motions to hold the case in abeyance in order to, as it said in its first such motion,
“allow incoming leadership personnel adequate time to consider the issues.” See
Case No. 16-5287, Doc. No. 1658889 at ¶ 4 (Feb. 2, 2017). After the initial abeyance
members—sought to intervene in order to defend the rule. Id. Doc. 1664623 (Mar.
new rule, through notice and comment rule making, replacing the existing rule, and
that the new rule might moot this appeal. See DHS motions filed on April 4, 2017;
September 27, 2017; and December 22, 2017. After granting DHS’s multiple
requests to extend the abatement, and after DHS repeatedly failed to meet its own
deadlines for proposing a new rule, on December 17, 2018, this Court removed the
case from abeyance, set a briefing schedule, and granted Intervenors’ motion (over
both Save Jobs and DHS’s opposition). Id. Doc. 1764518 (December 17, 2018).
SUMMARY OF ARGUMENT
that Save Jobs lacks standing and correctly excluded Save Job’s extra-record
evidence.
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II. Save Jobs contends that the Intervenors lack standing. But this Court
necessarily decided that Intervenors do have standing when it granted the motion to
intervene, and that holding is law of the case. Regardless, it is apparent that
Intervenors have standing because they stand to suffer a concrete injury—the loss of
their ability to work in the United States—if the Rule at issue is invalidated.
IV. Should the Court reach the merits of the Plaintiff’s challenge, the Court
should determine, based on the plain language of the statutes at issue and the
unbroken practice over more than the last 50 years, that the Secretary has authority
to issue the H-4 Rule. Section 1103 of the Immigration and Nationality Act gives
such other acts as he deems necessary for carrying out his authority” to “administ[er]
and enforce[]” immigration laws. This grant of authority has long been interpreted
to give the Executive Branch the authority to issue work authorization. Indeed, the
Executive has allowed certain classes of aliens to lawfully work in this country for
Jobs’ contrary arguments depend on ignoring key statutory language, the unbroken
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even though Congress has repeatedly acted to amend other parts of the immigration
statutes. Save Jobs also turns a blind eye to the fact that work authorization is an area
nation’s complex immigration system, has granted DHS discretion to confer work
authorization when Congress has not acted while retaining to itself the authority to
grant work authorization or exercise its authority to exclude DHS from granting
STANDARD OF REVIEW
This Court reviews standing de novo, Wash. All. of Tech. Workers v. United
States Dep’t of Homeland Sec. (“Washtech”), 892 F.3d 332, 339 (D.C. Cir. 2018),
Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).
The Court reviews questions of law de novo. Acree v. Republic of Iraq, 370
F.3d 41, 49 (D.C. Cir. 2004), abrogated on other grounds by Republic of Iraq v.
ARGUMENT
found, Save Jobs does not have standing in this case because it has failed to present
any evidence that its members faced increased competition on account of the H-4
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Rule. Likewise, the Government is correct that Save Jobs’ extra-record evidence
First, in Washtech, the allegations were quite different. There, the plaintiffs
alleged that “three of Washtech’s members have applied to companies for STEM
jobs and that F–1 student visa holders who work at the same companies have applied
for OPT [‘optional practical training’] extensions.” 892 F.3d at 338-40. Thus, the
plaintiffs and students were direct competitors for jobs at specific companies—
Microsoft and Computer Sciences Corporation. Id. Although the Court stated the
rule “increased the labor supply in the STEM job market,” id., the Court did not hold
that all workers in any “STEM” field would have standing to challenge the rule. 2
Second, Save Jobs USA cites portions of the administrative record suggesting
that the H-4 Rule will alleviate disincentives against continuing to pursue LPR
status, and asserts that “[b]ut for the H-4 Rule, large numbers of aliens in H-1B status
would leave the country and the job market.” Br. at 19 (citing 80 Fed Reg. at
10,285[3]). The record cannot bear that weight. In fact, the record does not establish
that any H-1B visa holders will be induced by the Rule not to abandon their efforts
2
The declaration of Intervenor Anujkumar Dhamija, stating he is working under the
H-4 Rule as an information technology project manager, cannot establish standing
because Mr. Dhamija did not receive work authorization under the H-4 Rule until
November 2015 (Decl. ¶ 6), six months after the complaint was filed.
