`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ORAL ARGUMENT NOT YET SCHEDULED
`
`No. 21-5028
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Washington Alliance of Technology Workers (Washtech),
`
`
`
`
`
`
`
`
`
`Appellant,
`
`v.
`
`U.S. Department of Homeland Security, et al.,
`
`
`
`
`
`
`
`
`
`
`
`Appellees.
`
`
`
`
`
`
`On Petition for Review of an
`Order of the U.S. District Court for the District of Columbia
`
`
`
`MEMORANDUM BY AMICI CURIAE LANDMARK LEGAL
`FOUNDATION, CENTER FOR IMMIGRATION STUDIES,
`CONGRESSMAN PAUL GOSAR, CONGRESSMAN LOUIE GOHMERT,
`CONGRESSMAN MO BROOKS, CONGRESSMAN MADISON
`CAWTHORN, JOE KENT, PROGRAMMER’S GUILD, AMERICAN
`ENGINEERING ASSOCIATION, INC. AND U.S. TECH WORKERS IN
`SUPPORT OF APPELLANT
`
`
`
`
`
`JULIE AXELROD
`Center for Immigration Studies
`1629 K Street N.W., Suite 600
`Washington, DC 20006
`
`
`Phone: (202) 466-8185
`
`
`Fax: (202) 466-8076
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`May 12, 2012
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`RICHARD P. HUTCHISON
`MICHAEL J. O’NEILL
`MATTHEW C. Forys
`Landmark Legal Foundation
`3100 Broadway, Suite 1210
`Kansas City, MO 64111
`(816) 931-5559
`pete.hutch@landmarklegal.org
`Counsel for Amici Curiae
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 2 of 32
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
`PURSUANT TO CIRCUIT RULE 28(a)(1)
`
`Pursuant to D.C. Circuit Rule 28(a)(1), counsel certifies as follows:
`
`A. Parties and Amici. All parties and intervenors appearing in this Court
`
`appear in the Brief for Appellant.
`
`B. Ruling Under Review. An accurate reference to the order at issue
`
`appears in the Brief for Appellant
`
`C. Related Cases. An accurate statement about related cases appears in the
`
`Brief for Appellant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/_________________
`Richard P. Hutchison
`Michael J. O’Neill
`Matthew C. Forys
`Landmark Legal Foundation
`3100 Broadway, Suite 1210
`Kansas City, MO 64111
`(816) 931-5559
`pete.hutch@landmarklegal.org
`
`/s/____________________
`Julie Axelrod
`Center for Immigration Studies
`1629 K Street N.W., Suite 600
`Washington, DC 20006
`(202) 466-8185
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ii
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 3 of 32
`
`
`TABLE OF CONTENTS
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF PARTIES, RULINGS, AND RELATED
`CASES PURSUANT TO CIRCUIT RULE 28(a)(1)……………………. ii
`
`
`
`
`
`
`
`Page
`
`
`TABLE OF AUTHORITIES……………………………………………………. v
`
`STATEMENT REGARDING CONSENT TO FILE AND
`SEPARATE BRIEFING ………………………………………………… viii
`
`
`CORPORATE DISCLOSURE STATEMENT…………………………………. viii
`
`GLOSSARY ……………………………………………………………………. ix
`
`STATUTES AND REGULATIONS……………………………………………. 1
`
`INTEREST OF THE AMICUS CURIAE……………………………………….. 1
`
`INTRODUCTION AND SUMMARY OF ARGUMENT………………………. 5
`
`ARGUMENT…………………………………………………………………….. 9
`
`
`A. The clear meanings of “bona fide student” and “solely pursuing
`a course of study” forecloses Chevron deference……………………… 9
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`B. The INA’s silence on whether DHS may establish new categories
`of aliens eligible for employment in the United States does not
`equate to an “ambiguity” and thus trigger Chevron deference……… 13
`
`C. The Court should not be compelled by Chevron to defer to DHS’s
`interpretation…………………………………………………………. 15
`
`D. Congress – not DHS – should make laws affecting the status of F-1
`students……………………………………………………………… 19
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 4 of 32
`
`
`
`
`Page
`
`
`
`
`CERTIFICATE OF COMPLIANCE WITH WORD LENGTH AND
`
`
`TYPEFACE REQUIREMENTS..……………………………… 22
