`
`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided October 4, 2022
`
`Argued November 3, 2021
`
`
`No. 21-5028
`
`WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
`APPELLANT
`
`v.
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
`AL.,
`APPELLEES
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:16-cv-01170)
`
`
`
`
`
`John M. Miano argued the cause and filed the briefs for
`appellant. Dale L. Wilcox entered an appearance.
`
`Julie Axelrod and Richard P. Hutchison were on the brief
`for amici curiae Landmark Legal Foundation, et al. in support
`of appellant.
`
`Joshua S. Press, Senior Litigation Counsel, U.S.
`Department of Justice, argued the cause for appellees. With
`him on the brief were Brian M. Boynton, Acting Assistant
`Attorney General, and Glenn M. Girdharry, Assistant Director.
`
`
`
`
`
`
`USCA Case #21-5028 Document #1967339 Filed: 10/04/2022 Page 2 of 77
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`2
`Paul W. Hughes argued the cause for intervenor appellees.
`With him on the brief were Andrew A. Lyons-Berg, Daryl
`Joseffer, Paul Lettow, and Jason Oxman.
`
`Leslie K. Dellon was on the brief for amici curiae
`American Immigration Council and American Immigration
`Lawyers Association in support of appellees.
`
`Sean H. Donahue, Andrew D. Silverman, and Elizabeth R.
`Cruikshank were on the brief for amici curiae FWD.us, et al.
`in support of appellees.
`
`Ishan K. Bhabha was on the brief for amicus curiae The
`President’s Alliance on Higher Education and Immigration in
`support of appellees.
`
`
`Megan C. Gibson was on the brief for amicus curiae
`Niskanen Center in support of appellees. Ciara W. Malone
`entered an appearance.
`
`Before: HENDERSON, TATEL,* and PILLARD, Circuit
`Judges.
`
`Opinion for the Court filed by Circuit Judge PILLARD.
`
`Opinion concurring in part and dissenting in part by
`Circuit Judge Henderson.
`
`
`PILLARD, Circuit Judge: Since before Congress enacted
`the Immigration and Nationality Act of 1952 (INA), the
`Executive Branch under every President from Harry S. Truman
`onward has interpreted enduring provisions of the immigration
`
`
`* Judge Tatel assumed senior status after this case was argued and
`before the date of this opinion.
`
`
`
`
`
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`3
`laws to permit foreign visitors on student visas to complement
`their classroom studies with a limited period of post-
`coursework Optional Practical Training (OPT). A 1947 Rule
`allowed foreign students “admitted temporarily to the United
`States . . . for the purpose of pursuing a definite course of
`study” to remain here for up to eighteen months following
`completion of coursework for “employment for practical
`training” as required or recommended by their school. That
`program has persisted and been continually updated across the
`ensuing seventy years.
`
`Today, over one million international students come to the
`United States each year on student visas, and over one hundred
`thousand of them complete a period of practical training. See
`U.S. Immigration and Customs Enforcement: Student and
`Visitor Exchange Program, 2021 SEVIS By the Numbers
`Report 2, 4-5 (April 6, 2022). The current Department of
`Homeland Security (DHS) OPT Rule authorizes up to one year
`of post-graduation on-the-job practical training directly related
`to the student’s academic concentration, with up to 24
`additional months for students
`in science,
`technology,
`engineering and mathematics (STEM) fields. The OPT Rule
`requires an applicant for practical training to be enrolled on a
`full-time basis at an authorized academic institution that
`requires or recommends it as directly related to the student’s
`coursework. The practical training must be approved by both
`the school and DHS, the student must be registered with DHS
`as an OPT participant, and the student’s practical training must
`be overseen by both the employer and the school.
`
`The Secretary of Homeland Security promulgated the
`challenged OPT Rule pursuant to the Executive’s longstanding
`authority under the INA to set the “time” and “conditions” of
`nonimmigrants’ stay
`in
`the United States.
` 8 U.S.C.
`§ 1184(a)(1). The Rule is an exercise of that authority over
`
`
`
`
`
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`4
`the country on
`to enter
`foreign students authorized
`nonimmigrant F-1 student visas. 8 U.S.C. § 1101(a)(15)(F)(i).