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to become a Legal Permanent Resident. Rather, DHS derived its estimates of the
number of potentially eligible H-4 spouses from the “historical data on persons
obtaining LPR status,” 80 Fed. Reg. at 10305. DHS did not indicate how many (if
any) H-1B visa holders who were in the process of transitioning to LPR status had
abandoned their applications in prior years or how many, if any, it anticipated would
be induced by the Rule not to abandon their applications in future years. Whether
the Rule would have such an effect on any H-1B visa holder is purely speculative.
Even without the Rule, H-1B visa holders in the process of transitioning to legal
status had ample incentive to stay in the U.S. where they were gainfully employed
and where many had already been waiting for years for their legal residency.
Third, Save Jobs argues for the first time in its brief that a website called the
substantially similar form prior to the date the complaint was filed. The Court should
disregard this new “evidence,” which Save Jobs urges this Court to consider by
citing to certain web pages (Br. at 25 & nn. 8-9) even though Save Jobs failed to
present this “evidence” to the district court. See Piwowarski v. Green, No. 05-7174,
2006 WL 3798908, at *1 (D.C. Cir. Oct. 4, 2006) (“[A]n appellate court ordinarily
has no fact-finding function and will generally not consider new evidence on
appeal”). Further, Save Jobs did not request that this Court take judicial notice of
these web sites, and in any event, this alleged evidence is hearsay and even assuming
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judicial notice would be proper, “Courts agree … that the appellate court should not
take judicial notice to cure an insufficiency of evidence in the record.” Charles Alan
Wright et al., 21B Fed. Prac. & Proc. Evid. § 5110.1 & n.20 (2d ed. 2018) (collecting
authority).
Fourth, if this Court holds that the district court abused its discretion in
striking the evidence, this Court should remand the issue to the district court to
evaluate the evidence and determine its impact on Save Jobs’ standing claim. See In
re Sealed Case, 552 F.3d 841, 845 (D.C. Cir. 2009); Piwowarski, 2006 WL 3798908,
Save Jobs opposed the motion to intervene but failed to raise this argument in its
opposition, Doc. 1664623 (March 6, 2017), even though Intervenors argued at length
(at pp. 8-11) that they had standing. This Court granted the Motion to Intervene,
citing the case, Fund For Animals, Inc. v. Norton, 322 F.3d 728, 731-33 (D.C. Cir.
2003), and pages therein that the Intervenors primarily relied on to establish
standing. Doc. 1764518 (Dec. 17, 2018). Because “a party seeking to intervene as
of right must demonstrate that it has standing under Article III of the Constitution,”
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Fund for Animals, 332 F.3d at 732-33, this Court necessarily decided that
Although standing generally may be raised at any time, this precise issue was
decided by the motions panel and is law of the case. See Petties v. D.C., 227 F.3d
469, 472 (D.C. Cir. 2000). Under the law-of-the-case doctrine, courts are “loathe to
such as where the initial decision was clearly erroneous and would work a manifest
injustice.” Sherley, 689 F.3d at 781 (quotation omitted). Save Jobs cannot meet that
Save Jobs challenges Intervenors’ standing only on the tortuous ground that
because Intervenors’ work authorization was conferred by agency action rather than
on which to base their standing. Save Jobs’ argument is misplaced because it relies
on case law concerning whether a party has standing to bring an unrecognized right
of action. E.g., Warth v. Seldin, 422 U.S. 490, 512 (1975); Alexander v. Sandoval,
532 U.S. 275, 291 (2001); Sargeant v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997).
Save Jobs cites no case supporting its argument that simply because a
regulation, rather than a statute, confers a benefit on a person, that person lacks
standing to defend against the deprivation of that benefit. Save Jobs’ argument
proves too much and would mean, for example, that Intervenors would not have
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standing to challenge a new rule rescinding the H-4 EAD Rule. Contrary to Save
Jobs’ contention, the question of whether the challenged H-4 regulation is consistent
this case and has nothing to do with standing. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the
absence of a valid (as opposed to arguable) cause of action does not implicate
subject-matter jurisdiction….); Bell v. Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction
... is not defeated ... by the possibility that the averments might fail to state a cause
proper course is to remand to the district court to consider the statutory question in
authority to issue the H-4 Rule based on the text, structure, and history of the INA.
authority to carry out the immigration law. Congress has tasked the Secretary of
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and priorities,” and it has “charged” the Secretary with “the administration and
enforcement of” the INA, “and all other laws relating to the immigration and
instructions,” and to “perform such other acts as he deems necessary for carrying out
1324a(h)(3). In enacting these provisions, “Congress has given the Executive Branch
broad discretion to determine when noncitizens may work in the United States.”
Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014); accord
Washington All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 156 F. Supp. 3d
123, 144 (D.D.C. 2015) (“DHS has been broadly delegated the authority to regulate
dismissed on other grounds, 650 F. App’x 13 (D.C. Cir. 2016); see also United
States v. Chen, 2 F.3d 330, 333 (9th Cir. 1993) (“Congress has provided extremely
broad powers to the Attorney General for the enforcement of the immigration
laws.”).
recognizes that both Congress and the Secretary have the authority to issue work
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authorization. See Perales v. Casillas, 903 F.2d 1043, 1049 (5th Cir. 1990) (noting
CFR). Section 1324a reads: “the term ‘unauthorized alien’ means, with respect to
the employment of an alien at a particular time, that the alien is not at that time ...
flowed directly from a pronouncement in the INA, there would have been no need
for Congress to add “or by the Attorney General.” See Bennett v. Spear, 520 U.S.
154, 173 (1997) (courts should give effect to ‘“every clause and word of a statute’”
(quoting United States v. Menasche, 348 U.S. 528, 538 (1955))). That is not what
Congress did. Instead, the language of Section 1324a confirms that the broad grant
It is not just Section 1324a that confirms the commonsense reading of Section
1103—the statute as a whole makes sense only if Section 1103 is read to confer the
specific classes of aliens, but these limits are nonsensical if the Secretary has no
U.S.C. 1226(a)(3) provides that the Secretary “may not provide [an] alien [who has
been arrested, detained, and released on bond pending a removal determination] with
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work authorization … unless the alien is lawfully admitted for permanent residence
States unless the Attorney General makes a specific finding that … the alien cannot
the public interest.” The very fact that Congress recognized the need to limit the
Secretary’s work authorizations in such cases indicates that, absent a limitation, the
Secretary has broad authority to issue work authorization as he or she deems fit.
the alien work eligibility, then the limited prohibitions would be surplusage.
Congress had good reason to grant the Secretary dual authority to issue work
authorization in cases when Congress has not acted. Congress has long-recognized
immigration decisions “implicate our relations with foreign powers” and depend on
Diaz, 426 U.S. 67, 81 (1976); see also Harisiades v. Shaughnessy, 342 U.S. 580,
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must have the “flexibility ... to respond to changing world conditions.” Diaz, 426
U.S. at 81. This “dynamic nature” of immigration policy “requires the Executive
Branch to ensure that enforcement policies are consistent with this Nation’s foreign
decision making. Arizona v. United States, 567 U.S. 387, 396–97 (2012). Dual
authority furthers these ends: allowing Congress to authorize (or preclude) work
authorizations when exercising its considered judgment and allowing the Secretary
the flexibility to respond to immediate policy needs in cases when Congress has not
acted.
that the agency may ‘make … such rules and regulations as may be necessary to
carry out the provisions of this Act, … the validity of a regulation promulgated
enabling legislation.” Mourning v. Family Publ’ns Serv., 411 U.S. 356, 369 (1973).
That test is easily met here. The INA “framework reflects a considered judgment
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States, 567 U.S. at 405. This is especially true in the case of immigrants who will
The history of the INA makes clear that the Secretary has the authority to issue
work authorizations. This history matters for two independent, but related reasons.