`
`CERTIFICATE OF SERVICE………………………………………………. 23
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iv
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 5 of 32
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Page
`
`
`
`
`Cases
`
`
`
`Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078
`(D.C. Cir. 2017)………………………………………………… 14
`
`
`Baldwin v. United States, 140 S. Ct. 690 (2020)………………… 15, 16, 17
`
`City of Arlington v. FCC, 569 U.S. 290 (2013)……………………… 13, 18
`
`Chevron U.S.A., Inc. v. Nat. Res. Def. Council Inc, 467 U.S. 837
`
`(1984)………………………………………………………… *
`
`Dep’t of Transportation v. Association of Am. Railroads, 575 U.S
`
`43 (2015)………………………………………………………. 17
`
`Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016)…………17, 18
`
`La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986)……………….. 13, 18
`
`MCI Telecommunications Corp. v. American Telephone and
`
`Telegraphy Co., 512 U.S. 218 (1994)………………………….. 14, 15
`
`Michigan v. EPA, 576 U.S. 743 (2015)………………………….. 10, 11, 16
`
`Miller v. Christopher, 96 F.3d 1467 (D.C. Cir. 1996)………………… 7
`
`Nat’l Cable & Telecomms. Assn v. Brand X Internet Servs., 545
`U.S. 967 (2005)………………………………………………… 16
`
`Perez v. Mortgage Bankers Assn., 575 U.S. 92 (2015)……………….. 15
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Ry. Lab. Exec. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655
`(D.C. Cir. 1994)………………………………………………… 14
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`v
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 6 of 32
`
`
`
`
`
`
`Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)………………………… 15
`
`Talk Am. Inc. v. Mich. Bell Tell. Co., 564 U.S. 50 (2011)……………. 18
`
`Util. Air Regul. Group v. EPA, 573 U.S. 302 (2014)…………………. 10
`
`Page
`
`Wash. All. of Tech. Workers v. U.S. Dept. of Homeland Security,
`
`2021 U.S. Dist. LEXIS 21587 (D.D.C. 2021).………………… 6, 11
`
`U.S. Const. art. III, § 1…………………………………………………. 5
`
`
`
`
`
`U.S. Constitutional Provisions
`
`
`
`Statutes and Regulations
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8 U.S.C § 1101(a)(15)(F)(i)……………………………………………. 15
`
`8 U.S.C. § 1184(g)……………………………………………………… 7
`
`8 C.F.R. 214.2(f)(5)(ii)…………………………………………………. 12
`
`8 C.F.R. 214.2(f)(5)(vi)…………………………………………………. 7
`
`8 C.F.R. 214.2(f)(6)…………………………………………………….. 12
`
`8 C.F.R. 214.2(f)(6)(A)………………………………………………… 12
`
`8 C.F.R. 214.2(f)(6)(B)………………………………………………… 12
`
`8 C.F.R. § 214.2(f)(10)…………………………………………………. 6
`
`8 C.F.R. § 214.2(f)(10)(ii)(A)(3)…………………………………… 10, 12
`
`8 C.F.R. § 214.2(f)(10)(ii)(C)…………………………………………… 6
`
`8 C.F.R. § 214.2(f)(10)(ii)(E)………………………………………… 7, 10
`
`
`
`
`
`vi
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 7 of 32
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`American Competitiveness in the Twenty-first Century Act of 2000,
`Pub. L. No. 106-313, § 102, 114 Stat. 1251 (2000)………………. 20
`
`
`
`
`
`
`
`
`
`
`
`Page
`
`
`
`
`
`Consolidated Appropriations Act, 2005, Pub. L. No 108-447,
`§ 421, 118 Stat. 2809, 3356 (2004)……………………………….. 20
`
`
`
`
`
`
`
`
`Omnibus Consolidated and Emergency Supplemental Appropriations
`Act, 1999, Pub. L. No. 105-277, § 411, 112 Stat. 2681,
`2681-642(1998)…………………………………………………….20
`
`
`Other Authorities
`
`
`
`
`
`H.R. 3564 Fairness for High-Skilled Americans Act……………………. 2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`vii
`
`
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 8 of 32
`
`
`STATEMENT REGARDING CONSENT TO FILE AND SEPARATE
`BREIFING
`
`All parties have consented to the filing of this brief.1 Landmark filed its
`
`
`
`notice of its intent to participate in this case as amicus curiae on April 19, 2021.