`The time-and-conditions authority and the foreign student visa
`category were both already on the books when Congress
`conducted its in-depth review and synthesis of immigration law
`to enact the 1952 INA. Congress knew that the statutory
`powers it chose to preserve in that Act had long been used by
`the Executive to permit foreign students who had entered the
`United States in order to attend school to stay after graduation
`for a period of practical training as required or recommended
`by their school. Lawmakers have closely scrutinized the
`immigration laws many times since then. Congress has
`repeatedly amended the pertinent provisions. But it has never
`once questioned the statutory support for the Optional Practical
`Training program.
`
`Washington Alliance of Technology Workers (Washtech)
`argues that the statutory definition of the F-1 visa class
`precludes
`the Secretary from exercising
`the
`time-and-
`conditions authority to allow F-1 students to remain for school-
`recommended practical training after they complete their
`coursework. But that argument wrongly assumes that, beyond
`setting terms of entry, the visa definition itself precisely
`demarcates the time and conditions of the students’ stay once
`they have entered. Congress gave that control to the Executive.
`The F-1 definition tethers the Executive’s exercise of that
`control, but by its plain terms does not exhaustively delimit it.
`We hold that the statutory authority to set the time and
`conditions of F-1 nonimmigrants’ stay amply supports the
`Rule’s OPT program.
`
`The practical training opportunities the Rule permits
`reasonably relate to the terms of the F-1 visa. The INA’s text
`and structure make clear that Congress intended the Secretary’s
`time-and-conditions authority to be exercised in a manner
`
`
`
`
`
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`5
`appropriate to the types of people and purposes described in
`each individual visa class—a constraint that the Secretary’s
`overarching administrative-law obligations confirm. To be
`valid, the challenged post-graduation OPT Rule, including its
`STEM extension, must reasonably relate to the distinct
`composition and purpose of the F-1 nonimmigrant visa class.
`We hold that they do. The Rule closely ties students’ practical
`training to their course of study and their school. OPT is time-
`limited, and the extension period justified in relation to the visa
`class. The record shows that practical training not only
`enhances the educational worth of a degree program, but often
`is essential to students’ ability to correctly use what they have
`learned when they return to their home countries. That is
`especially so in STEM fields, where hands-on work is critical
`for understanding fast-moving technological and scientific
`developments.
`
`Finally, Washtech sees another lack of statutory authority
`for the Rule: In its view, the Executive cannot authorize any
`employment at all, including for Optional Practical Training.
`That argument fails, too. As Congress itself has recognized,
`the Secretary’s statutory authority to set the “conditions” of
`nonimmigrants’ stay in the United States includes the power to
`authorize employment reasonably related to the nonimmigrant
`visa class. Authorizing foreign students to engage in limited
`periods of employment for practical training as their schools
`recommend according to the terms set out in the Rule is a valid
`exercise of that power.
`
`As further explained below, we affirm the judgment of the
`district court sustaining the OPT Rule’s authorization of a
`limited period of post-coursework Optional Practical Training,
`if recommended and overseen by the school and approved by
`DHS, for qualifying students on F-1 visas.
`
`
`
`
`
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`
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`6
`I. BACKGROUND
`
`A.
`
`
`The INA sets the terms on which consular officers at U.S.
`embassies and consulates abroad may issue visas to both
`prospective “immigrants” and “nonimmigrants.” 8 U.S.C.
`§ 1201(a)(1). “Immigrant” visas are issued to foreign nationals
`intending
`to move
`to
`the United States permanently.
`“Nonimmigrant” visas are for foreign nationals seeking to
`come into the country temporarily for an identified purpose.
`The INA’s definitional section lists several dozen classes of
`foreign nationals who may be eligible for nonimmigrant visas.
`8 U.S.C. § 1101(a)(15). Those classes are often referred to by
`their clause number within subparagraph (a)(15) of section
`1101. For example, “A-1” visas grant entry to certain foreign
`dignitaries, “B-1” to business travelers, “H-1B” to persons in
`certain
`specialty occupations, “H-2A”
`to
`temporary
`agricultural workers, “I” to journalists, and “P” to certain types
`of visiting performers. See 8 U.S.C. §§ 1101(a)(15)(A)(i),
`1101(a)(15)(B), 1101(a)(15)(H)(i)(b) & (ii)(a), 1101(a)(15)(I),
`1101(a)(15)(P).