First, the history is important in its own right because courts “will normally accord
‘longstanding’ duration.” Barnhart v. Walton, 535 U.S. 212, 220 (2002) (citation
omitted). Second, the history matters because, despite making numerous, other
significant changes to the INA, Congress has never repudiated DHS’s authority to
evidence that the interpretation is the one intended by Congress.” Creekstone Farms
Premium Beef, L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500 (D.C. Cir. 2008).
administrations, the Attorney General and later the Secretary of DHS have
interpreted their authority under Section 1103 to include the authority to issue work
authorizations. See, e.g., 17 Fed. Reg. 11,489 (Dec. 19, 1952) (8 C.F.R. 214.2(c))
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director or the officer in charge having administrative jurisdiction over the alien’s
place of temporary residence”). Indeed, even before the 1952 enactment of the INA,
the Attorney General understood his or her authority to include the ability to issue
This authority has been consistently invoked, and by the 1970’s, INS’s
ordinary practice was to authorize aliens to work when it decided not to pursue
immediate deportation. Sam Bernsen, INS Gen. Counsel, Leave to Labor, 52 No. 35
Interpreter Releases 291, 294 (Sept. 2, 1975); see Sam Bernsen, INS Assistant
Comm’r, Lawful Work for Nonimmigrants, 48 No. 21 Interpreter Releases 168, 315
(June 21, 1971). True enough, at the time there was no prohibition on hiring
unauthorized immigrants. See generally De Canas v. Bica, 424 U.S. 351, 360-361
(1976). But “[s]ome employers [would] not hire an alien” without “some evidence
INS granted authority to work in those cases, reasoning that “gainful employment
should not be prevented and that it is reasonable to give the alien something that he
can present to a prospective employer to show that he can work.” Id.; see also De
Contractor Registration Act. See Pub. Law 93-518, December 7, 1974, 88 Stat 1652.
That enactment barred farm labor contractors from knowingly employing any “alien
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not lawfully admitted for permanent residence or who has not been authorized by
Counterman v. U.S. Dept. of Labor, 607 F. Supp. 286, 288 (W.D. Tex. 1985). The
necessary premise of the law was that the “Attorney General” already had the
In 1979, INS sought “for the first time” to “codify [its] existing employment
several categories of aliens who could receive work authorization. Id. As authority
for this proposed rule, the INS cited Section 1103. Id.
“significantly modified” rule was proposed. 45 Fed. Reg. 19,563. The new version
of the rule still set out “classes of aliens who may apply for discretionary work
authorization.” Id. Again, the modified rule cited Section 1103 as its source of
authority. Id. This modified proposal was met with “concern” that it “did not
adequately cover all categories [of] nonimmigrants who are permitted to work while
In 1981, the INS published its final rule. See id. at 25,079-083. The final rule
recognized that the INS had significant discretion to issue work authorization. Id. at
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need”). Again, the final rule recognized that the general authority under Section
Five years later, in 1986, the final rule was challenged by the Federation for
American Immigration Reform (“FAIR”). 51 Fed. Reg. 39,385 (Oct. 28, 1986).
FAIR, like Save Jobs here, claimed that the INS had “acted beyond its statutory
authority and contrary to the purpose of the Immigration and Nationality Act.” Id. at
Before the INS could act on FAIR’s petition, Congress settled the dispute by
ratifying the INS’s longstanding view that it had authority to issue work
authorizations in the Immigration Reform and Control Act of 1986 (“IRCA”), Pub.
scheme prohibiting the employment of illegal aliens in the United States.” Hoffman
Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). To do this, IRCA
extended to all employers the sanctions regime that previously applied only to farm-
labor contractors. See id. 101, 100 Stat. 3372. The critical provision of IRCA makes
it unlawful for an employer to hire “an unauthorized alien (as defined in subsection
Subsection (h)(3) in turn defines “unauthorized alien” as an alien who is not a lawful
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to limit in IRCA.
authority when IRCA was passed because, in addition to the trio of publicly-noticed
regulations in the 1980s and the FAIR petition, the INS’s claim of authority was
specifically highlighted to Congress while IRCA was being debated. See Letter from
Immigration Reform and Control Act of 1983, Hearings before the Subcomm. On
Immigration, Refugees and Int’l Law of the H. Comm. on the Judiciary, 98th Cong.
