Save Jobs USA v. DHS ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 27, 2019 Decided November 8, 2019
No. 16-5287
SAVE JOBS USA,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
OFFICE OF GENERAL COUNSEL,
APPELLEE
ANUJKUMAR DHAMIJA, ET AL.,
INTERVENORS
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00615)
John M. Miano argued the cause for appellant. With him
on the briefs were Dale Wilcox and Michael Hethmon.
Matthew J. Glover, Attorney, U.S. Department of Justice,
argued the cause for appellee. On the brief were Glenn M.
Girdharry, Assistant Director, and Joshua S. Press, Trial
Attorney. Erez Reuveni, Assistant Director, entered an
appearance.
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Carl E. Goldfarb argued the cause and filed the brief for
intervenors.
Paul W. Hughes, Michael B. Kimberly, Jason Oxman,
Steven P. Lehotsky, Michael B. Schon, and Peter C. Tolsdorf
were on the brief for amici curiae The Chamber of Commerce
of the United States, et al. in support of appellees.
Before: TATEL and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Save Jobs USA, an association
representing Southern California Edison workers, challenges a
Department of Homeland Security rule that permits certain visa
holders to seek lawful employment. The district court found
that Save Jobs lacked Article III standing and granted summary
judgment in the Department’s favor. We reverse. For the
reasons set forth in this opinion, we conclude that Save Jobs
has demonstrated that the rule will subject its members to an
actual or imminent increase in competition and that it therefore
has standing to pursue its challenge.
I.
Our nation’s immigration laws distinguish between two
categories of foreign nationals seeking admission to the United
States: “nonimmigrants,” who plan to stay in the country only
temporarily, and “immigrants,” who plan to stay permanently.
See 8 U.S.C. § 1184(b) (“Every alien . . . shall be presumed to
be an immigrant until he establishes . . . that he is entitled to a
nonimmigrant status . . . .”); id. § 1101(a)(15) (setting forth
nonimmigrant classifications). The rule challenged here
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attempts to ease the burdens faced by certain nonimmigrants
during their often-lengthy transition to immigrant status.
The Immigration and Nationality Act authorizes the
admission of nonimmigrants “to perform services . . . in a
specialty occupation,” id. § 1101(a)(15)(H)(i)(b), and those
specialty workers’ spouses, id. § 1101(a)(15)(H). Specialty
workers admitted under this provision receive H–1B visas,
which permit them to work in the occupation for which they
were admitted. 8 C.F.R. § 214.2(h)(1)(i), (ii)(B). The specialty
workers’ spouses receive H–4 visas, which permit the spouses
to reside in the United States but do not authorize them to work.
Id. § 214.2(h)(9)(iv). Generally, H–1B visa holders and their
H–4 spouses may reside in the country for a maximum of six
years, after which time they must depart and remain abroad for
at least one year before seeking to reenter in the same status.
8 U.S.C. § 1184(g)(4); 8 C.F.R. § 214.2(h)(13)(iii)(A).
Although the H–1B visa permits its holder to remain in the
United States only temporarily, an H–1B nonimmigrant may
obtain a permanent resident visa—better known as a green
card—through the employer-sponsored immigration process.
Getting a green card takes a long time. An employer must first
identify a job for which the H–1B visa holder will be
permanently hired and then certify to the Secretary of Labor
that (1) “there are not sufficient workers who are able, willing,
qualified[,] . . . and available” to fill the position; and (2) that
the alien’s employment “will not adversely affect the wages
and working conditions” of “similarly employed” workers in
the United States. 8 U.S.C. § 1182(a)(5)(A)(i). If the Secretary
approves the certification, the employer then submits a so-
called Form I–140 petition, which must be approved by the
Department before the H–1B visa holder can change status. See
id. § 1154(a)(1)(F), (b); 8 C.F.R. § 204.5(a). But even H–1B
visa holders with approved Form I–140 petitions may be
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unable to adjust status because the Act limits the total number
of available employment-based green cards. See 8 U.S.C.
§ 1151(d). The Act also specifies a per-country cap, further
limiting the number of green cards available to individuals
from the same country. See id. § 1152(a)(2). Once a country’s
cap is reached, applicants from that country must wait until
more employment-based green cards become available.
