throbber
USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 1 of 110
`Oral Argument Nov. 3, 2021 Decided Oct. 4, 2022
`No. 21-5028
`United States Court of Appeals
`for the
`
`District of Columbia CircuitWashington Alliance of Technology Workers,
`
`Appellant,
`v.
`United States Department of Homeland Security, et al.,
`Appellees.
`
`On appeal from an order entered in the
`United States District Court for the District of Columbia
`No. 1:16−cv−01170−RBW
`The Hon. Reggie Walton
`Petition for Rehearing En Banc
`
`
` On the Brief:
`John M. Miano
`Christopher J. Hajec
`November 15, 2022
`
`Immigration Reform
`Law Institute
`Attorneys for the Appellant
`25 Massachusetts Ave. N.W.
`Suite 335
`Washington D.C. 20001
`(202) 232-5590
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 2 of 110
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 3 of 110
`i
`
`Corporate DisClosure s tatement
`
`Petitioner-Appellant Washington Alliance of Technology Work-
`
`ers, Local 37083 of the Communication Workers of America,
`
`the AFL-CIO has no shareholders.
`
`CertifiCate as to parties,
`rulings, anD r elateD Cases
`
`Parties and Amici Curiae
`
`The following are all the parties and amici curiae that appeared
`
`before the District Court:
`
`1. Petitioner-Appellant is Washington Alliance of Technol-
`ogy Workers, Local 37083 of the Communications Work-
`ers of America, AFL-CIO.
`2. Appellees are the U.S. Department of Homeland Secu-
`rity; Secretary of Homeland Security; U.S. Immigration
`and Customs Enforcement; Director of U.S. Immigra-
`tion and Customs Enforcement, U.S. Citizenship and
`Immigration Services; Director of U.S. Citizenship and
`Immigration Services
`3. Intervenor-Appellees are National Association of Manu-
`facturers, Chamber of Commerce of the United States of
`America, and Information Technology Industry Council
`4. Parties appearing as amici curiae are Landmark Legal
`Foundation, Center for Immigration Studies, Congress-
`man Paul Gosar, Congressman Louie Gohmert, Con-
`gressman Mo Brooks, Congressman Madison Cawthorn,
`Congressman Joe Kent, Programmer’s Guild, American
`Engineering Association, U.S. Tech Workers, Niskanen
`Center, FWD.us, Advanced Micro Devices, Inc, Airbnb,
`Inc., Apple, Inc., Argo AI, LLC, Asana, Inc., Bates White
`LLC, Betterment Holdings, LLC, Bloomberg LP, Bound-
`less, Box, Inc., BSA | The Software Alliance, Business
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 4 of 110
`ii
`
`Roundtable, Carbon Health, Cisco, College and University
`Professional Association for Human Resources, Compete
`America, Cummins Inc., The Dow Chemical Company,
`Dropbox, Enanta Pharmaceuticals, Engine Advocacy,
`Ernst & Young LLP, Facebook, Garmin International,
`GitHub, Inc., Google LLC, Hewlett Packard Enterprise,
`HP Inc., Illinois Science & Technology Coalition, Intel
`Corporation, LinkedIn Corporation, Micron, Microsoft,
`National Immigration Forum, National Venture Capital
`Association, Netflix, Ooma, Inc., Partnership for a New
`American Economy Research Fund, PayPal, RealNet-
`works, Inc., RingCentral, Inc., salesforce.com, inc., SAP,
`Semiconductor Industry Association, Schweitzer Engi-
`neering Laboratories, Inc., Society for Human Resource
`Management, Sourcegraph, Square, Inc., State Business
`Executives, TechNet, TechNexus, Tendo Technologies,
`Texas Instruments, The Guestbook, Transformative AI
`Inc., Unshackled Ventures, Waymo LLC, Zillow Group,
`American Immigration Council, American Immigration
`Lawyers Association, Agnes Scott College, American
`University, Amherst College, Arizona State University,
`Augustana College, Avila University, Babson College,
`Bard College, Bates College, Beloit College, Bentley
`University, Boston Architectural College, Boston Gradu-
`ate School of Psychoanalysis, Boston University, Bow-
`doin College, Brandeis University, Brooklyn Law School,
`Brown University, Bryn Mawr College, Bucknell Uni-
`versity, Butler University, California Institute of Tech-
`nology, California Institute of the Arts, California State
`University, Carnegie Mellon University, Case Western
`Reserve University, Christian Brothers University, Cla-