1450 (1983) (“INS currently has authority to define classes of aliens who may be
employed in the U.S.”); Letter from Alan Nelson, Comm’r, INS, to Romano Mazzoli
(May 14, 1984), included in INS Oversight and Budget Authorization for Fiscal Year
1985: Hearings Before the Subcomm. On Immigration, Refugees, and Int’l Law of
the H. Comm. on the Judiciary, 98th Cong. 357 (1984) (explaining that INS
regulations “set forth eligibility and criteria for employment authorization”). More
than that, INS’s work-authorization authority was subject to litigation by the time
Congress considered IRCA. E.g., Diaz v. INS, 648 F. Supp. 638 (E.D. Cal. 1986)
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system,” including the history of work authorizations dating back to the 1940s,
the 1970s, and Congress’s understanding of the INS’s claim of authority in the lead
up to IRCA “is convincing support for the conclusion that Congress accepted and
ratified” the INS’s interpretation of Section 1103. Texas Dept. of Hous. & Cmty.
Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015).
Following enactment of IRCA, FAIR’s petition claiming that the INS lacked
extended the comment period on the FAIR petition, noting that IRCA’s recognition
direct bearing on the issues to be resolved.” 51 Fed. Reg. 45,338, 45,338 (Dec. 18,
1324a(h)(3) meant that the Attorney General lacked authority “to grant work
authorization except to those aliens who have already been granted specific
authorization by the [INA].” 52 Fed. Reg. 46,093 (Dec. 4, 1987). The INS squarely
rejected this view, reasoning, “the only logical way to interpret” Section 1324a(h)’s
reference to authorization by the Attorney General, “is that Congress, being fully
of the manner in which he has exercised that authority in this matter, defined
‘unauthorized alien’ in such fashion as to exclude aliens who have been authorized
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those who are authorized employment by statute.” Id. In light of that view, INS
authority. See 52 Fed. Reg. at 16,221, 16,228; see also Commodity Futures Trading
Comm’n v. Schor, 478 U.S. 833, 844 (1986) (stating that “considerable weight must
entrusted to administer”).
In the years following IRCA, INS, and later the Secretary of DHS, have
continued to issue work authorizations, including to aliens who are not specifically
granted work authorization under the INA. In IRCA, Congress granted lawful status
to millions of undocumented aliens who applied and satisfied certain residency and
other requirements. See, e.g., 8 U.S.C. 1255a(a) and (b). This enabled them to obtain
temporary resident status with work authorization. Id.; see 8 U.S.C. 1427(a). But
Congress did not extend legal protection to some of those aliens’ spouses and
1201 (Oct. 26, 1987). Nonetheless, in 1987, the INS established a “Family Fairness”
policy to provide some relief to those family members. Id. at 1203-1204. That relief
153, 152 (Feb. 5, 1990). In 1990, the INS expanded the “Family Fairness” policy,
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by ratifying it. See Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649, Tit.
III, 301, 104 Stat. 4978. The IMMACT simultaneously made a number of
amendments to IRCA’s work authorization provision. Tit. V, 521(a), 538, 104 Stat.
5053, 5056. But pointedly, Congress did not modify the language recognizing that
in response to the INS’s “Family Fairness” policy that could have extended work
the agency’s interpretation is persuasive evidence that the interpretation is the one
intended by Congress.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 159
(2013) (citation omitted). Since then, INS has consistently used its authority to issue
work authorizations. 61 Fed. Reg. 13,061 (Mar. 26, 1996) (inviting Violence Against
Women Act self-petitioners to apply for work authorization, notwithstanding the fact
that the original VAWA statute did “not direct the Service to provide employment
Release, USCIS Announces Interim Relief for Foreign Students Adversely Impacted
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students ... may ... apply for employment authorization based on economic
necessity.”).
In sum, the H-4 Rule is no different than the informal work authorization
programs in the 1940s and 50s, the agricultural work authorizations presaged by
Congress in the 1970s, and the numerous work authorization issued after the express
recognition of the Attorney General’s authority in the 1980s. Indeed, as Save Jobs
Executive’s work authorization authority. See Tr. of Oral Argument, United States
v. Texas, No. 15-674 at 89:4-25 (explaining that millions of people beyond the
DAPA recipients at issue in that case hold work authorization). This unbroken
history confirms what the plain text of Section 1103 makes clear: the Secretary has
Unsurprisingly, Save Jobs says little about this text or history. Rather, Save
Jobs presents an atextual, ahistorical, and flawed reading of the INA. (Br. 36-41).