`
`Pursuant to Circuit Rule 29(d), Amici certify that a separate brief is
`
`necessary to provide the perspective of constitutional organizations that believe
`
`separation of powers is necessary to ensure preservation of liberty. A separate
`
`brief is necessary to provide the perspective of members of Congress who enact
`
`laws affecting alien workers. This brief also provides the perspective of
`
`individuals and trade organizations who are affected by the regulation in question.
`
`
`
`COPORATE DISCLOSURE STATEMENT
`
`
`
`
`Under Fed. R. App. P. 26.1 and D.C. Cir. Rules 27(a)(4) and 28(a)(1)(A),
`
`Amici Curiae submit the following corporate disclosure statement:
`
`
`
` Amici Curiae are individuals, members of Congress or non-profit
`
`organizations. They have no parent corporations and do not issue stock.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Richard P. Hutchison
`
`
`
`
`
`
`
`
`
`1 No counsel for a party authored this brief in whole or in part, and no person other than amici curiae, its members,
`or its counsel contributed money that was intended to fund the preparation or submission of this brief. See Fed. R.
`App. P. 29(c)(5).
`
`
`
`viii
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 9 of 32
`
`
`
`
`
`AEA
`
`CIS
`
`DHS
`
`FICA
`
`INA
`
`Landmark
`
`OPT
`
`STEM
`
`Washtech
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`GLOSSARY
`
`American Engineering Association
`
`Center for Immigration Studies
`
` U.S. Department of Homeland Security
`
`Federal Insurance Contribution Act
`
`Immigration Nationality Act
`
`Landmark Legal Foundation
`
`Post-completion Optional Practical Training
`
`Science/Technology/Engineering/ Mathematics
`
`Washington Alliance of Technology Workers
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ix
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 10 of 32
`
`
`STATUTES AND REGULATIONS
`
`Pertinent materials are contained in Appellant’s brief.
`
`
`
`
`
`
`INTEREST OF AMICUS CURIAE
`
`Landmark Legal Foundation (Landmark) is a national public interest law
`
`firm committed to preserving the principles of limited government, separation of
`
`powers, federalism, advancing an originalist approach to the Constitution, and
`
`defending individual rights and responsibilities.
`
`
`
`The Center for Immigration Studies (CIS) is a 34-year-old, independent,
`
`nonprofit, nonpartisan research organization that has been recognized by the
`
`Internal Revenue Service as a tax-exempt educational organization. The mission of
`
`CIS is to provide to immigration policymakers, the academic community, news
`
`media and concerned citizens with reliable information about the social, economic,
`
`environmental, security and fiscal consequences of all kinds of international
`
`migration, temporary and permanent, legal and illegal. On more than 130
`
`occasions, CIS has been invited by Congressional Committees to provide expert
`
`testimony on a wide variety of immigration policy matters, including those
`
`pertaining to foreign worker programs.
`
`CIS has a continuing interest preventing the labor markets from being
`
`flooded with workers, displacing U.S. workers, needlessly loosening the labor
`
`
`
`1
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 11 of 32
`
`
`supply-demand equation, and lowering wages for legal, permanent U.S. residents,
`
`which the outcome of this case will influence.