`remont Graduate University, Clark University, Colby Col-
`lege, Colorado State University System, Colorado State
`University, Colorado State University Pueblo, Colorado
`State University Global, Columbia College, Converse
`College, Cornell University, Dartmouth College, DePaul
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 5 of 110
`iii
`
`University, DePauw University, Dominican University,
`Duke University, Eastern Connecticut State University,
`Eastern Michigan University, Elon University, Emory
`University, Fairleigh Dickinson University, Franklin
`& Marshall College, Georgetown University, Goucher
`College, Greenfield Community College, Grinnell Col-
`lege, Hamilton College, Harvard University, Haverford
`College, Hofstra University, Hollins University, Illinois
`Institute of Technology, Ithaca College, Knox College,
`Lafayette College, Loyola University Chicago, Manhat-
`tanville College, Massachusetts Institute of Technology,
`Metropolitan State University of Denver, Mount Holyoke
`College, New Jersey City University, New Jersey Insti-
`tute of Technology, New York University, Northampton
`Community College, Northeastern University, Northern
`Illinois University, Oakland University, Oberlin Col-
`lege, Oregon State University, Pace University, Palo
`Alto University, Pomona College, Portland State Univer-
`sity, Princeton University, Queens University of Char-
`lotte, Reed College, Relay GSE, Rhode Island School of
`Design, Rhodes College, Rice University, Ringling Col-
`lege of Art and Design, Rochester Institute of Technol-
`ogy, Roosevelt University, Rutgers University-Newark,
`Salt Lake Community College, Salve Regina University,
`Santa Clara University, Sarah Lawrence College, Say-
`brook University, Scripps College, Smith College, Soka
`University of America, Southern New Hampshire Uni-
`versity, St. John’s University, St. Olaf College, Stanford
`University, Stevens Institute of Technology, Stony Brook
`University, Suffolk University, Swarthmore College,
`Texas State University System, Texas Tech University
`System, The New School, The President & Fellows of
`Middlebury College, The Trustees of Columbia Univer-
`sity in the City of New York, The University of Houston
`System, The University of Texas System, Toyota Techno-
`logical Institute at Chicago, Trinity University, Trinity
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 6 of 110
`iv
`
`Washington University, UCLA, University of Arkansas,
`Fayetteville, University of California, Berkeley, Univer-
`sity of California, Davis, University of California, Irvine,
`University of California, San Diego, University of Cali-
`fornia, San Francisco, University of California, Santa
`Barbara, University of California, Santa Cruz, Uni-
`versity of California System, University of California,
`Riverside, University of Colorado System, University of
`Dayton, University of Denver, University of Illinois, Uni-
`versity of Miami, University of Michigan, University of
`New Hampshire, University of North Texas, University
`of Pennsylvania, University of Rochester, University of
`San Francisco, University of the People, University of
`Utah, University of Washington, Utah State University,
`Virginia Wesleyan University, Wake Forest University,
`Washington and Lee University, Washington University
`in St. Louis, Wellesley College, Wheaton College (Mas-
`sachusetts), Whitman College, Williams College, Yale
`University
`
`Rulings Under Review
`
`Petitioner seeks rehearing en banc of the panel decision in
`
`Wash. All. of Tech. Workers v. United States Dep’t of Homeland
`
`Sec., 50 F.4th 164 (D.C. Cir. 2022) of Oct. 4, 2022. The slip opin-
`
`ion is reproduced at the end of this document.
`
`Related Cases
`
`This Court has previously reviewed this case in Wash. All. of
`
`Tech. Workers v. U.S. Dep’t of Homeland Security, No. 17-5110,
`
`892 F.3d 332 (D.C. Cir. 2018). This case is a continuation of liti-
`
`gation that has previously been reviewed by this Court in Wash.
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 7 of 110
`v
`
`All. of Tech. Workers v. United States Dep’t of Homeland Sec.,
`
`No. 15-5239, 650 F. App’x 13 (D.C. Cir. 2016).
