USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 1 of 27
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`ORAL ARGUMENT NOT YET SCHEDULED
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`No. 21-5028
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`UNITED STATES COURT OF APPEALS FOR THE
`DISTRICT OF COLUMBIA CIRCUIT
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`WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
`Appellant,
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`v.
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`U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
`Appellees.
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`
`On appeal from an order entered in the U.S. District Court for the
`District of Columbia
`No. 1:16-cv-01170-RBW
`The Hon. Reggie B. Walton
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`BRIEF BY AMICI CURIAE AMERICAN IMMIGRATION COUNCIL AND
`AMERICAN IMMIGRATION LAWYERS ASSOCIATION
`IN SUPPORT OF APPELLEES
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`Leslie K. Dellon (D.C. Bar #250316)
`Katherine Melloy Goettel* (IA SBN 23821)
`1331 G Street, NW, Suite 200
`Washington, DC 20005
`Telephone: (202) 507-7530
`ldellon@immcouncil.org
`kgoettel@immcouncil.org
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`Attorneys for Amici Curiae
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`*Not admitted to the D.C. Circuit bar
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 2 of 27
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`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES PER
`CIRCUIT RULE 28(a)(1)
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`A. Parties and Amici.
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`Except for the following, all parties, intervenors, and amici appearing before
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`the district court, and in this Court, are listed in the Brief for Appellant.
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`New amici in this Court are listed in the Briefs for the Appellees.
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`B. Rulings Under Review.
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`References to the rulings at issue appear in the Brief for Appellant.
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`C. Related Cases.
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`This case was previously before this Court in Wash. All. of Tech. Workers v.
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`U.S. Dep’t of Homeland Sec., No. 17-5110, 892 F.3d 332 (D.C. Cir. 2018).
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`Dated: June 17, 2021
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`/s/ Leslie K. Dellon
`Leslie K. Dellon (D.C. Bar #250316)
`202-507-7530
`ldellon@immcouncil.org
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`Attorney for Amici Curiae
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`ii
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 3 of 27
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`STATEMENT REGARDING CONSENT TO FILE, AUTHORSHIP AND
`SEPARATE BRIEFING (CORPORATE DISCLOSURE
`PREVIOUSLY FILED)
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`Pursuant to Circuit Rule 29(b), Amici filed a Notice to Participate, with
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`Consent, as Amici Curiae in Support of Appellees with this Court on June 4, 2021.
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`In their Notice to Participate, Amici represented that all parties consented, through
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`their respective counsel, to the filing of this brief. Their Notice to Participate also
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`included the separate Corporate Disclosure Statement required by Circuit Rule
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`26.1, which Rule 29(b) states must accompany a written representation of consent
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`to participate.
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`Pursuant to Fed. R. App. P. 29(a)(4)(E), this brief has not been authored, in
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`whole or in part, by counsel to any party in this case. No party or counsel to any
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`party contributed money intended to fund preparation or submission of this brief.
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`No person, other than the amici, their members, or their counsel, contributed
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`money that was intended to fund preparation or submission of this brief.
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`Pursuant to Circuit Rule 29(d), Amici certify that this separate amici brief is
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`necessary and does not duplicate any other brief that may be submitted. Amici seek
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`to assist the Court by providing historical background regarding the complex, but
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`complementary, network of statutory, regulatory and sub-regulatory provisions
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`addressing noncitizen work authorization.
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 4 of 27
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`TABLE OF CONTENTS
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`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES PER
`CIRCUIT RULE 28(a)(1) ......................................................................................... ii
`STATEMENT REGARDING CONSENT TO FILE, AUTHORSHIP AND
`SEPARATE BRIEFING (CORPORATE DISCLOSURE PREVIOUSLY
`FILED) ..................................................................................................................... iii
`TABLE OF AUTHORITIES ..................................................................................... v
`GLOSSARY ............................................................................................................ vii
`STATUTES AND REGULATIONS ..................................................................... viii
`I.