Recognizing the potential for delay in adjustment,
Congress amended the Act to permit H–1B visa holders who
have begun the employer-based immigration process to remain
and work in the United States while awaiting decisions on their
applications for lawful permanent residence. Under the
amended Act and its implementing regulations, H–1B
nonimmigrants with approved Form I–140 petitions who are
unable to adjust status because of per-country visa limits may
extend their H–1B stay in three-year increments until their
adjustment of status applications have been adjudicated. See
American Competitiveness in the Twenty-first Century Act of
2000, Pub. L. No. 106-313, § 104(c), 114 Stat. 1251, 1253
(codified at 8 U.S.C. § 1184 note); 8 C.F.R.
§ 214.2(h)(13)(iii)(E). In addition, H–1B visa holders who are
the beneficiaries of labor certification applications or Form I–
140 petitions are eligible for recurring one-year extensions of
H–1B status if 365 days have elapsed since the application or
petition was filed. See American Competitiveness in the
Twenty-first Century Act § 106(a)–(b), 114 Stat. at 1253–54,
as amended by 21st Century Department of Justice
Appropriations Authorization Act, Pub. L. No. 107-273,
§ 11030A, 116 Stat. 1762, 1836–37 (2002) (codified at
8 U.S.C. § 1184 note); 8 C.F.R. § 214.2(h)(13)(iii)(D).
Against this background, the Department issued a rule
permitting H–4 visa holders to obtain work authorization if
their H–1B visa-holding spouses have been granted an
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extension of status under the Act or are the beneficiaries of
approved Form I–140 petitions but cannot adjust status due to
visa oversubscription. Employment Authorization for Certain
H–4 Dependent Spouses, 80 Fed. Reg. 10,284, 10,285 (Feb. 25,
2015) (codified at 8 C.F.R. §§ 214.2, 274a) (“H–4 Rule”). By
making H–4 visa holders eligible for lawful employment, the
Department sought to “ameliorate certain disincentives that
currently lead H–1B nonimmigrants to abandon efforts to
remain in the United States while seeking [lawful permanent
resident] status, thereby minimizing disruptions to U.S.
businesses employing such workers.” Id. Specifically, the
Department explained that H–1B nonimmigrants and their
families often face long delays in the process of obtaining
permanent residence, and that H–4 visa holders’ inability to
work during these delays leads to “personal and economic
hardships” that worsen over time, “increas[ing] the
disincentives for H–1B nonimmigrants to pursue [lawful
permanent resident] status and thus increas[ing] the difficulties
that U.S. employers have in retaining highly educated and
highly skilled nonimmigrant workers.” Id. at 10,284.
Appellant Save Jobs, an association formed to “address the
problems American workers face from foreign labor entering
the United States job market through visa programs,” Compl.
¶ 8, challenged the rule in the district court, arguing that it
exceeded the Department’s statutory authority, and that, in
adopting it, the Department acted arbitrarily and capriciously.
The parties cross-moved for summary judgment on standing
and the merits. The district court, finding that Save Jobs failed
to demonstrate that the rule would cause its members any injury
and thus lacked Article III standing, granted summary
judgment in the Department’s favor. See Save Jobs USA v.
Department of Homeland Security, 210 F. Supp. 3d 1, 5, 8–11
(D.D.C. 2016).
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Save Jobs appealed. Following the early 2017 change of
presidential administrations, we held the case in abeyance,
initially to allow the incoming administration time to consider
the case and later because the Department expected to begin
the process of rescinding the rule. In December 2018, we
removed the case from abeyance and granted Immigration
Voice and two of its members permission to intervene in order
to defend the rule. “Our review is de novo.” American Institute
of Certified Public Accountants v. IRS, 804 F.3d 1193, 1196
(D.C. Cir. 2015) (citation omitted).
II.
“The ‘irreducible constitutional minimum of standing
consists of three elements’: ‘[t]he plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.’” Air Line Pilots
Ass’n, International v. Chao, 889 F.3d 785, 788 (D.C. Cir.
2018) (alteration in original) (quoting Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016)). As an association claiming
representational standing, Save Jobs has standing to sue if
“‘(1) at least one of [its] members has standing to sue in her or
his own right, (2) the interests [it] seeks to protect are germane
to its purpose, and (3) neither the claim asserted nor the relief
requested requires the participation of an individual member in
the lawsuit.’” American Institute, 804 F.3d at 1197 (quoting
American Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir.