`
`Congressman Paul A. Gosar represents Arizona’s fourth congressional
`
`district. Congressman Gosar is a constitutional conservative and the sponsor of
`
`H.R. 3564 Fairness for High-Skilled Americans Act which would eliminate the
`
`unauthorized Optional Practical Training (OPT) Program:
`
`Section 274A(h) of the Immigration and Nationality Act (8 U.S.C.
`1324a) is amended by adding at the end the following: “(4)
`EMPLOYMENT AUTHORIZATION FOR ALIENS NO LONGER
`ENGAGED IN FULL-TIME STUDY IN THE UNITED STATES.—
`Notwithstanding any other provision of law, no alien present in the
`United States as a nonimmigrant under section 101(a)(15)(F)(i) may
`be provided employment authorization in the United States pursuant
`to the Optional Practical Training Program, or any such successor
`program, without an express Act of Congress authorizing such a
`program.”
`
`Congressmen Louie Gohmert, Mo Brooks and Madison Cawthorn represent
`
`Texas’s First Congressional district, Alabama’s Fifth Congressional district and
`
`North Carolina’s Eleventh Congressional district respectively. Congressmen
`
`Gohmert and Brooks are cosponsors of H.R. 3564. These individuals have an
`
`interest in asserting the proper process for work authorization for aliens, and a
`
`significant interest in protecting American workers, including his own constituents,
`
`and lawful permanent residents from employment discrimination, which has
`
`become rampant due to the uncapped expansion of the OPT Program. OPT
`
`
`
`2
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 12 of 32
`
`
`recipients and their employers are excused from paying payroll taxes, which
`
`incentivizes employers to discriminate against U.S. citizens when hiring.
`
`Joseph Kent is a candidate for Congress for Washington’s Third
`
`Congressional district. Mr. Kent believes the political leadership in this country
`
`shut down manufacturing and energy jobs with bad trade deals and environmental
`
`regulations, and when workers asked how they were supposed to support their
`
`families, politicians like President Obama told them to “learn to code.” And when
`
`they did learn new programming and IT skills, our globalist corporations bought
`
`and paid for politicians who opened the flood gates to foreign high-skill low-wage
`
`labor to take those jobs away. Mr. Kent believes that by illegally expanding the
`
`OPT program, DHS is complicit in driving down the wages of American tech
`
`workers and urges the courts to recognize this and to take action to end the Biden
`
`DHS’s betrayal of American tech workers.
`
`The Programmers Guild advances the interests of technical and professional
`
`workers in information technology (IT) fields. Members of the Programmers
`
`Guild have witnessed first-hand the impact of OPT and related temp worker visas
`
`on family, friends, and qualified US worker job applicants over the past two
`
`decades. The Programmers Guild has proposed reforms that would better protect
`
`US workers. OPT displaces new graduates from getting a good first job upon
`
`
`
`3
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 13 of 32
`
`
`graduation and provides a tool for employers to avoid hiring older workers for their
`
`entry-level positions.
`
`American Engineering Association (AEA) is dedicated to the enhancement
`
`of the engineering profession and U.S. engineering capabilities. AEA is a
`
`nonprofit association with members in virtually every high-tech center and
`
`industry in the United States. AEA members are from all engineering disciplines
`
`including aerospace, chemical, civil, computer, electrical and electronics,
`
`industrial, IT, mechanical, power and software to list a few. AEA is the only
`
`engineering association dedicated exclusively to professional needs and concerns
`
`of the U.S. Engineering Community.
`
`Founded in 2018, U.S. Tech Workers provides inspiration, leadership and
`
`resources to displaced tech workers every single day. Our goal is to combat the
`
`impacts of outsourcing American jobs. We do this by uncovering relevant facts
`
`related to what fuels the offshore pipeline of workers. Then we use this
`
`information to influence policy reform. We educate the general public and elected
`
`officials about how the continuous flow of workers from abroad impacts American
`
`jobs, the economy and national security. As well, we promote policies that favor
`
`investing in our country and our workforce.
