WA Alliance of Tech. Workers v. DHS [ORDER IN SLIP OPINION FORMAT] ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed February 1, 2023
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)
On Petition for Rehearing En Banc
Before: SRINIVASAN, Chief Judge; HENDERSON**, MILLETT,
PILLARD, WILKINS, KATSAS*, RAO***, WALKER, CHILDS, and
PAN*, Circuit Judges.
ORDER
Appellant’s petition for rehearing en banc and the
responses thereto were circulated to the full court, and a vote
was requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
2
consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
* Circuit Judges Katsas and Pan did not participate in this
matter.
** Circuit Judge Henderson would grant the petition for
rehearing en banc. A statement by Circuit Judge Henderson,
dissenting from the denial of rehearing en banc, is attached.
*** Circuit Judge Rao would grant the petition for rehearing
en banc. A statement by Circuit Judge Rao, joined by Circuit
Judge Henderson, dissenting from the denial of rehearing en
banc, is attached.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting
from the denial of rehearing en banc: For the reasons explained
in my panel dissent, which is hereby incorporated by reference
thereto, Wash. All. of Tech. Workers v. DHS (“Washtech”),
50 F.4th 164, 194–206 (D.C. Cir. 2022) (Henderson, J.,
concurring in part and dissenting in part), I dissent from the
denial of rehearing en banc.
RAO, Circuit Judge, with whom Circuit Judge HENDERSON
joins, dissenting from the denial of rehearing en banc: For the
reasons thoughtfully explained in Judge Henderson’s dissent,
the panel’s interpretation of the F-1 student visa provision
cannot be reconciled with the text and structure of the
Immigration and Nationality Act (“INA”). Rehearing en banc
is warranted because the panel decision has serious
ramifications for the enforcement of immigration law. In
holding that the nonimmigrant visa requirements are merely
conditions of entry, the court grants the Department of
Homeland Security (“DHS”) virtually unchecked authority to
extend the terms of an alien’s stay in the United States. This
decision concerns not only the large number of F-1 visa
recipients, but explicitly applies to all nonimmigrant visas and
therefore has tremendous practical consequences for who may
stay and work in the United States. By replacing Congress’s
careful distinctions with unrestricted Executive Branch
discretion, the panel muddles our immigration law and opens
up a split with our sister circuits. This is a question of
exceptional importance, and I respectfully dissent from the
decision not to rehear it as a full court.
***
This case involves a challenge to a DHS regulation that
allows F-1 student visa holders to remain in the country after
they graduate and to work in fields related to their area of study
for up to 36 months. 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, 13,087 (Mar. 11, 2016). Under the INA, the
F-1 designation requires an alien to be a “bona fide student
qualified to pursue a full course of study” who “seeks to enter
the United States temporarily and solely for the purpose of
pursuing such a course of study.” Immigration and Nationality
Act, Pub. L. No. 82-414, § 101(a)(15)(F), 66 Stat. 163, 168
(1952) (codified as amended at 8 U.S.C. § 1101(a)(15)(F)(i)).
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Despite the requirements that an F-1 visa go to a person who is
a “bona fide student” seeking “solely” to pursue a course of
study in the United States, the majority concludes that DHS has
general authority to extend an F-1 visa for any “reasonably
related” purpose. See Wash. All. of Tech. Workers v. DHS
(“Washtech”), 50 F.4th 164, 178 (D.C. Cir. 2022). On the
majority’s reading, the highly specific requirements of the F-1
provision define only requirements of entry, rather than
ongoing conditions for an alien to remain in the United States.
The majority explicitly recognizes that its reasoning and
analysis applies to all nonimmigrant categories. See id. at 169,
189.
The panel opinion turns Congress’s carefully calibrated
scheme on its head. The INA enumerates 22 categories of
“nonimmigrants” who may be eligible for visas to come to the
country temporarily, with many categories further divided into
specific subcategories. See 8 U.S.C. § 1101(a)(15)(A)–(V).