`INTEREST OF AMICI CURIAE ........................................................................ 1
`II. ARGUMENT .................................................................................................... 2
`A. Summary ........................................................................................................... 2
`B. Overview .......................................................................................................... 3
`1. 1952 INA and Implementing Agency Regulations ....................................... 5
`2. The Executive Branch Repeatedly Exercised its Delegated Authority
`Between 1952 and 1986....................................................................................... 8
`3. Congress Amended the INA Many Times Between 1952 and 1986 but did
`not Address the Agency’s Power to Authorize Noncitizen Employment .........12
`4. In 1986, Congress Endorsed the Executive’s Longstanding Exercise of
`Delegated Authority to Grant Employment Authorization ...............................14
`III. CONCLUSION ..............................................................................................15
`CERTIFICATE OF COMPLIANCE .......................................................................17
`CERTIFICATE OF SERVICE ................................................................................18
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`TABLE OF AUTHORITIES
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`Statutes
`8 U.S.C. § 1101(a)(15)(A)(i)-(ii) (1952) ................................................................... 6
`8 U.S.C. § 1101(a)(15)(A)(iii) (1952) ....................................................................... 6
`8 U.S.C. § 1101(a)(15)(E) (1952) .............................................................................. 5
`8 U.S.C. § 1101(a)(15)(E)(i) (1952) .......................................................................... 6
`8 U.S.C. § 1101(a)(15)(E)(ii) (1952) ......................................................................... 6
`8 U.S.C. § 1101(a)(15)(G)(i)-(v) (1952) .................................................................... 6
`8 U.S.C. § 1101(a)(15)(H) (1970) ...........................................................................12
`8 U.S.C. § 1101(a)(15)(H)(i) (1952) ......................................................................5, 6
`8 U.S.C. § 1101(a)(15)(H)(ii) (1952) ....................................................................5, 6
`8 U.S.C. § 1101(a)(15)(I) (1952) ............................................................................... 6
`8 U.S.C. § 1101(a)(15)(K) (1970) ...........................................................................13
`8 U.S.C. § 1101(a)(15)(L) (1970) ............................................................................13
`8 U.S.C. § 1101(a)(27)(D) (1965) ...........................................................................12
`8 U.S.C. § 1101(a)(27)(F)(i) (1952) .......................................................................... 6
`8 U.S.C. § 1101(a)(32) (1965) .................................................................................12
`8 U.S.C § 1103(a) (1952) .......................................................................................... 7
`8 U.S.C. § 1103(b) (1952) ......................................................................................... 7
`8 U.S.C. § 1153 (1965) ............................................................................................12
`8 U.S.C. § 1153(a)(1)(A) (1952) ............................................................................... 5
`8 U.S.C. § 1153(a)(3)(A) (1952) ............................................................................... 5
`8 U.S.C. § 1182(a)(14) (1952) ................................................................................... 5
`8 U.S.C. § 1182(a)(14) (1965) .................................................................................12
`8 U.S.C. § 1182(d)(5)(A) .........................................................................................12
`8 U.S.C. § 1184(a) (1952). ......................................................................................... 7
`8 U.S.C. § 1229c ........................................................................................................ 9
`8 U.S.C. § 1255(c) (1976) ........................................................................................13
`8 U.S.C. § 1324a(h)(3) (1986) .................................................................................15
`8 U.S.C. § 1324a(h)(3)(B) (1986) .............................................................................. 4
`Pub. L. No. 82-414, 66 Stat. 163 (June 27, 1952) ..................................................... 3
`Pub. L. No. 89-236, 79 Stat. 911 (Oct. 3, 1965) ......................................................12
`Pub. L. No. 91-225, 84 Stat. 116 (Apr. 7, 1970) .............................................. 12, 13
`Pub. L. No. 94-571, 90 Stat. 2703, 2706 (Oct. 20, 1976), .......................................13
`Pub. L. No. 96-212, § 401(b), 94 Stat. 102, 118 (Mar. 17, 1980) ...........................14
`Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986) .......................................... 14, 15
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`Regulations
`8 C.F.R. § 214.1(e) (1952) ......................................................................................... 9
`8 C.F.R. § 214.2 .......................................................................................................11
`8 C.F.R. § 214.2(f)(10)(ii)(A)(1)-(3) ......................................................................... 3
`8 C.F.R. § 214.2(f)(10)(ii)(C) .................................................................................... 3
`Federal Register
`Application to Accept or Continue Employment by G-4 Nonimmigrants, 43 Fed.