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 8 of 110
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 9 of 110
`vii
`
`table of Contents
`
`Corporate Disclosure Statement ............................................... i
`Certificate as to Parties, Rulings, and Related Cases .............. i
`Table of Authorities ................................................................viii
`Glossary ................................................................................... xi
`Rule 35(b)(1) Statement .............................................................1
`Background and Procedural History ....................................... 3
`Argument ...................................................................................7
`
`I. The panel decision defies the universal
`understanding of the courts that the statutory
`definitions of non-immigrant visas are not
`merely entry requirements. ............................................... 8
` II. The panel decision confers massive authority
`on an agency without an express delegation by
`Congress. ......................................................................... 12
` III. The panel decision conflicts with the
`precedent of this circuit on ratification. ...........................14
`Conclusion ................................................................................17
`Certificate of Compliance with Rule 32(a) ............................. 19
`Certificate of Service .............................................................. 20
`Panel Opinion .......................................................................... 21
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 10 of 110
`viii
`
`table of authorities
`
`Case Law:
`Akbarin v. INS, 669 F.2d 839 (1st Cir. 1982) ..................1, 10
`ABA v. FTC, 430 F.3d 457 (D.C. Cir. 2005) ....................... 12
`Am. Library Ass’n v. FCC,
`406 F.3d 689 (D.C. Cir. 2005) ...................................... 2,12
`Anwo v. Immigration & Naturalization Serv.,
`607 F.2d 435 (D.C. Cir. 1979) .......................................1, 10
`Ass’n of Am. Railroads v. ICC,
`564 F.2d 486 (D.C. Cir. 1977) ..........................................15
`Ayuda, Inc. v. Thornburgh,
`948 F.2d 742 (D.C. Cir. 1991) ........................................... 11
`Elkins v. Moreno, 435 U.S. 647 (1978) ............................. 1, 11
`Jie Fang v. Dir. United States Immigration &
`Customs Enf’t, 935 F.3d 172 (3d Cir. 2019) .............1, 9, 10
`Khano v. INS, 999 F.2d 1203 (7th Cir. 1993) ..................1, 10
`Loving v. IRS, 289, 742 F.3d 1013 (D.C. Cir. 2014) ........ 2, 12
`Olaniyan v. Dist. Dir., INS,
`796 F.2d 373 (10th Cir. 1986) .......................................1, 10
`Pub. Citizen v. U.S. Dep’t of Health & Human
`Servs., 332 F.3d 654 (D.C. Cir. 2003) .......................... 2, 15
`Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977) ...................... 9
`Texas v. United States,
`809 F.3d 134 (5th Cir. 2015) ....................................... 2, 13
`Toll v. Moreno, 458 U.S. 1 (1982) ........................................ 10
`United States v. Igbatayo,
`764 F.2d 1039 (5th Cir. 1985) .......................................1, 10
`
`Authorities upon which we chiefly rely are marked with aster-
`isks.