The nonimmigrant categories are precisely delineated,
reflecting Congress’s judgments as to which aliens may be
admitted into the country and for what reason. For instance, an
E-3 visa is available to an alien seeking “to perform services in
a specialty occupation in the United States” but only “if the
alien is a national of the Commonwealth of Australia.” Id.§ 1101(a)(15)(E)(iii). An H-2A visa is available to an alien
seeking to perform “agricultural labor,” but only such labor as
explicitly “defined in section 3121(g) of title 26,” “as defined
in section 203(f) of title 29,” or “the pressing of apples for cider
on a farm.” Id. § 1101(a)(15)(H)(ii)(a).
These provisions exemplify Congress’s detailed attention
to the very specific conditions that attach to each nonimmigrant
visa. Nonetheless, the panel concludes such statutory
requirements apply only at the moment of entry. DHS therefore
may “regulate how long and under what conditions
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nonimmigrants may stay in the country.” Washtech, 50 F.4th at
170. Although Congress has set out the conditions for entry,
the panel draws the surprising conclusion that DHS may
prescribe different criteria for staying in the United States.
Under the majority’s approach, DHS is left with wide
discretion to determine which aliens may remain in the country
even after the grounds for their visa have lapsed. The only
constraint identified by the panel is that an extended stay must
be “reasonably related” to the particular visa category. See id.
at 178–79. This capacious standard could distort other
nonimmigrant categories, allowing, for instance, an
agricultural worker admitted under an H-2A visa to remain in
the country even if he abandons his agricultural work and opts
instead to pursue a degree in agricultural sciences. Glossing
over Congress’s delineation of dozens of discrete categories,
the majority’s interpretation effectively erases the INA’s very
specific requirements the moment an alien enters the United
States. 1
The panel’s holding that DHS has general discretion to
permit lengthy work stays for nonimmigrants is similarly
difficult to square with the detailed statutory requirements for
work visas. Congress has enumerated specific pathways for
aliens to work. Some, such as the H-1B visa for skilled workers
and the H-2B visa for nonagricultural workers, are subject to
annual numerical limits. See 8 U.S.C. § 1184(g)(1). Allowing
1
The fact that DHS has long granted some extensions of the F-1 visa
does not change the question of whether the agency has authority to
do so. Agencies may exercise only the authority granted by Congress
and such authority cannot be conferred by silence. See Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic
that an administrative agency’s power to promulgate legislative
regulations is limited to the authority delegated by Congress.”).
4
F-1 students to work does an end run around these numerical
limits for skilled workers because they are often
interchangeable. See Washtech, 50 F.4th at 203 (Henderson, J.,
concurring in part and dissenting in part) (observing that F-1
visa holders working after completion of their studies have
“surpassed the H-1B visa program as the greatest source of
highly skilled guest workers”).
The INA’s provisions for work visas reflect political
judgments balancing the competing interests of employers and
American workers. Such detailed legislation is incompatible
with assuming a broad delegation to DHS to confer additional
work visas through regulation. As the Supreme Court recently
emphasized, “extraordinary grants of regulatory authority”
require not “a merely plausible textual basis for the agency
action” but “clear congressional authorization.” West Virginia
v. EPA, 142 S. Ct. 2587, 2609 (2022) (cleaned up). Here, as
Judge Henderson explained, there is not even a plausible
textual basis for DHS to allow student visa holders to remain
in the country and work long after their student status has
lapsed. See Washtech, 50 F.4th at 198–204 (Henderson, J.,
concurring in part and dissenting in part).
The majority’s argument to the contrary rests on a
fundamental misreading of the statute. The central claim for
DHS’s broad authority is that the INA contemplates a two-step
process: nonimmigrant categories specify “entry conditions,”
while the “post-arrival” requirements are “spelled out pursuant
to section 1184(a)(1).” Id. at 169–70 (majority opinion).
Section 1184(a)(1), however, is not about post-arrival
requirements. Rather, it provides that “[t]he 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) (emphasis
added). DHS’s regulatory authority to set time and conditions
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applies only to “admission.” If there were any doubt about the
plain meaning of the term, “admission” is explicitly defined as
“the lawful entry of the alien into the United States.” 8 U.S.C.