`Reg. 33229 (July 31, 1978) ...................................................................................10
`Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25079
`(May 5, 1981) ........................................................................................................11
`Employment Authorization, Proposed Rule, 45 Fed. Reg. 19563
` (Mar. 26, 1980) ....................................................................................................11
`Employment Authorization; Revision to Classes of Aliens Eligible, 46 Fed. Reg.
`55920 (Nov. 13, 1981) ..........................................................................................12
`Employment of Certain Nonimmigrants, 36 Fed. Reg. 8048 (Apr. 29, 1971) .......... 9
`Extension of Stay for Nonimmigrant Visitors for Pleasure B-2, 43 Fed.
`Reg. 12673 (Mar. 27, 1978) .................................................................................... 9
`Immigration and Nationality Regulations, 17 Fed. Reg. 11469 (Dec. 19, 1952) ...... 7
`Proposed Rules for Employment Authorization for Certain Aliens, 44 Fed. Reg.
`43480 (July 25, 1979) ...........................................................................................11
`Voluntary Departure Prior to Commencement of Hearing, 43 Fed. Reg. 29526
`(July 10, 1978) ..................................................................................................9, 10
`Other Authorities
`Immigration and Naturalization Service Operations Instructions 214.2(k)(5) ........13
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`AILA
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`GLOSSARY
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`American Immigration Lawyers Association
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`Council
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`American Immigration Council
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`DHS
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`Department of Homeland Security
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`INA
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`INS
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`OI
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`OPT
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`STEM
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`USCIS
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`Immigration and Nationality Act
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`Immigration and Naturalization Service
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`Operations Instructions
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`Optional Practical Training
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`Science, Technology, Engineering, and Mathematics
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`U.S. Citizenship and Immigration Services
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`STATUTES AND REGULATIONS
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`Except for the following, the applicable statutes are in the Brief for
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`Appellant.
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`8 U.S.C. § 1103(a) (1952).
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`The Attorney General shall be charged with the administration and enforcement of
`this Act and all other laws relating to the immigration and naturalization of
`[noncitizens], except insofar as this Act or such laws relate to the powers,
`functions, and duties conferred upon the President, the Secretary of State, the
`officers of the Department of State, or diplomatic or consular officers: Provided,
`however, That determination and ruling by the Attorney General with respect
`to all questions of law shall be controlling. He shall have control, direction, and
`supervision of all employees and of all the files and records of the Service. He
`shall establish such regulations; prescribe such forms of bond, reports, entries, and
`other papers; issue such instructions; and perform such other acts as he deems
`necessary for carrying out his authority under the provisions of this Act. He is
`authorized, in accordance with the civil-service laws and regulations and the
`Classification Act of 1949, to appoint such employees of the Service as he deems
`necessary, and to delegate to them or to any officer or employee of the Department
`of Justice in his discretion any of the duties and powers imposed upon him in this
`Act; he may require or authorize any employee of the Service or the Department of
`Justice to perform or exercise any of the powers, privileges, or duties conferred
`or imposed by this Act or regulations issued thereunder upon any other employee
`of the Service. He shall have the power and duty to control and guard the
`boundaries and borders of the United States against the illegal entry of aliens and
`shall, in his discretion, appoint for that purpose such number of employees of the
`Service as to him shall appear necessary and proper. He is authorized to confer or
`impose upon any employee of the United States, with the consent of the head of
`the Department or other independent establishment under whose jurisdiction the
`employee is serving, any of the powers, privileges, or duties conferred or imposed
`by this Act or regulations issued thereunder upon officers or employees of the
`Service. He may, with the concurrence of the Secretary of State, establish offices
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 9 of 27
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`of the Service in foreign countries; and, after consultation with the Secretary of
`State, he may, whenever in his judgment such action may be necessary
`to accomplish the purposes of this Act, detail employees of the Service
`for duty in foreign countries.