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 11 of 110
`ix
`
`United States v. Sheffield Bd. of Comm’rs.,
`435 U.S. 110 (1978) ...................................................... 2, 15
`Util. Air Regulatory Grp. v. EPA,
`573 U.S. 3024 (2014) ........................................................ 12
`Wash. All. of Tech Workers v. DHS,
`156 F. Supp. 3d 123 (D.D.C. 2015) .................................... 5
`Wash. All. of Tech. Workers v. DHS,
`395 F. Supp. 3d 1 (D.D.C. 2019) ........................................ 6
`*West Virginia v. EPA, 142 S. Ct. 2587 (2022) .................7, 12
`Whitman v. Am. Trucking Ass’ns,
`531 U.S. 457 (2001) ........................................................... 2
`Xu Feng v. Univ. of Del.,
`833 F. App’x 970 (3d Cir. 2021) ......................................... 9
`
`Statutes:
`8 U.S.C. § 1101(a)(15) ............................................................ 8
`8 U.S.C. § 1101(a)(15)(A) .................................................. 11
`8 U.S.C. § 1101(a)(15)(B) ..................................................14
`8 U.S.C. § 1101(a)(15)(F)(i) .......................................4, 9–11
`8 U.S.C. § 1101(a)(15)(G) .................................................. 11
`8 U.S.C. § 1101(a)(15)(H)(i)(b) ........................................... 4
`8 U.S.C. § 1103(a)(3) ............................................................ 13
`8 U.S.C. § 1184(g) .................................................................. 4
`8 U.S.C. § 1324a(h)(3) ......................................................... 13
`
`Legislative History:
`Testimony of John M. Miano before the Senate
`Judiciary Committee, Mar. 13, 2015 .............................. 16
`
` Regulations:
`8 C.F.R. § 214.2(f)(10) ......................................................3, 11
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 12 of 110
`x
`
`8 C.F.R. § 214.2(f)(10)(ii)(A)(3) ............................................. 11
`9 FAM 402.2-5(F) (2016) .....................................................14
`12 Fed. Reg. 5,355–56 (Aug. 7, 1947) ..................................15
`Pre-Completion Interval Training, F-1 Student
`Work Authorization,
`57 Fed. Reg. 31,954 (July 20, 1992) .................................. 4
`Extending Period of Optional Practical
`Training by 17-Months for F-1 nonimmigrant
`Students with STEM (Science, Technology,
`Mathematics, and Engineering) Degrees
`and Expanding Cap-Gap Relief for All F-1
`Students with Pending H-1B Petitions, 73 Fed.
`Reg. 18,944 (Apr. 8, 2008) ......................................5, 13–14
`Improving and Expanding Training
`Opportunities for F-1 Nonimmigrant Students
`With STEM Degrees and Cap-Gap Relief for
`All Eligible F-1 Students 81 Fed. Reg. 13,040
`(Mar. 11, 2016) .................................................................. 6
`
`Other Authorities:
`Neil Ruiz & Abby Budiman, Number of Foreign
`College Students Staying and Working in
`the U.S. the After Graduation Surges, Pew
`Research Center, May 18, 2018
`(available at http://assets.pewresearch.org/wp-
`content/uploads/sites/2/2018/05/10110621/Pew-
`Research-Center_Foreign-Student-Graduate-
`Workers-on-OPT_2018.05.10.pdf ............................5, 12, 14
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 13 of 110
`xi
`
`DHS
`
`OPT
`
`Washtech
`
`glossary
`
`U.S. Department of Homeland
`Security
`
`Post-completion Optional Practical
`Training
`
`Washington Alliance of Technology
`Workers
`
`Opinions and Regulations
`
`Washtech I
`
`Washtech II
`
`74 F. Supp. 3d 247 (D.D.C. 2014)
`
`156 F. Supp. 3d 123 (D.D.C. 2015),
`
`Washtech II Appeal
`
`650 Fed. App’x 13 (D.C. Cir. 2016)
`
`Washtech III
`
`249 F. Supp. 3d 524 (D.D.C. 2017)
`
`Washtech III Appeal
`
`892 F.3d 332 (D.C. Cir. 2018)
`
`Washtech IV
`
`518 F. Supp. 3d 448 (D.D.C. 2021)
`
`1992 OPT Rule
`
`2008 OPT Rule
`
`Pre-Completion Interval Training,
`F-1 Student Work Authorization,
`57 Fed. Reg. 31,954 (July 20, 1992)
`
`Extending Period of Optional
`Practical Training by 17-Months
`for F-1 nonimmigrant Students
`with STEM (Science, Technology,
`Mathematics, and Engineering)
`Degrees and Expanding Cap-Gap
`Relief for All F-1 Students with
`Pending H-1B Petitions, 73 Fed.
`Reg. 18,944 (Apr. 8, 2008)
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 14 of 110
`xii
`
`2016 OPT Rule
`
`Improving and Expanding
`Training Opportunities for F-1
`Nonimmigrant Students With
`STEM Degrees and Cap-Gap
`Relief for All Eligible F-1 Students
`81 Fed. Reg. 13,040 (Mar. 11, 2016)
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 15 of 110
`1
`
`rule 35(b)(1) s tatement
`
`Three extraordinary holdings of the panel majority confer vast
`
`new power on the Department of Homeland Security (“DHS”),
`
`and conflict with precedent of both this Court and the U.S. Su-
`
`preme Court. The panel’s opinion also conflicts with the hold-
`
`ings of other courts of appeals. For these reasons, the panel
`
`decision presents a question of exceptional importance.