`
`An F-1 foreign-student visa may be issued to:
`
`an alien having a residence in a foreign country which
`he has no intention of abandoning, who is a bona fide
`student qualified
`to pursue a
`full course of
`study and who
`seeks
`to
`enter
`the United
`States temporarily and solely for the purpose of
`pursuing such a course of study .
`.
`. at an
`established college,
`university,
`seminary,
`conservatory, academic high school, elementary
`school, or other academic
`institution or
`in an
`accredited language training program in the United
`
`
`
`
`
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`7
`States, particularly designated by him and approved by
`the Attorney General after consultation with the
`Secretary of Education, which institution or place of
`study shall have agreed to report to the Attorney
`General
`the
`termination of attendance of each
`nonimmigrant student, and if any such institution of
`learning or place of study fails to make reports
`promptly the approval shall be withdrawn . . . .
`
`Id. § 1101(a)(15)(F)(i). Like other visa classes defined in
`section 1101(a)(15), F-1 identifies entry conditions but “is
`silent as to any controls to which these aliens will be subject
`after they arrive in this country.” Rogers v. Larson, 563 F.2d
`617, 622-23 (3d Cir. 1977).
`
`Those post-arrival controls are spelled out pursuant to
`section 1184(a)(1), providing the Executive authority to set the
`“time” and “conditions” of admission for nonimmigrant visa-
`holders, including those who enter the country with F-1 visas.
`Section 1184(a)(1) provides:
`
`The admission to the United States of any alien as a
`nonimmigrant shall be for such time and under such
`conditions as the Attorney General may by regulations
`prescribe . . . .
`
`8 U.S.C. § 1184(a)(1); see Rogers, 563 F.2d at 622-23. The
`balance of section 1184(a)(1) affords the Attorney General the
`authority, as he “deems necessary,” to require of any
`nonimmigrant
`
`the giving of a bond with sufficient surety in such sum
`and containing such conditions as the Attorney
`General shall prescribe, to insure that at the expiration
`of such time or upon failure to maintain the status
`under which he was admitted, or to maintain any status
`
`
`
`
`
`USCA Case #21-5028 Document #1967339 Filed: 10/04/2022 Page 8 of 77
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`8
`subsequently acquired under section 1258 of this title
`[allowing change in nonimmigrant status], such alien
`will depart from the United States.
`
`8 U.S.C. § 1184(a)(1).1 The INA authorizes the Secretary to
`“establish such regulations” as are “necessary for carrying out
`his authority under” the statute and enforcing its terms. Id.
`§ 1103(a)(1)-(3).
`
`The INA thus defines categories of visa eligibility and
`empowers the Secretary, guided by those visa categories, to
`regulate how long and under what conditions nonimmigrants
`may stay in the country.
`
`B.
`
`
`
`
`Pertinent aspects of the INA’s statutory framework date
`back nearly a century, to the Immigration Act of 1924. In that
`Act, Congress established a student visa category materially
`the same as its modern F-1 counterpart, authorizing entry of
`“[a]n immigrant who is a bona fide student . . . who seeks to
`enter the United States solely for the purpose of study at an
`accredited school . . . which shall have agreed to report to the
`Secretary of Labor the termination of attendance of each
`immigrant student.” Immigration Act of 1924, Pub. L. No. 68-
`139, § 4(e), 43 Stat. 153, 155; accord 8 U.S.C.
`
`1 A note on nomenclature: Section 1184(a)(1), which was enacted
`when the Immigration and Naturalization Service was housed in the
`Department of Justice, refers to the Attorney General. That authority
`was transferred in 2002 to DHS so is currently exercised by the
`Secretary of Homeland Security. At times we refer to either or both
`DHS or its United States Customs and Immigration Service (USCIS)
`and DOJ or its Immigration and Naturalization Service (INS) simply
`as the Executive.
`
`
`
`
`
`
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`9
`§ 1101(a)(15)(F)(i). Then, as today, the Act specified that
`“[t]he admission to the United States” of what were then called
`“non-quota immigrants,” including visiting students, would
`“be for such time as may be by regulations prescribed, and
`under such conditions as may be by regulations prescribed.”