`
`
`
`
`
`
`
`
`4
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 14 of 32
`
`
`INTRODUCTION AND SUMMARY OF ARGUMENT
`
`
`
`
`When agencies violate constitutional separation of powers principles, the
`
`judiciary should exercise their Article III authority by engaging in a substantive
`
`review of agency actions. U.S. Const. art. III, § 1. Deference should be afforded
`
`only when congressional delegation of authority is clear and agency actions should
`
`be found improper when they exceed the authority conferred by Congress. Silence
`
`should not be interpreted as ambiguity and should not automatically trigger judicial
`
`deference.
`
`
`
`This case is about whether the Department of Homeland Security (DHS) can
`
`circumvent the limits the Immigration Nationality Act (INA) places on alien
`
`workers by improperly interpreting the terms “bona fide student” and “solely
`
`pursuing a course of study” to establish and operate a program affecting hundreds
`
`of thousands of workers. Under the INA and to qualify as eligible to enter and
`
`remain in the country under the F-1 visa program, aliens must meet certain
`
`requirements. First the alien must have no intention of abandoning their home
`
`country. Next, the individual must be a “bona fide student” that is “qualified to
`
`pursue a full course of study.” And third, the individual must seek “to enter the
`
`United States temporarily and solely for the purpose of pursuing such as course of
`
`study… …at an established college, university, seminary…” 8 U.S.C.
`
`§1101(a)(15)(F)(i).
`
`
`
`5
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 15 of 32
`
`
`
`
`The statute does not define “bona fide student.” It does not define “solely
`
`pursuing a course of study.” Nor does it authorize DHS to create new categories of
`
`aliens who are eligible to work and remain in the United States. Whether DHS has
`
`the authority to unilaterally broaden theses terms meaning beyond what is
`
`reasonable to create new classes of legal aliens lies at the heart of this dispute. The
`
`lower court ruled that the Supreme Court’s ruling in Chevron U.S.A., Inc. v. Nat.
`
`Res. Def. Council Inc. obligates it to defer to DHS’s interpretation of these terms.
`
`It also concluded that Chevron required deference to DHS’s assertions of authority
`
`and therefore compelled it to allow DHS to operate a program that allows a new
`
`class of aliens to remain in the country. Wash. All. of Tech. Workers v. U.S. Dept.
`
`of Homeland Sec., 2021 U.S. Dist. LEXIS 21587, *34 (D.D.C. 2021).
`
`DHS considers aliens who have completed their studies at colleges and
`
`universities and participate in the Post-Completion Optional Practical Training
`
`program (“OPT Program”) as “bona fide students” who are “solely pursuing a
`
`course of study.” Under the OPT Program, individuals who have graduated from
`
`college or university with any type of degree can work for up to one year after
`
`graduation. 8 C.F.R. § 214.2(f)(10). Those aliens with degrees designated as
`
`STEM (science, technology, engineering, or math) are therefore authorized to
`
`remain in the United States for up to another 24 months (after they complete their
`
`studies). 8 C.F.R. § 214.2(f)(10)(ii)(C). What’s more, aliens can also remain in
`
`
`
`6
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 16 of 32
`
`
`the country while seeking employment or when waiting for their application for an
`
`H1-B visa to process. 8 C.F.R. §§ 214.2(f)(10)(ii)(E), 214.2(f)(5)(vi). All told,
`
`some of these individuals can remain in the United States for up to three years
`
`post-graduation.
`
`
`
`DHS’s OPT Program functions as an end run around clear limits Congress
`
`has set on the number of technology workers admissible through the H1-B visa
`
`program. 8 U.S.C. § 1184(g). It creates a new class aliens who are eligible for
`
`employment within the United States. Congress has “plenary authority to
`
`prescribe rules for the admission and exclusion of aliens” and specifically sets the
`
`number of H1-B visa holders. Miller v. Christopher, 96 F.3d 1467, 1470 (D.C.