`
`First, the panel’s holding that the statutory limits on non-
`
`immigrant visas are merely entry requirements, which the De-
`
`partment of Homeland Security (“DHS”) can ignore once an
`
`alien enters the country, conflicts with precedents of both this
`
`Court and the Supreme Court. E.g., Elkins v. Moreno, 435 U.S.
`
`647, 666 (1978); Anwo v. Immigration & Naturalization Serv.,
`
`607 F.2d 435, 437 (D.C. Cir. 1979). This erroneous holding is
`
`a glaring anomaly among non-controlling authority, as it con-
`
`flicts with the view of every other circuit and district court that
`
`has interpreted non-immigrant visa requirements. E.g., Akba-
`
`rin v. INS, 669 F.2d 839, 840 (1st Cir. 1982); Jie Fang v. Dir.
`
`United States Immigration & Customs Enf’t, 935 F.3d 172, 175
`
`& n.7 (3d Cir. 2019); United States v. Igbatayo, 764 F.2d 1039
`
`(5th Cir. 1985); Khano v. INS, 999 F.2d 1203, 1207 & n.2 (7th
`
`Cir. 1993); Olaniyan v. Dist. Dir., INS, 796 F.2d 373, 374 (10th
`
`Cir. 1986).
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 16 of 110
`2
`
`Second, in holding that DHS has such sweeping authority to
`
`authorize work by aliens that it can create the largest guest-
`
`worker program in the immigration system without any express
`
`authorization from Congress, the panel conflicts with West Vir-
`
`ginia v. EPA, 142 S. Ct. 2587 (2022); Am. Library Ass’n v. FCC,
`
`406 F.3d 689, 704 (D.C. Cir. 2005); Loving v. IRS, 289, 742 F.3d
`
`1013 (D.C. Cir. 2014), and decades of other precedents from both
`
`this Court and the Supreme Court holding that Congress does
`
`not confer vast regulatory power in “vague terms or ancillary
`
`provisions—it does not [] hide elephants in mouseholes,” Whit-
`
`man v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). This
`
`holding also conflicts with Texas v. United States, 809 F.3d 134
`
`(5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271
`
`(2016).
`
`Third, the panel’s holding that Congress ratified the practice
`
`of permitting aliens to engage in post-graduate employment
`
`when the regulations at the time did not explicitly authorize
`
`employment after graduation, and there was never any express
`
`congressional approval of such a policy, conflicts with prior de-
`
`cisions of both this Court and the Supreme Court about ratifi-
`
`cation. E.g., United States v. Sheffield Bd. of Comm’rs., 435 U.S.
`
`110, 135 (1978); Pub. Citizen v. U.S. Dep’t of Health & Human
`
`Servs., 332 F.3d 654, 669 (D.C. Cir. 2003).
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 17 of 110
`3
`
`For these reasons, consideration of this case by the full court
`
`is necessary to secure and maintain uniformity in the Courts’
`
`decisions.
`
`baCkgrounD anD pro CeDural h istory
`
`The question in this litigation is whether the Department of
`
`Homeland Security (“DHS”) has the authority to transform
`
`student visas into the largest guestworker program in the en-
`
`tire immigration system through regulation.1 Dissent at 18.
`
`The focus of the dispute is the post-Completion Optional Practi-
`
`cal Training Program (“OPT”). Under the OPT program, DHS
`
`permits aliens to remain in the United States in student visa
`
`status for up to 42 months after graduation to work or be un-
`
`employed. 8 C.F.R. § 214.2(f)(10). Appellant Washington Alli-
`
`ance of Technology Workers (“Washtech”) challenged the law-
`
`fulness of OPT, alleging (1) that DHS lacks the authority to
`
`allow aliens to remain in student visa status after they have
`
`completed their course of study (graduated) and (2) DHS lacks
`
`the authority to permit such non-students to work on student
`
`visas. Op. Br. at 16.