`Immigration Act of 1924 § 15, 43 Stat. at 162-63; accord 8
`U.S.C. § 1184(a)(1). The 1924 Act authorized the Attorney
`General to require foreign students to post bonds to ensure
`compliance with any prescribed time and conditions. § 15, 43
`Stat. at 163.
`
`Congress has repeatedly reinforced that approach, with F-
`1 directly setting entry conditions and the Executive regulating
`the terms of stay pursuant to its statutory time-and-conditions
`authority. Congress made no changes across the intervening
`decades to disapprove post-graduation practical training, even
`as it overhauled other aspects of our immigration laws: The
`Immigration and Nationality Act of 1952 created the modern
`nonimmigrant categories—including
`the F-1 class—and
`restated both the basic eligibility criteria for student visas and
`the grant to the Executive of time-and-conditions authority
`over the terms of nonimmigrants’ stay. See Immigration and
`Nationality Act, Pub. L. No. 82-414, §§ 101(15)(F), 214(a), 66
`Stat. 163, 168, 189 (1952).
`
`Since it overhauled immigration law in 1952, Congress has
`made some tweaks to the student visa and practical training
`regimes. It has, for example, authorized the noncitizen spouses
`and children of F-1 students to accompany them, Pub. L. No.
`87-256, § 109(a), 75 Stat. 527, 534 (1961), required specific
`employment authorization and verification by employers for
`most noncitizens as a condition of their employment in the
`United States, Pub. L. No. 99-603, § 101, 100 Stat. 3359, 3360-
`74 (1986), and, after the September 11, 2001 attacks,
`strengthened the program for monitoring permissions and
`
`
`
`
`
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`10
`approvals of foreign students’ study in the United States, Pub.
`L. No. 107-173, §§ 501-502, 116 Stat. 543, 560-63 (2002). But
`Congress has left unchanged the key terms and basic
`framework that statutorily define visa categories and empower
`the Executive
`to specify by regulation
`the
`terms of
`nonimmigrants’ presence in the United States.
`
`The Executive has consistently exercised those enduring
`statutory powers to maintain and control the OPT program.
`From at least the 1940s onward, the Executive has used its
`statutory
`time-and-conditions authority
`to permit post-
`coursework employment as a form of practical training for
`student visa-holders. With key terms strikingly similar to the
`wording in the current OPT Rule, the 1947 rule governing
`students who were “admitted temporarily to the United States
`. . . for the purpose of pursuing a definite course of study”
`provided that:
`
`In cases where employment for practical training is
`required or recommended by the school, the [INS]
`district director may permit the student to engage in
`such employment for a six-month period subject to
`extension for not over two additional six-month
`periods, but any such extensions shall be granted only
`upon certification by the school and the training
`agency
`that
`the practical
`training cannot be
`accomplished in a shorter period of time.
`
`12 Fed. Reg. 5,355, 5,355, 5,357 (Aug. 7, 1947). The 1947
`regulation authorized practical
`training
`to occur “after
`completion of the student’s regular course of study.” S. Rep.
`No. 81-1515, at 503 (1950).
`
`The Executive has explicitly reaffirmed that understanding
`in regulations spanning a dozen presidential administrations: It
`has long used its statutory authority over the “time” of
`
`
`
`
`
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`11
`nonimmigrant admission to set the length of F-1 visa-holders’
`permitted presence in the United States and the “conditions”
`they must meet while here.2 Rather than admitting F-1 students
`for a particular interval of time, DHS admits them for the
`“duration of [their] status.” 8 C.F.R. § 214.2(f)(5)(i); see id.
`§ 214.2(f)(7)(i). Per DHS regulations, the duration of that
`status includes the time during which they are full-time
`students in approved courses of study. Id. § 214.2(f)(5)(i).
`And it includes standardized periods when they may be here
`under other, related conditions—for example, for up to a month
`before and
`two months after starting coursework,
`id.
`§ 214.2(f)(5)(i), (iv), up to five months during approved gaps
`between educational levels, id. § 214.2(f)(5)(ii), (f)(8)(i), on
`vacation between terms, id. § 214.2(f)(5)(iii), and—the subject
`of this case—while they engage in capped periods of practical
`training after completion of coursework, id. § 214.2(f)(5)(i),
`(f)(10)(ii)(A)(3).