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`Pub. L. No. 82-414, § 103(a) of the Immigration and Nationality Act, 66 Stat. 163,
`173-74 (June 27, 1952).
`
`
` U.S.C. § 1103(b) (1952).
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` 8
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`The Commissioner shall be a citizen of the United States and shall be appointed by
`the President, by and with the advice and consent of the Senate, and shall receive
`compensation at the rate of $17,500 per annum. He shall be charged with any and
`all responsibilities and authority in the administration of the Service and of this Act
`which are conferred upon the Attorney General as may be delegated to him by the
`Attorney General or which may be prescribed by the Attorney General.
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`Pub. L. No. 82-414, § 103(b) of the Immigration and Nationality Act, 66 Stat. 163,
`174 (June 27, 1952)
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 10 of 27
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`I.
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`INTEREST OF AMICI CURIAE
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`Amici American Immigration Council (Council) and American Immigration
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`Lawyers Association (AILA) submit this brief in support of the position of the
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`Appellees. Amici seek to assist this Court by providing historical background
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`regarding the complex, but complementary provisions addressing noncitizen work
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`authorization. In particular, Amici focus on the period beginning in 1952, when
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`Congress adopted a major overhaul and consolidation of the nation’s immigration
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`laws and ending in 1986 with the passage of the first comprehensive bill
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`addressing noncitizen employment verification and enforcement.
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`The Council is a non-profit organization established to increase public
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`understanding of immigration law and policy, advocate for the fair and just
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`administration of our immigration laws, protect the legal rights of noncitizens, and
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`educate the public about the enduring contributions of America’s immigrants. The
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`Council frequently appears before federal courts on issues relating to the
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`interpretation of the Immigration and Nationality Act.
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`AILA is a national association with more than 15,000 members, including
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`lawyers and law school professors who practice and teach in the field of
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`immigration and nationality law. AILA seeks to advance the administration of
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`immigration and nationality law; to cultivate the jurisprudence of the immigration
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`laws; and to facilitate the administration of justice and elevate the standards of
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`those appearing in a representative capacity in immigration and naturalization
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`matters. AILA’s members practice regularly before the Department of Homeland
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`Security (DHS), immigration courts and the Board of Immigration Appeals, as well
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`as before federal courts.
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`II. ARGUMENT
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`Summary
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`A.
`The Executive Branch1 interpreted Congress’ broad delegation of authority
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`to administer and enforce the Immigration and Nationality Act (INA) to include
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`filling the gaps left by Congress regarding work authorization. For close to thirty-
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`five years, the Executive exercised this authority relating to work authorization
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`numerous times, granting work authorization to various classes of noncitizens.
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`During this period, Congress never limited such authority or otherwise indicated it
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`was wrong. To the contrary, it endorsed the Executive’s interpretation of its
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`authority by eventually copying the Executive’s language from its 1952
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`Because different executive level departments have exercised authority to
`1
`implement U.S. immigration laws at different points in time, Amici refer to these
`departments collectively as the Executive Branch. This term is intended to
`encompass both the Department of Justice and the Department of Homeland
`Security (DHS), including more specifically the Attorney General, the
`Commissioner of the former Immigration and Naturalization Service (INS), and
`the Secretary of DHS.