Save Jobs begins by arguing that Section 1324a(h) “does not authorize DHS
to do anything.” (Br. at 38.) But that argument misses the point, as DHS made clear
when it promulgated the H-4 Rule, Section 1324a(h) is not a source of authority;
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Save Jobs is equally wrong that Section 1324’s reference to “by the
[Secretary]” refers only to categories of aliens for whom the INA itself already
directs that the Executive either must or may separately grant work authorization.
(Br. at 39.) First, Save Jobs’ reading ignores the nearly 40 years of pre-IRCA work
Section 1324a(h), that expressly recognized the Executive’s authority to issue work
authorization. Second, Save Jobs’ reading leaves nothing for the “by the [Secretary]”
clause to do. If a class of aliens has been granted work authorization—or has been
permitted to hold work authorization—by a provision of the INA, then those aliens
second clause of Section 1324a(h) does nothing on that view. True enough, Save
Jobs argues that there are times when the INA provides that DHS “may” grant work
authorization. But in those cases, the authority for work authorization still comes
from the INA, and therefore, is encapsulated in the “by this chapter” language.
Indeed, on Save Jobs’ view, Section 1324a(h) would have been written
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authorizations without a specific statutory grant is assumed does the “or by the
Save Jobs next argues that Section 1103 does not grant DHS the authority to
issue work authorizations. (Br. at 40.) Instead, on Save Jobs’ reading, Section 1103
necessitated” the regulation at issue. (Id. at 41.) That ahistorical argument was
rejected in Narenji v. Civiletti, when this Court interpreted Section 1103 to mean
that “[t]he [INA] need not specifically authorize each and every action taken by the
Attorney General, so long as his action is reasonably related to the duties imposed
upon him.” 617 F.2d 745, 747 (D.C. Cir. 1979). In any event, the argument is wrong
because work authorization has been deemed necessary to the proper functioning of
and the Secretary was fully justified in concluding that H-4 work authorizations were
“necessary” to support the H-1B program. 8 U.S.C. 1103(a). Indeed, the Secretary
made these findings, noting that the H-4 Rule would ameliorate problems in the H-
3
Contrary to Save Jobs’ contention, a provision of the INA indicating that the
Secretary “may” grant work authorizations is not surplusage. That provision offers
a means of channeling the Secretary’s discretions under Section 1103, alerting the
Secretary that Congress wants him or her to consider authorizations.
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1B program. 80 Fed. Reg. at 10284. Thus, even under Save Jobs’ crabbed reading
Finally, Save Jobs contends that “DHS claims that Congress ceded to it
complete authority to admit aliens into the American job market, whether or not such
aliens are in a lawful status or authorized to work.” (Id. at 36-37.) This appeal,
however, does not present the question of whether the Secretary may grant work
authorization to aliens without lawful status because the H-4 Rule applies only aliens
with lawful status. 80 Fed. Reg. at 10286. Even on its own terms, Save Jobs is
incorrect that DHS through the H-4 Rule claims unfettered authority to provide work
authorizations. For one, on its face Section 1103 requires the Secretary to find the
regulations are “necessary for carrying out his authority” to “administ[er] and
cannot grant work authorization where doing so is inconsistent with the INA. Cf.
Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015) (granting legal status and
explained, the H-4 program is necessary to administering the immigration laws, and
Given the text and history of the INA, deference is not needed to resolve this
dispute. But to the extent the Court finds any ambiguity, deference ices the already-
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baked cake under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842 (1984).
Chevron fully applies here. First, there is no doubt that DHS is charged with
implementing the INA. See Pub. L. No. 107-296, 116 Stat. 2135, 2273–74
(transferring INS’s authority to the Secretary). Second, the H-4 Rule was passed
533 U.S. 218, 227 (2001). Third, Congress has not directly spoken to the question
Congress has authorized the spouses of two other categories of visa holders to work.
(Br. at 31-32.) But this expressio unius argument fails for multiple, independent
reasons. First, it has little, if any, force in interpreting the INA. “[T]he expressio
unius canon does not apply ‘unless it is fair to suppose that Congress considered the
unnamed possibility and meant to say no to it,’ and that the canon can be overcome
by ‘contrary indications that adopting a particular rule or statute was probably not
meant to signal any exclusion.’” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381
(2013) (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, (2003), United
States v. Vonn, 535 U.S. 55, 65 (2002)). That has particular force in the agency
context because “a congressional mandate in one section and silence in another often
suggests not a prohibition but simply a decision not to mandate any solution in the
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second context, i.e., to leave the question to agency discretion.” Catawba County v.