`
`
`2 See, e.g., 34 Fed. Reg. 18,085, 18,085 (Nov. 8, 1969) (extending
`the availability of practical training from 6 to 18 months); 38 Fed.
`Reg. 35,425, 35,426 (Dec. 28, 1973) (reauthorizing the preexisting
`practical training regime); 42 Fed. Reg. 26,411, 26,413 (May 24,
`1977) (permitting students in certain fields to engage in practical
`training “[a]fter completion of a course or courses of study”); 48 Fed.
`Reg. 14,575, 14,581, 14,586 (Apr. 5, 1983) (allowing practical
`training “after the completion of a course of study” regardless of
`degree program); 57 Fed. Reg. 31,954, 31,956 (July 20, 1992) (using
`the term “Optional [P]ractical [T]raining” for the first time to
`describe the temporary employment available to F-1 students); 81
`Fed. Reg. 13,040, 13,041 (Mar. 11, 2016) (extending the OPT period
`for up to twenty-four months for F-1 students in STEM fields). We
`discuss these regulations in further detail infra at 31-32.
`
`
`
`
`
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`
`12
`C.
`
`
`Washtech challenges the Secretary’s statutory authority to
`permit F-1 visa-holders who have completed their coursework
`to undertake a capped period of employment as a form of
`practical training—as recommended or required by their
`schools and approved by the Secretary. See 8 C.F.R.
`§ 214.2(f)(5)(i). As already noted, OPT continues the
`Executive’s
`longstanding policy of authorizing visiting
`students to work here in their field, under the auspices of their
`school, for a limited period to cement their classroom learning
`and ensure they can use that knowledge effectively at work
`when they return to their home countries. See 57 Fed. Reg.
`31,954, 31,954-57 (July 20, 1992) (detailing the terms of OPT).
`
`training allow
`The regulations governing practical
`approved students to remain in the United States for up to one
`year following completion of their course of study if they are
`“engag[ed] in authorized practical training.” 8 C.F.R.
`§ 214.2(f)(5)(i), (f)(10), (f)(11). In 2008, the Department
`promulgated a rule allowing F-1 visa-holders with STEM
`degrees to apply for an OPT extension of up to seventeen
`months. See 73 Fed. Reg. 18,944 (Apr. 8, 2008). The district
`court vacated that rule as unlawfully issued without notice and
`comment but stayed the vacatur to allow DHS to correct that
`error. Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland
`Sec. (Washtech I), 156 F. Supp. 3d 123 (D.D.C. 2015). In
`2016, the Secretary did so, promulgating after notice and
`comment a renewed STEM practical training extension
`program. See 81 Fed. Reg. 13,040 (Mar. 11, 2016). We then
`vacated the district court’s 2015 decision as moot. See Wash.
`All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.
`(Washtech II), 650 F. App’x 13 (D.C. Cir. 2016). The 2016
`Rule carries forward the existing allowance of up to a year of
`practical training related to the student’s field of study and adds
`
`
`
`
`
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`13
`an extension for STEM students of up to twenty-four months.
`See 81 Fed. Reg. at 13,041; 8 C.F.R. § 214.2(f)(10)(ii)(C).
`
`The current OPT Rule defines the post-coursework
`practical training at issue here as follows:
`
`(A) General. Consistent with the application and
`approval process in paragraph (f)(11) of this section, a
`student may apply to [United States Customs and
`Immigration Service] for authorization for temporary
`employment for optional practical training directly
`related to the student’s major area of study. The student
`may not begin optional practical training until the date
`indicated on his or her employment authorization
`document, Form I-766. A student may be granted
`authorization to engage in temporary employment for
`optional practical training:
`
`* * *
`
`(3) After completion of the course of study, or, for a
`student in a bachelor’s, master’s, or doctoral degree
`program, after completion of all course requirements
`for the degree (excluding thesis or equivalent).
`Continued enrollment, for the school’s administrative
`purposes, after all requirements for the degree have
`been met does not preclude eligibility for optional
`practical training. A student must complete all
`practical training within a 14-month period following
`the completion of study, except that a 24-month
`extension pursuant to paragraph (f)(10)(ii)(C) of this
`section [for STEM students] does not need to be
`completed within such 14-month period.