`
`Cir. 1996). In other words, Congress has spoken on the issue of numbers of these
`
`types of guestworkers allowed in the United States and Congress can determine
`
`who enters and remains in the country. DHS, an administrative agency with no
`
`political accountability, however, has managed to circumvent these limits through
`
`creative and improper interpretation of terminology from the section of the INA
`
`involving the F-1 visa program. DHS’s interpretation allows hundreds of
`
`thousands of aliens to remain in the country with no connection to a university or
`
`institute of higher learning. These aliens are no longer “bona fide students” nor are
`
`they “solely pursuing a course of study.” Yet they remain present because DHS
`
`has substituted its own policy preference for that of Congress.
`
`
`
`
`
`7
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 17 of 32
`
`
`
`
`Unilaterally expanding the number of individuals permitted to remain in the
`
`United States post-graduation and in contravention to the clear language of the
`
`statute, runs contrary to congressional intent. Congress has expressly set the
`
`number of guestworkers permitted in the United States. And DHS’s OPT program
`
`expands the number not by dozens or hundreds but by hundreds of thousands.
`
`Amicus Center for Immigration Studies, through Freedom of Information Act
`
`Requests, has estimated the approximate number of OPT holders at a given time to
`
`be as high as 300,000 in previous years. Congress has designated the classes of
`
`aliens who may enter and work in the United States and provided clear language as
`
`to who is to be permitted to remain in the country under the F-1 visa program.
`
`Furthermore, aliens who are eligible to work under other visa programs are
`
`not only regulated by DHS. INA requires that the hiring of a foreign worker will
`
`not adversely affect the wages and working conditions of U.S. workers comparably
`
`employed. The Department of Labor is the agency responsible for compliance with
`
`this part of the law, and it does so through regulations requiring that the wages
`
`offered to a foreign worker must be the prevailing wage rate for the occupational
`
`classification in the area of employment. The Department of Labor is unable to do
`
`this with OPT. Its problems in protecting American workers are even further
`
`exacerbated by the fact that the OPT program contains within it a subsidy to
`
`employers who hire OPT holders. The Internal Revenue Service does not collect
`
`
`
`8
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 18 of 32
`
`
`any payroll taxes from OPT workers for “students.” Employers who do not
`
`therefore pay either the employee or the employer portion of the tax required by
`
`the Federal Insurance Contribution Act (FICA), get a direct subsidy at the expense
`
`of the Social Security, Medicare, and Federal Unemployment Trust Funds. In
`
`addition, the Department of Commerce has no way of conducting background
`
`investigations as it must do under the law, for aliens hired for sensitive positions.
`
`By adopting an interpretation that is clearly at odds with the law, DHS has created
`
`a host of other problems for other agencies’ fulfillment of their own statutory
`
`obligations.
`
`DHS’s interpretation of operative terms in the INA, therefore, should not be
`
`entitled to deference under Chevron. Instead, the lower court should have
`
`undertaken an analysis of whether DHS’s actions are permissible, rejected DHS’s
`
`arguments and ruled the current operation of the OPT program (as it applies to
`
`individuals no longer enrolled or attending institutions of higher learning) conflicts
`
`with the law.
`
`
`
`Amici curiae, therefore, asks this Court to reverse the findings of the lower
`
`court.
`
`
`
`
`
`
`
`
`
`ARGUMENT
`
`A. The clear meanings of “bona fide student” and “solely pursuing a
`course of study” forecloses Chevron deference.
`
`9
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 19 of 32
`
`
`DHS circumvents the clear numeric limitations placed on guestworkers by
`
`Congress through the H1-B visa program by using the F-1 visa programs as a
`
`supplement for guest workers. It does this by interpreting the clear statutory terms
`
`“bona fide student” and “solely pursuing a course of study” in the broadest
`
`possible sense. Under DHS’s interpretation, aliens who have graduated from
`
`college, are working, or are unemployed, are still considered students and are
`
`legally permitted to remain in the country. 8 C.F.R. §§ 214 (f)(10)(ii)(A)(3) & (E).