§ 1101(a)(13)(A) (emphasis added).
It is therefore quite clear that section 1184(a)(1) allows
DHS to prescribe regulations that govern aliens’ entry into the
country, but does not provide independent authority for
expanding “post-arrival” stays and work authorization. If the
nonimmigrant categories define only the terms of “entry,” as
the majority holds, then DHS’s regulatory authority over
“admission” is similarly limited to the terms of entry.
The interpretation most consistent with the text and
structure of the INA is that the criteria that apply at admission
continue to govern a nonimmigrant’s stay in the country after
entry. DHS has authority to fill in the details of these statutory
requirements by promulgating regulations under section
1184(a)(1). For instance, DHS has permitted F-1 students a
short period of time to remain in the country after they
graduate, because students are not expected to depart the
moment their studies end. See 8 C.F.R. § 214.2(f)(5)(iv).
Providing such details is reasonably within the authority to set
the time and conditions of admission.
Section 1184(a)(1), however, does not provide authority
for DHS to allow F-1 visa holders to stay and work in the
United States for years after they are no longer students. Such
valuable benefits are entirely distinct from the time and
conditions of admission. This plain meaning is consistent with
binding circuit precedent, in which we have held the F-1 visa
provision imposes ongoing conditions. See Anwo v. INS, 607
F.2d 435, 437 (D.C. Cir. 1979) (per curiam) (holding that if an
F-1 student visa holder “did intend to make the United States
his permanent home and domicile, then he violated the
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conditions of his student visa and was not here ‘lawfully’”).
The panel majority, however, fails even to cite this binding
circuit precedent.2
In light of the clear statutory directives, it is unsurprising
that no court of appeals has adopted the approach taken by the
panel majority. In fact, the Supreme Court and other circuits
have consistently held nonimmigrant visa holders must satisfy
the statutory criteria both at entry and during their presence in
the United States. See, e.g., Elkins v. Moreno, 435 U.S. 647,
666–67 (1978) (“Of course, should a G-4 alien terminate his
employment with an international treaty organization, both he
and his family would lose their G-4 status.”); Khano v. INS,
999 F.2d 1203, 1207 & n.2 (7th Cir. 1993) (stating the
immigration authorities may deport “those nonimmigrants who
fail to maintain the conditions attached to their nonimmigrant
status while in the United States”); Graham v. INS, 998 F.2d
194, 196 (3d Cir. 1993) (holding that if an alien on a temporary
worker visa planned “to make the United States his domicile,
then he violated the conditions of his visa and his intent was
not lawful”); Castillo-Felix v. INS, 601 F.2d 459, 464 (9th Cir.
1979) (holding that aliens who “are here for a temporary
purpose” yet intend to remain in the country “violate the terms
of their admission and are no longer here lawfully”).
2
The majority primarily relies on a nearly fifty-year old Third Circuit
decision. See Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977). But that
opinion merely stated a particular nonimmigrant visa provision was
“silent as to any controls to which … aliens will be subject after they
arrive in this country.” Id. at 622–23. The opinion nowhere stated the
nonimmigrant requirements apply only at entry, and the Third Circuit
has subsequently interpreted a nonimmigrant visa provision as
imposing ongoing conditions during an alien’s presence in the
United States. Graham v. INS, 998 F.2d 194, 196 (3d Cir. 1993).
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Inconsistent with the text and the structure of the INA, the
panel’s decision has also created a lopsided circuit split.
***
The program at issue here may be longstanding; it may
even be good policy for retaining high-skilled graduates who
will further innovation and economic development. But
irrespective of the benefits of DHS’s regulations, neither the
agency nor this court is authorized to rewrite the immigration
laws established by Congress. The panel decision is
inconsistent with the detailed nonimmigrant visa program,
which precisely specifies who may enter and for what
purposes. And the panel’s reasoning applies not just to F-1 visa
holders, but extends DHS’s authority to confer valuable
benefits to all nonimmigrant visa holders. Because the legal
questions are weighty and have important consequences for the
enforcement of immigration law, I would grant rehearing en
banc.