EPA, 571 F.3d 20, 36 (D.C. Cir. 2009). The INA is exactly the type of statute where
the expressio unius cannon carries little force. See Creekstone Farms Premium Beef,
L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500 (D.C. Cir. 2008) (when a statute
necessary to ‘carry out’ the statute, we believe the [expressio unius] doctrine has
minimal, if any, application”). Second, the express grants cited by Save Jobs “were
not passed together as part of the original INA; rather, they were added piecemeal
Homeland Sec., 908 F.3d 476, 508 (9th Cir. 2018). “Given this context,” it is
“improbable that Congress ‘considered the … possibility’ of all other potential uses
for [work authorization] ‘and meant to say no’ to any other application of that tool
by the immigration agency.” Id. at 509 (quoting Barnhart, 537 U.S. at 168). Third,
Save Jobs’ expressio unius argument is contrary to the structure of the INA. As
explained, both Congress and the Executive have dual authority to issue work
this area. (See supra Part V.A-B.) Against this backdrop, the fact that Congress
chose to exercise its authority to grant some groups work authorization says nothing
about Congress’s desire for other groups to have (or not to have) work authorization.
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After all, Congress legislated with the understanding that the Executive could
Save Jobs next argues that Congress has occasionally considered, and failed
to pass, laws that would have extended work authorization to H-4 visa holders. (Br.
at 32.) The failed legislation says nothing about Congress’s view of the Secretary’s
authority. Indeed, there is little reason to credit Save Jobs’ historical interpretation
to rest an interpretation of a prior statute.” Home Care Ass’n of Am. v. Weil, 799 F.3d
1084, 1093 (D.C. Cir. 2015) (quoting Cent. Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 511 U.S. 164, 187 (1994)). “Congressional inaction lacks
from such inaction, including the inference that the existing legislation already
incorporated the offered change.” Cent. Bank of Denver, 511 U.S. at 187 (quoting
Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650, (1990)). Indeed,
reliance on failed legislation is especially inapt here because “Congress was aware”
extending work authorization to H-4 visa holders, and therefore, Congress’ inaction
could simply mean that Congress did not act because it assumed the Executive would
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Without any direct textual hook to refute Chevron, Save Jobs resorts to the
Fifth Circuit’s split decision in Texas v. United States, 809 F.3d 134 (5th Cir. 2015),
to argue that Congress has foreclosed the authority to issue H-4 work authorization.
But Texas does not help. In Texas, a divided Fifth Circuit panel concluded that the
DAPA program—which granted 4.3 million “unlawful aliens” lawful status and
of the factors the Fifth Circuit relied on to reach its incompatibility holding are not
present in the H-4 program. The Fifth Circuit found salient that:
Fairly construed, none of those features apply to the H-4 program. Unlike
DAPA, the H-4 program does not grant work authorization to “unlawful aliens.”
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Rather, all H-4 visas are given to lawful immigrants, and the H-4 program is
relatively small. Finally, unlike DAPA, the H-4 program is interstitial, providing
Legal Permanent Resident status or their voluntary departure. Indeed, on its own
terms, Texas is not applicable here, as the Texas majority noted “we conclude only
that the INA does not grant the Secretary discretion to grant deferred action and
Texas, 809 F.3d at 186 n.202. For these reasons, most courts have refused to apply
Texas’s statutory holding to cases involving DACA. E.g., Regents of the Univ. of
California v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 510 (9th Cir. 2018); Nat’l
Ass’n for the Advancement of Colored People v. Trump, 315 F. Supp. 3d 457, 472
(D.D.C. 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 426 (E.D.N.Y. 2018).
The same result should apply here; Texas says nothing about the authority to issue
without merit.
recent. (Br. at 32-36.) That is simply untrue. Since Section 1103 was enacted in 1952,
INS, and later DHS, have interpreted that provision to allow for work authorizations.