`
`Two visas play a central role in this litigation. The H-1B
`
`visa is the statutory means for admitting college-educated la-
`
`1 Because the litigation in this matter has spanned nearly
`fifteen years and five appeals, this history only summarizes
`key events. See Opening Brief for a full history.
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 18 of 110
`4
`
`bor. 8 U.S.C. § 1101(a)(15)(H)(i)(b). To protect American work-
`
`ers, there are annual quotas on the number of H-1B visas.
`
`8 U.S.C. § 1184(g). The F-1 visa is for bona fide students solely
`
`pursuing a course of study at an academic institution. 8 U.S.C.
`
`§ 1101(a)(15)(F)(i).
`
`In 1992, the Immigration and Naturalization Service created
`
`the OPT Program through regulations published without no-
`
`tice and comment. Pre-Completion Interval Training, F-1 Stu-
`
`dent Work Authorization, 57 Fed. Reg. 31,954 (July 20, 1992)
`
`(“1992 OPT Rule”). The OPT program allowed aliens on stu-
`
`dent visas to remain and work in the United States for a year
`
`after completing their course of study (after graduation). Id. The
`
`relatively short duration kept OPT innocuous. In 2007, Micro-
`
`soft proposed to the DHS secretary at a dinner party that OPT
`
`should be used as a means to circumvent the quotas on H-1B
`
`visas that protect American workers. 2008 OPT Rule, A.R.
`
`at 120. H-1B and OPT apply to the same class of college-edu-
`
`cated labor. Microsoft’s plan was to expand the duration of OPT
`
`to 29 months so that it would be long enough to serve as a sub-
`
`stitute for H-1B visas. 2008 OPT Rule, A.R. at 121. DHS then
`
`worked in total secrecy with industry and academic lobbyists to
`
`craft regulations to implement Microsoft’s plan. 2008 OPT Rule,
`
`A.R. at 124–34. The first time DHS made the public aware it
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 19 of 110
`5
`
`was considering such regulations was when it published them
`
`without notice and comment in 2008. Extending Period of Op-
`
`tional Practical Training by 17-Months for F-1 nonimmigrant
`
`Students with STEM (Science, Technology, Mathematics, and
`
`Engineering) Degrees and Expanding Cap-Gap Relief for All
`
`F-1 Students with Pending H-1B Petitions, 73 Fed. Reg. 18,944
`
`(Apr. 8, 2008) (“2008 OPT Rule”). The entire justification for
`
`the 2008 OPT Rule was to provide labor to industry by cir-
`
`cumventing the H-1B quotas. Id. The longer duration of work
`
`and the lack of quotas caused the OPT program to become the
`
`largest guestworker program in the immigration system. Neil
`
`Ruiz & Abby Budiman, Number of Foreign College Students
`
`Staying and Working in the U.S. After Graduation Surges, Pew
`
`Research Center, May 18, 2018, p. 7.
`
`In 2014, Washtech brought the second challenge to the OPT
`
`program. In 2015, the district court held that the OPT expan-
`
`sion had been made unlawfully without notice and comment
`
`but held the rule was within DHS’s authority and allowed the
`
`rule to remain in place for DHS to do after-the-fact notice and
`
`comment. Wash. All. of Tech Workers v. DHS, 156 F. Supp. 3d
`
`123 (D.D.C. 2015) (“Washtech II”). The new rule was published
`
`in 2016. It extended the work period to 36 months and replaced
`
`the need-for-labor justification with a newly invented educa-
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 20 of 110
`6
`
`tional justification. Improving and Expanding Training Op-
`
`portunities for F-1 Nonimmigrant Students With STEM De-
`
`grees and Cap-Gap Relief for All Eligible F-1 Students 81 Fed.
`
`Reg. 13,040 (Mar. 11, 2016) (“2016 OPT Rule”).