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 12 of 27
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`regulations—specifically, its use of the terms “authorized” and “unauthorized”
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`employment—and adopting the model of shared congressional and executive
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`responsibility for work authorization followed by the Executive for decades. The
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`Executive’s authorization of employment for optional practical training (OPT) is
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`but one example of the agency’s valid exercise of congressionally delegated
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`authority.2
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`B. Overview
`The Executive Branch has a long history of administrative grants of work
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`authorization to which Congress has acquiesced. Since at least 1952, when the
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`INA3 was enacted, Congress has played a limited role in specifying which
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`classifications of noncitizens are entitled to work authorization, instead delegating
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`this authority to the Executive Branch. Consequently, a complementary network of
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`statutory, regulatory and nonregulatory provisions has governed noncitizen work
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`authorization for decades.
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`OPT authorizes eligible academic students in F-1 nonimmigrant status to
`2
`gain experience as part of their education through employment directly related to
`their fields of study for a specified time period. Amici’s brief encompasses both
`the 12-month “standard” OPT and the 24-month extension for students with certain
`science, technology, engineering or mathematics (STEM) degrees. See 8 C.F.R.
`§ 214.2(f)(10)(ii)(A)(1)-(3) (“standard” OPT), 214.2(f)(10)(ii)(C) (STEM OPT).
`3
`The 1952 INA was a comprehensive immigration bill which consolidated in
`one location—with modifications and additions—the then-existing collection of
`separate immigration-related statutes. Pub. L. No. 82-414, 66 Stat. 163 (June 27,
`1952). The INA remains in place today, although it has been amended numerous
`times.
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 13 of 27
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`In regulations adopted to implement the 1952 INA, the former Immigration
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`and Naturalization Service (INS) introduced the terms “authorized” and
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`“unauthorized” as relating to employment and continued to use these terms
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`repeatedly in the ensuing decades. Additionally, it interpreted the INA as creating a
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`shared congressional and executive responsibility with respect to employment
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`authorization; depending on the circumstances, employment could be authorized
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`by either Congress or the Executive Branch pursuant to Congress’ delegation of
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`authority to it. In 1976—more than twenty years after the agency used the term
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`“unauthorized employment” in its 1952 regulations—Congress adopted this term
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`without defining it. In 1986, Congress defined the term “unauthorized alien” for
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`purposes of new employment verification provisions, specifying that an
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`“unauthorized” noncitizen for purposes of employment verification was someone
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`who, inter alia, was not “authorized to be so employed by this Act or by the
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`Attorney General.” 8 U.S.C. § 1324a(h)(3)(B) (emphasis added). Significantly, this
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`definition adopted the model of shared congressional and executive responsibility
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`for authorizing work which the agency had followed for almost 35 years.
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`Congress’ adoption of the agency’s terms— “authorized” and “unauthorized”—in
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`connection with noncitizen employment, coupled with its copying of the model of
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`shared responsibility, is an endorsement of the Executive’s long history of
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`exercising its delegated authority to fill the employment authorization gaps left by
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`Congress, which includes OPT.
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`1952 INA and Implementing Agency Regulations
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`1.
`The 1952 INA did not specify work authorization for all classes of
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`noncitizens who could lawfully work in the United States, such as, for example,
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`family-based immigrants. Congress only addressed employment with respect to
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`employment-based immigrants, certain nonimmigrants, and grounds of
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`inadmissibility. See, e.g., 8 U.S.C. §§ 1101(a)(15)(E) (1952), (H)(i)-(ii)
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`(nonimmigrant examples), 1153(a)(3)(A) (immigrant), 1182(a)(14) (certain
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`employment-based immigrants inadmissible without Labor Secretary’s
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`certification as to insufficient U.S. workers and no adverse impact on wages and
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`working conditions).
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`In particular, Congress incorporated the prior system of setting annual
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`numerical limitations (quotas) based upon country of origin. Congress allocated a
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`portion of the annual quota “(A) to qualified quota immigrants whose services are
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`determined by the Attorney General to be needed urgently in the United States
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`because of the high education, technical training, specialized experience, or
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`exceptional ability of such immigrants and to be substantially beneficial
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`prospectively to the national economy, cultural interests, or welfare of the United
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`States, …” 8 U.S.C. § 1153(a)(1)(A) (1952) Upon their admission, these
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`individuals were authorized to work by virtue of their classification as
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`employment-based immigrants. Similarly, Congress also included a category under
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`which a religious minister, entering “solely” to work in that vocation, could
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`become a permanent resident of the United States without being subject to an
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`annual numerical limitation (a “nonquota immigrant” category). 8 U.S.C.