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Nor is Save Jobs correct that the H-4 Rule relies exclusively on power derived from
Section 1324a(h). To the contrary, the H-4 Rule was clear that “[t]he authority of the
[Secretary] for this regulatory amendment can be found in ... 6 U.S.C. 112, and ... 8
U.S.C. 1103(a), which authorize the Secretary to administer and enforce the
immigration and nationality laws.” 80 Fed. Reg. at 10285. Indeed, in the legal
authority section of the final H-4 Rule, DHS made plain that “[i]n addition” to the
nothing novel about that approach. Rather, the Executive has properly taken the view
that Section 1324 recognizes the power conferred in Section 1103 from the
inconsistent with prior judicial interpretations. (Br. at 42-43.) That is not true, as a
number of courts have found Executive authority to issue work authorization. See,
e.g., Regents of the Univ. of California, 908 F.3d at 508-09; Batalla Vidal, 279 F.
Supp. 3d at 426. Even as to the cases Save Jobs cites, the argument fails because, as
Save Jobs admits, none of the cases it cites are on point. (Br. at 42 (“Before Texas,
no earlier opinion ... had ever addressed the question of whether 8 U.S.C. §§ 1103(a)
and 1324a(h)(3) conferred such authority.”).) Two of its three cases involved
interpretation of specific work authorization rules, not the general power to allow
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work authorization under Section 1103. See, e.g., Int’l Longshoremen's &
Warehousemen’s Union v. Meese, 891 F.2d 1374, 1384 (9th Cir. 1989); Saxbe v.
Bustos, 419 U.S. 65, 66 (1974). The third case did not require recourse to 1103 either
because there the INA specifically precluded the aliens there from receiving work
authorizations. See Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 616 F.
Third, Save Jobs contends that in light of the INA’s legislative history, it is
“implausible” that Section 1103 gives DHS the authority to issue work
authorizations. (Br. at 44-47.) On Save Jobs’ reading, the only purpose of the INA
was to “provide[] strong safeguards for American labor.” (Id. at 45.) Save Jobs
misreads the legislative intent. True enough, one purpose of the INA is to ensure
jobs for American workers, but “no legislation pursues its purposes at all costs,” and
assume that whatever furthers the statute’s primary objective must be the law.”
Rodriguez v. United States, 480 U.S. 522, 525-26 (1987). Consistent with
multifaceted nature of immigration policy, the INA “is a very complex statute which
has many different purposes, some of which may appear at time to be in conflict
with others.” 52 Fed. Reg. at 46092-01, see also id. at 46093 (“It requires a simplistic
view of the purposes of the Act ... to contend that regulations should be promulgated
solely for the purpose of preventing any aliens without labor certification from being
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circumstances, the 1952 Congress, rather than attempting to answer the work-
authorization question for all future scenarios, instead delegated broad work
Fourth, Save Jobs contends that if the H-4 program is upheld, administrative
power in this area will be limitless. (Br. at 46-48.) Hardly so. There are internal,
Internally, Section 1103 requires regulations to be “necessary for carrying out his
The decision that any regulation is necessary can be tested through the normal
the remainder of the INA—DHS cannot grant work authorization when doing so is
inconsistent with the INA. Cf. Texas, 809 F.3d at 186 (finding that granting legal
status and work authorization to “unlawful aliens” was inconsistent with the INA).
Last, because there is dual authority to issue work authorizations, Congress always
maintains the authority to require or forbid work authorization as it sees fit. Thus,
Save Jobs’ parade of horribles, see Br. at 47-48 (attacking the B in Lieu of H
program, the DAPA program, the International Entrepreneur Rule, and the F-1
extension), is unfounded.
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CONCLUSION
For these reasons, this Court should affirm the judgment of the district court.
Respectfully submitted,
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CERTIFICATE AS TO PARTIES
Dhamija, and Sudarshana Sengupta state as follows: In Case No. 16-5287, Save Jobs
is the Defendant-Appellee.
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CERTIFICATE OF COMPLIANCE
certify that this motion complies with the volume limitation of D.C. Circuit Rule
32(e)(2)(B) because it contains 8,990 words. Intervenors further certify that this
motion complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the
type style requirements of Fed. R. App. P. 32(a)(6), because it has been prepared in
a proportionally spaced typeface using Microsoft Word 14-point Times New Roman
font.
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the District of Columbia by using
41