`
`After its appeal was dismissed as moot due to the new rule,
`
`Washtech brought the third challenge to OPT in 2016. Washtech
`
`alleged that the OPT program exceeded DHS authority because
`
`it conflicted with the statutory terms for student visas. The
`
`issues raised included (1) DHS lacked the authority to allow
`
`aliens to remain in the U.S. on student visas after graduation
`
`when they were no longer students because the statute limits
`
`student visas to those pursuing a course of study at an aca-
`
`demic institution (2) DHS lacked the authority to allow such
`
`non-students to be employed. On summary judgment, the dis-
`
`trict court adopted the novel interpretation that the visa defi-
`
`nition was merely an entry requirement that DHS was free to
`
`ignore once an alien arrived in the country, and found that the
`
`lack of a prohibition on post-graduation employment meant that
`
`DHS was permitted to grant work. Wash. All. of Tech. Workers
`
`v. DHS, 395 F. Supp. 3d 1 (D.D.C. 2019) (“Washtech IV”).
`
`Washtech appealed to this Court. A divided panel expanded
`
`the district court’s holdings so that non-immigrant visas in
`
`general only specify entry requirements that DHS is free to
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 21 of 110
`7
`
`disregard once an alien enters the country. Slip Op. at 7, 51.
`
`The panel also held DHS was free to extend employment to any
`
`class of non-immigrants as long as the employment was reason-
`
`ably related to the visa. Slip Op. at 46–40. The panel futher
`
`held that the OPT program had been ratified by Congress. Slip
`
`Op. at 31–36.
`
`The dissent, however, rejected the entry-requirement-only in-
`
`terpretation of the student visa statute as a “tortured interpre-
`
`tation” amounting to “verbicide.” Dissent at 13, 16–20. The dis-
`
`sent concluded that the student visa statute “cannot reasonably
`
`be read to include post-completion OPT,” id. at 13, and that the
`
`OPT program was not within DHS’s authority, id. at 20. Re-
`
`garding DHS’s claim of unlimited authority to permit employ-
`
`ment through regulation, the dissent called for a remand to the
`
`district court. Id. at 20–23. The dissent also called for remand
`
`in light of West Virginia v. EPA. Id. at 24.
`
`argument
`
`The panel decision fundamentally restructures the entire sys-
`
`tem of non-immigrant visas, the largest component of the im-
`
`migration system. Until now, courts universally interpreted
`
`statutory non-immigrant visa definitions as applying to an
`
`alien’s entire stay in the United States. Yet the panel’s opinion
`
`transforms the statutory restrictions on non-immigrant visas
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 22 of 110
`8
`
`into mere entry requirements, thus transferring to DHS full
`
`authority to set the post-entry terms of a non-immigrant’s stay
`
`in the United States through regulations, unfettered by these
`
`or any other statutory requirements. The panel’s opinion con-
`
`flicts with previous interpretation of the non-immigrant visa
`
`statutes by the Supreme Court, this court, and every other cir-
`
`cuit and district court that has applied these statutes. Because
`
`of the scope of the panel’s decision and its multitude of conflicts
`
`with precedent, it should be vacated.
`
`i. the panel decision defies the universal
`understanding of the courts that the
`statutory definitions of non-immigrant
`visas are not merely entry requirements.
`
`Undeniably, the OPT program is at least prima facie in con-
`
`flict with the statutory terms of the student visa. See Dissent
`
`at 10. To reach its outcome that OPT was within DHS author-
`
`ity, the panel had to get around that conflict. It did so by hold-
`
`ing the statute only applies at entry. Slip Op. at 7. This ap-
`
`proach expanded the impact of the panel’s opinion far beyond
`
`just student visas. If the full court fails to intervene, the panel
`
`decision establishes the extraordinary precedent that the statu-
`
`tory terms of non-immigrant visas (8 U.S.C. § 1101(a)(15)) only
`
`define entry requirements and that the requirements for main-
`
`taining status once an alien enters the country are defined en-
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 23 of 110
`9
`
`tirely through regulations that can disregard the statutory re-
`
`quirements. Slip Op. at 7, 51.
`
`The only judicial authority the panel cites in support of this
`
`radical view is Rogers v. Larson, 563 F.2d 617, 622–23 (3d Cir.