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`§1101(a)(27)(F)(i) (1952).
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`The 1952 INA also included several nonimmigrant categories for which
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`Congress specified work authorization, such as treaty traders and investors,
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`noncitizens of distinguished merit and ability, noncitizens coming to the U.S. to
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`perform temporary labor, and foreign media representatives. See 8 U.S.C.
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`§§ 1101(a)(15)(E)(i) (1952); 1101(a)(15)(E)(ii); 1101(a)(15)(H)(i);
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`1101(a)(15)(H)(ii); 1101(a)(15)(I). In several other categories, Congress did not
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`specifically provide for work authorization, but the descriptions left no doubt that
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`the noncitizens would be working in the United States. See, e.g.,
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`§ 1101(a)(15)(A)(i)-(ii) (certain types of accredited diplomats, other foreign
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`officials and employees); § 1101(a)(15)(A)(iii) (1952) (their personal staff);
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`§ 1101(a)(15)(G)(i)-(v) (1952) (international organization principal and accredited
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`representatives and their personal staff).
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`Beyond establishing these categories of noncitizens eligible to work in the
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`United States, Congress also delegated broad authority to the Executive Branch to
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`“administ[er] and enforce[]” the INA. 8 U.S.C § 1103(a) (1952). More specifically,
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`it empowered the Executive, through the Attorney General, inter alia, to “establish
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`such regulations” and “perform such other acts as he deems necessary for carrying
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`out his authority under the provisions of this Act.” Id. Additionally, in a still-
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`existing provision, Congress specifically granted the Executive the authority to
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`determine the conditions under which nonimmigrants, including those at issue
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`here, would be permitted into the United States and allowed to remain: “The
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`admission to the United States of any [noncitizen] as a nonimmigrant shall be for
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`such time and under such conditions as the Attorney General may by regulation
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`prescribe, . . .” 8 U.S.C. § 1184(a) (1952).
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`
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`Congress further specified that the Attorney General could delegate his
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`duties and powers, § 1103(a), including to the Commissioner of INS:
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`[The Commissioner] shall be charged with any and all
`responsibilities and authority in the administration of the
`Service and of this Act which are conferred upon the Attorney
`General as may be delegated to him by the Attorney General or
`which may be prescribed by the Attorney General.
`
` U.S.C. § 1103(b) (1952).
`In December 1952, the Immigration and Naturalization Service (INS) issued
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` 8
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`final regulations implementing the 1952 Act. Immigration and Nationality
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`Regulations, 17 Fed. Reg. 11469, 11469-564 (Dec. 19, 1952). In these, INS
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`specifically addressed its authority to grant work authorization to nonimmigrants.
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`7
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`See 17 Fed. Reg. at 11489 (codified at 8 C.F.R. § 214.2 (1953), Conditions of
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`nonimmigrant status. For those categories in which Congress specified
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`employment, compliance with the employment conditions incident to that status
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`was required to maintain status. See, e.g., 17 Fed. Reg. at 11491 (codified at
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`8 C.F.R. § 214e.4(a)(2) (1953)) (treaty trader fails to maintain status if he changes
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`his activities to those of a treaty investor without prior consent from INA); 17 Fed.
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`Reg. at 11494 (codified at 8 C.F.R. §§ 214i.3-214i.4 (1953)) (an information media
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`representative fails to maintain status if he changes employment without prior INS
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`consent). But INS also gave notice that, to meet the conditions of nonimmigrant
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`status, a noncitizen without the congressionally specified authorization could not
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`work unless INS approved the employment:
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`while in the United States [a nonimmigrant] will not engage in
`any employment or activity inconsistent with and not essential
`to the status under which he is in the United States unless such
`employment or activity has first been authorized by the district
`director or the officer in charge having administrative
`jurisdiction over the [nonimmigrant’s] place of temporary
`residence in the United States.