`
`In fact, they are no longer students nor are they “solely pursuing a course of
`
`study.”
`
`The clear meaning of these terms forecloses Chevron deference. Under the
`
`Chevron framework, a court first looks to whether the text of the operative statute
`
`is ambiguous. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842-43
`
`(1984). Courts are to uphold an agency’s “reasonable resolution of an ambiguity
`
`in a statute the agency administers.” Michigan v. EPA, 576 U.S. 743, 751(2015)
`
`(citing Chevron at 842-43). There are recognized limits to this deference as
`
`“agencies must operate within the bounds of reasonable interpretation.” Util. Air
`
`Regul. Group v. EPA, 573 U.S. 302, 321 (2014). Additionally, while “Chevron
`
`allows agencies to choose among competing reasonable interpretations of a statue;
`
`it does not license interpretative gerrymanders under which an agency keeps parts
`
`
`
`10
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 20 of 32
`
`
`of a statutory context it likes while throwing away parts it does not.” Michigan v.
`
`EPA, 576 U.S. at 754.
`
`DHS argues and the lower court agreed that the lack of definition for the
`
`term “bona fide student” creates an ambiguity and therefore entitles DHS to
`
`deference under Chevron. The lower court finds, “[b]y failing to define this
`
`statutory language, Congress has not ‘directly addressed the precise question at
`
`issue,’ namely, ‘whether the scope of f-1 encompasses post-completion practical
`
`training related to the student’s field of study…” Wash. All. of Tech. Workers v.
`
`United States Dep’t of Homeland Sec., 2021 U.S. Dist. LEXIS 21587, *35 (internal
`
`citations omitted). According to the lower court, the lack of statutory definition
`
`created an ambiguity and therefore should triggered deference to DHS’s
`
`interpretation. Id. at *34.
`
`
`
`Thus, the lack of definition obligates a court to accept DHS’s definition that
`
`“bona fide student” means an individual no longer enrolled in college or a
`
`university. And it means that “solely for the course of study” means that
`
`individuals who are no longer engaged in a course of study can remain in the
`
`country.
`
`
`
`Despite findings by the lower court and DHS’s assertions, “bona fide
`
`student” and “solely pursuing a course of study” are not ambiguous terms. They
`
`
`
`11
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 21 of 32
`
`
`are directly connected to a recitation of institutions where an alien is to pursue
`
`his/her course of studies 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 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…
`
`8 U.S.C. 1101(a)(15)(F)(i). “Students” are therefore limited to those enrolled at an
`
`institution of higher learning. Once the individual is no longer enrolled, he or she
`
`stops being a “bona fide student” pursuing a “course of study.”
`
`
`
`Further, DHS’s own regulations define “full course of study.” 8 C.F.R. §
`
`214.2(f)(6). For undergraduates, it means “study at a college or university certified
`
`by a school official to consist of at least 12 semester or quarter hours of instruction
`
`per academic term…” 8 C.F.R. 214.2(f)(6)(B). For post-graduates, it means
`
`“study at a college or university, or undergraduate or postgraduate study at a
`
`conservatory or religious seminary, certified by a DSO [Designated School
`
`Official] as a full course of study.” 8 C.F.R. § 214(f)(6)(A).
`
`
`
`OPT takes place “after completion of the course of study…” 8 C.F.R. §§
`
`214.2(f)(10)(ii)(A)(3) & (f)(5)(ii). It cannot thus encompass aliens who are in the
`
`country “solely pursuing a course of study.”
`
`
`
`
`
`12
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 22 of 32
`
`
`B. The INA’s silence on whether DHS may establish new categories of
`aliens eligible for employment in the United States does not equate to an
`“ambiguity” and thus trigger Chevron deference.