`
`1977). Slip Op. at 7. There, the Third Circuit observed that the
`
`specific visa “provision” in question (which no longer exists) was
`
`“silent as to any controls to which these aliens will be subject af-
`
`ter they arrive in this country.” Id. The Third Circuit then de-
`
`ferred to agency regulations. Id. The panel interprets Rogers as
`
`holding that statutory visa definitions only apply at entry. Slip
`
`Op. at 7. But no other court has interpreted Rogers that way. Not
`
`even the Third Circuit has adopted the panel’s interpretation of
`
`Rogers. E.g., Graham v. INS, 998 F.2d 194, 196 (3d Cir. 1993)
`
`(holding that statutory terms of various non-immigrant visas
`
`must be complied with after entry). Instead, the Third Circuit
`
`understands that the statutory requirements for student visas
`
`apply after admission. E.g., Jie Fang v. Dir. United States Im-
`
`migration & Customs Enf’t, 935 F.3d 172, 175 & n.7 (3d Cir.
`
`2019) (noting that under 8 U.S.C. § 1101(a)(15)(F)(i) aliens may
`
`“reside in the United States while enrolled at Government-ap-
`
`proved schools”); Xu Feng v. Univ. of Del., 833 F. App’x 970, 971
`
`(3d Cir. 2021) (holding that when a university imposed a “full
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 24 of 110
`10
`
`course of study” requirement on a foreign student, it was “merely
`
`abiding by federal law” (citing 8 U.S.C. § 1101(a)(15)(F)(i)).
`
`As the dissent noted, Dissent at 10–11, the panel’s view con-
`
`flicts with precedent in this circuit applying a statutory restric-
`
`tion on student visas after the alien had been admitted. Anwo v.
`
`Immigration & Naturalization Serv., 607 F.2d 435, 437 (D.C. Cir.
`
`1979) (applying the visa terms of § 1101(a)(15)(F)(i) to an alien af-
`
`ter his entry). Indeed, the panel’s interpretation is contrary to every
`
`other court’s interpretation of the student visa statute. E.g., Toll v.
`
`Moreno, 458 U.S. 1, 14 n.20 (1982) (noting that, in § 1101(a)(15)(F),
`
`“Congress has precluded the covered alien from establishing do-
`
`micile in the United States”) (emphasis added); Akbarin v. Immi-
`
`gration & Naturalization Serv., 669 F.2d 839, 840 (1st Cir. 1982)
`
`(recognizing that § 1101(a)(15)(F) set forth requirements for main-
`
`taining student visa status); Jie Fang, supra; United States v. Ig-
`
`batayo, 764 F.2d 1039, 1040 (5th Cir. 1985) (holding that, under
`
`§ 1101(a)(15)(F), an alien lost student visa status and legal pres-
`
`ence when he stopped pursuing a full course of study); Khano v.
`
`INS, 999 F.2d 1203, 1207 & n.2 (7th Cir. 1993) holding that an
`
`alien was deportable for failing to maintain the full-course-of-
`
`study condition of § 1101(a)(15)(F)); Olaniyan v. Dist. Dir., INS,
`
`796 F.2d 373, 374 (10th Cir. 1986) (aliens were deportable for fail-
`
`ing to maintain the conditions of § 1101(a)(15)(F)).
`
`

`

`USCA Case #21-5028 Document #1973661 Filed: 11/15/2022 Page 25 of 110
`11
`
`Furthermore, the panel’s opinion expanded on the district
`
`court’s conclusion that the student visa statute merely specifies
`
`entry requirements by holding that non-immigrant visa defini-
`
`tions in general are mere entry requirements. Slip Op. at 7. The
`
`gamut of conflicting opinions balloons when other non-immi-
`
`grant visas are considered. E.g., Elkins v. Moreno, 435 U.S. 647,
`
`666 (1978) (holding that Congress intended to make aliens who,
`
`after entry, failed to maintain the statutory conditions of nu-
`
`merous visas deportable); Ayuda, Inc. v. Thornburgh, 948 F.2d
`
`742, 759 (D.C. Cir. 1991) (recognizing the statutory definitions
`
`of the A and G non-immigrant visas (8 U.S.C. § 1101(a)(15)(A) &
`
`(G)) “restrict the type of work their holders may perform while
`
`in this country.”), vacated on other grounds, 509 U.S. 43 (1993);
`
`Graham, supra.
`
`Worse yet, under the panel’s opinion, the student visa statute
`
`does not even function as an entry requirement. The student visa
`
`statute limits entry to those with the sole purpose of pursuing
`
`a course of study at an academic in

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