`
`8 C.F.R. § 214.2(f)(10)(ii). The Rule limits post-coursework
`OPT to “an F-1 student who has been lawfully enrolled on a
`
`
`
`
`
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`14
`full time basis, in a [United States Customs and Immigration]
`Service-approved college, university, conservatory, or
`seminary for one full academic year,” allowing such a student
`to seek “employment authorization for practical training in a
`position that is directly related to his or her major area of
`study.” Id. § 214.2(f)(10).
`
`The preamble to the final rule explains that the “core
`purpose” of the challenged STEM OPT extension is to “allow
`participating students to supplement their academic knowledge
`with valuable practical STEM experience.” 81 Fed. Reg. at
`13,041. More specifically, the 24-month STEM extension will,
`according to DHS, “enhance [participating] students’ ability to
`achieve the objectives of their courses of study by allowing
`them to gain valuable knowledge and skills through on-the-job
`training that may be unavailable in their home countries.” Id.
`at 13,042-43. The rule also “improves and increases oversight
`over STEM OPT extensions” in order to further “guard[]
`against adverse impacts on U.S. workers.” Id. at 13,040,
`13,049.
`
`To realize those purposes, the OPT Rule requires specific
`actions by students, schools, employers, and the government to
`design, approve, and monitor the practical training component
`for each participating student. First, a school administrator
`responsible for overseeing the education of F-1 students—the
`Designated School Official—must recommend the student to
`DHS as someone whose education will be enhanced by on-the-
`job practical training, and DHS must favorably adjudicate the
`application. 8 C.F.R. § 214.2(f)(10)(ii)(C)(3), (f)(11)(i)-(iii);
`id. § 214.3(l)(1). Second, the student and the school official
`must settle on a proposal for practical work “directly related to
`the degree that qualifies the student for” the extension—in this
`case, certain STEM degrees. Id. § 214.2(f)(10)(ii)(C)(4).
`Third, the student and the prospective employer must then
`
`
`
`
`
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`15
`agree on a “training plan” that identifies the specific ways in
`which the practical training will enhance the participant’s
`education. Id. § 214.2(f)(10)(ii)(C)(7). They must submit their
`agreed plan to the school’s designated official for review and
`approval. Id. Finally, the prospective employer must attest,
`among other things, that the employment will help the student
`attain his or her training objectives, and that the student will
`not replace a full- or part-time temporary or permanent U.S.
`worker. Id. § 214.2(f)(10)(ii)(C)(10).
`
`Once the student-trainees begin working, the school
`official continues to superintend the practical training; the
`students and their employers must periodically report back to
`the school with evaluations of the student’s progress toward the
`training goals. Id. § 214.2(f)(10)(ii)(C)(9)(i). The Designated
`School Official must, in turn, submit the training plans and
`follow-up reports to DHS. Id. § 214.2(f)(10)(ii)(C)(9)(iii).
`DHS may, at its discretion, conduct site visits to ensure that
`employers are meeting program
`requirements.
`
`Id.
`§ 214.2(f)(10)(ii)(C)(11). Recordkeeping obligations of the
`schools that are approved by DHS to enroll F-1 students
`include maintenance of records on each student reflecting
`“[w]hether the student has been certified for practical training,
`and the beginning and end dates of certification.” Id.
`§ 214.3(g)(1)(vii).
`
`D.
`
`
`Washtech challenged the 2016 OPT extension and
`underlying practical training regime as unlawful on several
`grounds. The district court dismissed the case. Wash. All. Of
`Tech. Workers v. U.S. Dep’t of Homeland Sec. (Washtech III),
`249 F. Supp. 3d 524 (D.D.C. 2017). It held that Washtech had
`standing to challenge the 2016 Rule’s extension of the
`maximum OPT period for STEM graduates, though not the
`
`
`
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`preexisting regime generally authorizing a year of post-
`graduation OPT. Id. at 535-54, 556. On the merits, the district
`court credited the government’s argument that Washtech’s
`“single, conclusory sentence” in its complaint asserting “that
`the 2016 OPT Program Rule exceeds DHS’s authority” was
`“facially implausible given the absence of any alleged facts
`supporting this conclusory legal claim.” Id. at 555. Because
`in opposing the motion to dismiss “Washtech failed to address”
`the government’s arguments in support of its statutory
`authority,
`the district court
`treated
`the government’s
`characterization as “conceded.” Id. As for the APA challenge,
`the district court observed that “Washtech contends that the
`2016 OPT Program Rule was implemented arbitrarily and
`capriciously because it ‘requires employers to provide foreign-
`guest workers OPT mentoring without requiring that such
`program be provided to American workers.’” Id. (quoting the
`complaint). The district court rejected that argument as
`similarly “threadbare” insofar as it simply ignored “the
`extensive explanations provided in the 2016 OPT Program
`Rule, including the explanations provided in the notice of
`proposed
`rulemaking on which Washtech publicly
`commented . . . .” Id. at 556.