`
`
`
`The lower court appears to conclude that silence in the student visa statute
`
`on work creates an ambiguity that DHS may resolve with what it considers a
`
`“reasonable” regulation. Washtech, 2021 U.S. Dist. LEXIS at *41-*43. Silence,
`
`according to the lower court, therefore, triggers step two of the Chevron analysis
`
`when a court will defer to an agency’s interpretation of a statute provided that
`
`interpretation is “based on a permissible construction of the statute.” Chevron at
`
`843. The lower court, however, failed to determine whether Congress has first
`
`delegated authority to DHS to permit non-student aliens to engage in employment.
`
`Acting without such a delegation violates separation of power doctrines and should
`
`not be sanctioned by this Court.
`
`Before granting Chevron deference, a court must decide “whether Congress
`
`– the branch vested with lawmaking authority under the Constitution – has in fact
`
`delegated to the agency lawmaking power over the ambiguity at issue.” City of
`
`Arlington v. FCC, 569 U.S. 290, 317 (2013) (Roberts C.J., dissenting). Indeed, “an
`
`agency literally has no power to act… unless and until Congress confers power
`
`upon it.” Id. (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)).
`
`And “[a] court should not defer to an agency until the court decides, on its own,
`
`that the agency is entitled to deference.” City of Arlington v. FCC, 569 U.S. 290,
`
`
`
`13
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 23 of 32
`
`
`312(2013) (Roberts, C.J., dissenting). Thus, “[a]n agency cannot exercise
`
`interpretive authority until it has it; the question whether an agency enjoys that
`
`authority must be decided by a court, without deference to the agency.” Id.
`
`“Chevron step two is implicated any time a statute does not expressly negate
`
`the existence of a claimed administrative power… is both flatly unfaithful to the
`
`principles of administrative law… and refuted by precedent.” Ry. Lab. Exec. Ass’n
`
`v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994). Further, “[w]ere courts
`
`to presume a delegation of power absent an express withholding of such power,
`
`agencies would enjoy virtually limitless hegemony, a result plainly out of keeping
`
`with Chevron and quite likely with the Constitution as well.” Id. Finally, “as a
`
`matter of basic separation of powers and administrative law” an agency “may only
`
`take action that Congress has authorized.” Bais Yaakov of Spring Valley v. FCC,
`
`852 F.3d 1078, 1082 (D.C. Cir. 2017).
`
`Silence should not be interpreted as ambiguity; such a principle allows
`
`agencies to legislate without an express delegation of authority from Congress. It
`
`compels courts to defer to agencies rather than using their Article III authority to
`
`interpret the law.
`
`In short, the lack of a delegation to establish new classes of alien workers
`
`does not entitle DHS to deference “beyond the meaning that the statute can bear[.]”
`
`MCI Telecommunications Corp. American Telephone and Telegraphy Co., 512
`
`
`
`14
`
`
`
`USCA Case #21-5028 Document #1898410 Filed: 05/12/2021 Page 24 of 32
`
`
`U.S. 218, 229 (1994). And interpreting 8 U.S.C. § 1101(a)(15)(F)(i) in a manner
`
`that gives it the power to authorize alien employment independent of Congress
`
`runs counter to the INA’s “primary purpose” of “restricting immigration to
`
`preserve jobs for American workers.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893
`
`(1984).
`
`
`
`C. The Court should not be compelled by Chevron to defer to DHS’s
`interpretation.
`
`
`
`There are limits to an agency’s authority. And courts must take it upon
`
`themselves to determine whether an agency has exceeded that authority.
`
`Recently, several U.S. Supreme Court justices have questioned Chevron’s
`
`applicability. These opinions make clear that agencies should not longer receive
`
`the kind of reflexive deference they once enjoyed – particularly in matters
`
`involving so many individuals.
`
`Chevron “compels judges to abdicate the judicial power without
`
`co