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`17 Fed. Reg. at 11489 (codified at 8 C.F.R. § 214.2(c) (1953)) (emphasis added).
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`2.
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`The Executive Branch Repeatedly Exercised its Delegated
`Authority Between 1952 and 1986
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`Between 1952 and 1986, INS routinely exercised the authority to grant work
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`authorization to classes of noncitizens beyond those granted by Congress pursuant
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`to its interpretation of the statutory delegation of authority. In 1971, INS amended
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 18 of 27
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`its regulations to provide more succinctly that nonimmigrant work authorization
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`either was specified in the INA or approved by the agency per its delegated
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`authority. After explicitly prohibiting visitors and noncitizens in transit from
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`working, the agency stated that any other nonimmigrant “may not engage in any
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`employment unless he has been accorded a nonimmigrant classification which
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`authorizes employment or he has been granted permission to engage in
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`employment in accordance with the [agency’s regulations].” Employment of
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`Certain Nonimmigrants, 36 Fed. Reg. 8048, 8049 (Apr. 29, 1971) (codified at
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`8 C.F.R. § 214.1(c) (1972)).4
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`The INS promulgated two regulations in 1978 which granted work
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`authorization to classes of noncitizens not authorized to work by statute. The first
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`provided work authorization to certain categories of noncitizens to whom the
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`agency had granted voluntary departure in lieu of deportation.5 Voluntary
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`Departure Prior to Commencement of Hearing, 43 Fed. Reg. 29526, 29528 (July
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`10, 1978) (codified at 8 C.F.R. § 242.5(a)(3) (1979) (indicating that INS could
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`stamp “Employment Authorized” on the noncitizen’s Arrival/Departure form). The
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`This regulation was later redesignated as 8 C.F.R. § 214.1(e) without
`4
`change. Extension of Stay for Nonimmigrant Visitors for Pleasure B-2, 43 Fed.
`Reg. 12673, 12674 (Mar. 27, 1978).
`5
`A person granted voluntary departure agrees to depart the United States
`within a set period of time in exchange for the agency not pursuing deportation
`proceedings. See 8 U.S.C. § 1229c.
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`USCA Case #21-5028 Document #1902749 Filed: 06/17/2021 Page 19 of 27
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`eligible classes included certain students and exchange visitors or their dependents;
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`quota-exempt and non-quota immigrants who were under temporal restrictions;
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`noncitizens granted asylum but not parole or a stay of deportation; and noncitizens
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`granted voluntary departure by INS for “compelling circumstances.” See id.
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`(codified at 8 C.F.R. § 242.5(a)(2)(v)-(viii) (1979)). INS asserted 8 U.S.C. § 1103
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`as its authority for this regulatory grant of work authorization. Id.
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`Relying on this same statutory grant of authority, INS issued a second
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`regulation in 1978 establishing criteria by which it would decide applications for
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`work authorization by spouses and unmarried dependent children of international
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`organization officers or employees (the G-4 nonimmigrant category). Application
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`to Accept or Continue Employment by G-4 Nonimmigrants, 43 Fed. Reg. 33229,
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`33231 (July 31, 1978). Justifying its exercise of this authority, the agency
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`explained:
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`spouses and dependents are
`[INA], G-4
`the
`Under
`nonimmigrants. Nonimmigrants generally are prohibited from
`working by Service regulations, unless permission to work has
`first been granted by the Service . . . . [T]he proposed G-4
`regulation does not contravene the cited U.N. Headquarters
`Agreement, nor is it inconsistent with the authority of Congress
`over [noncitizens] in the United States which has been delegated
`through the Attorney General to the Service under the [INA].
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`Id. at 33230.
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`In 1979, INS proposed “for the first time [to] codify” employment
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`authorization procedures contained in its Operations Instructions and in informal
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`policy statements for its field offi