`
`We reversed the dismissal of the statutory-authority
`challenge to the 2016 Rule, reasoning that by its nature “[a]
`claim that a regulation exceeds statutory authority” does not
`“require[] factual allegations about the defendant’s actions”
`and that Washtech’s complaint “plainly identifies the perceived
`disconnect between what the statute permits . . . and what the
`regulations do.” Wash. All. of Tech. Workers v. U.S. Dep’t of
`Homeland Sec. (Washtech IV), 892 F.3d 332, 343-44 (D.C. Cir.
`2018). Washtech could therefore “rest on its complaint” which
`“itself adequately states a plausible claim for relief,” without
`thereby conceding that its claim was insufficiently pled. Id. at
`345. We directed the district court on remand to consider
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`whether the 2016 Rule placed in issue not just the 2016 STEM
`extensions but, under the reopening doctrine, the Secretary’s
`statutory authority to implement “the entire OPT program.” Id.
`at 345-46.
`
`Although Washtech had not timely challenged the
`underlying rule itself, the district court on remand held that the
`2016 Rule restarted the clock to challenge the statutory
`authority for the OPT program as a whole along with the new,
`STEM-specific extension. Wash. All. of Tech. Workers v. U.S.
`Dep’t of Homeland Sec. (Washtech V), 395 F. Supp. 3d 1, 10-
`15 (D.D.C. 2019). The district court also permitted the
`National Association of Manufacturers, Chamber of
`Commerce, and Information Technology Industry Council to
`intervene in support of DHS to defend the OPT Rule. Id. at 15-
`21.
`
`Before us is the appeal of the district court’s order granting
`summary judgment to DHS and the Intervenors. Wash. All. of
`Tech. Workers v. U.S. Dep’t of Homeland Sec. (Washtech VI),
`518 F. Supp. 3d 448 (D.D.C. 2021). The district court held that
`Washtech had standing to challenge OPT, id. at 458-62, and
`that the program was within the Secretary’s statutory authority,
`id. at 463-75. The court reasoned that the INA’s text, together
`with decades of apparent congressional approval, sufficed to
`support the Department’s interpretation that it had authority to
`allow post-graduation OPT. Id. The court also denied
`Washtech’s motion to strike an amicus brief. Id. at 453 n.2.
`
`II. ANALYSIS
`
`A. Standard of Review
`
`We review de novo the district court’s grant of summary
`judgment, Save Jobs USA v. U.S. Dep’t of Homeland Sec., 942
`F.3d 504, 508 (D.C. Cir. 2019), including its determinations
`
`
`
`
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`about the plaintiff’s standing, Equal Rights Ctr. v. Post Props.,
`Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011), and other legal
`conclusions, Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 623
`(D.C. Cir. 2020). A movant is entitled to summary judgment
`“if the movant shows that there is no genuine dispute as to any
`material fact and the movant is entitled to judgment as a matter
`of law.” Fed. R. Civ. P. 56(a). For the reasons that follow, we
`affirm the judgment of the district court.
`
`B. Standing
`
`On the earlier appeal from dismissal of Washtech’s case
`for failure to state a claim, we relied on allegations in the
`complaint to hold that the organization had standing. Washtech
`IV, 892 F.3d at 339-42. Because Washtech at the summary
`judgment stage supplied evidence supporting the allegations
`we already held sufficient, we recognize its standing at this
`stage, too. Washtech members submitted declarations in
`opposition
`to summary
`judgment confirming
`that
`they
`currently hold STEM jobs and that they have actively sought
`and been denied other STEM positions, including with
`employers that regularly hire OPT participants. Under the legal
`standard established by binding circuit precedent, we hold that
`a reasonabl