2005)). The Department challenges only the first of these three
requirements. Because the district court disposed of this case at
summary judgment, Save Jobs “may not rest on ‘mere
allegations, but must set forth by affidavit or other evidence
specific facts’ demonstrating standing.” Shays v. Federal
Election Commission, 414 F.3d 76, 84 (D.C. Cir. 2005)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
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(1992)). “For purposes of the standing inquiry, we assume
[Save Jobs] would succeed on the merits of [its] claim.” Barker
v. Conroy, 921 F.3d 1118, 1124 (D.C. Cir. 2019).
Save Jobs argues, as it did in the district court, that the rule
harms its members in several ways, including by increasing
competition for jobs from H–1B visa holders. The doctrine of
competitor standing recognizes that “when regulations illegally
structure a competitive environment—whether an agency
proceeding, a market, or a reelection race—parties defending
concrete interests in that environment suffer legal harm under
Article III.” American Institute, 804 F.3d at 1197 (internal
quotation marks and alteration omitted). Relying on this “well-
established principle,” Air Line Pilots, 889 F.3d at 788, our
court has repeatedly held that an individual who competes in a
labor market has standing to challenge allegedly unlawful
government action that is likely to lead to an increased supply
of labor—and thus competition—in that market. See, e.g.,
Washington Alliance of Technology Workers v. Department of
Homeland Security, 892 F.3d 332, 339–40 (D.C. Cir. 2018)
(labor market for science, technology, engineering, and
mathematics jobs); Mendoza v. Perez, 754 F.3d 1002, 1011
(D.C. Cir. 2014) (labor market for open-range herding jobs). In
Washington Alliance of Technology Workers v. Department of
Homeland Security, for example, we held that a science,
technology, engineering, and mathematics workers’ union had
standing to challenge a Department rule allowing student visa
holders to remain in the United States and work after finishing
their degrees. 892 F.3d at 339–40, 342. The union alleged that
its members had applied to jobs at companies that employed
the student visa holders and that those companies had applied
for the extension on behalf of the student-employees. Id. at
339–40. We found that the union had standing to pursue its
challenge, id. at 342, explaining that “‘the basic requirement’”
of a competitor standing claim is “‘an actual or imminent
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increase in competition, which increase we recognize will
almost certainly cause an injury in fact,’” id. at 339 (quoting
Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010)).
Save Jobs contends that, like the regulation challenged in
Washington Alliance, the rule at issue here will cause its
members to face increased competition for jobs. Absent the
rule, argues Save Jobs, at least some H–1B visa holders
awaiting permanent residence would leave the United States—
exiting the labor pool—because their spouses are unable to
work. By authorizing H–4 visa holders to seek employment,
Save Jobs continues, the rule removes a key obstacle to H–1B
visa holders remaining in the United States throughout the
immigration process, meaning that more H–1B visa holders
will stay and compete with Save Jobs’ members than otherwise
would have.
The administrative record demonstrates as much. Cf.
Competitive Enterprise Institute v. National Highway Traffic
Safety Administration, 901 F.2d 107, 114–15 (D.C. Cir. 1990)
(relying on the “agency’s own experience and sound market
analysis” and the “public comments” contained in the
administrative record as evidence of standing). In promulgating
the rule, the Department sought to “incentivize H–1B
nonimmigrants and their families to continue to wait and
contribute to the United States”—that is, by working—
“through an often lengthy waiting period for an immigrant visa
to become available.” H–4 Rule, 80 Fed. Reg. at 10,296. The
Department expected the rule would “benefit U.S. employers
by decreasing the labor disruptions that occur when H–1B
nonimmigrants abandon the permanent resident process.” Id.
The record contains evidence confirming the Department’s
expectation: more than sixty commenters wrote that they had
planned to move out of the United States, but will instead
remain and pursue lawful permanent resident status as a result
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of the new rule; two dozen reported that they had already left
the country due to the prohibition on H–4 visa holder
employment; and several warned that they would soon leave
because H–4 visa holders cannot work under current (now
former) law. Id. at 10,288, 10,293. Indeed, the Department
expressly “disagree[d]” with one commenter’s concern that the
record “failed to indicate that potential immigrants have
abandoned the immigration process, or have decided against
coming to the United States in the first place, because their
spouses would not be authorized to work,” explaining that it
“believes that this rule will fulfill its intended purpose”—
namely, “encourag[ing] certain highly skilled H–1B
nonimmigrants to remain in the United States.” Id. at 10,293.
Given that Save Jobs has offered sufficient evidence to
show an “actual or imminent increase in competition,” Sherley,
610 F.3d at 73, all that remains is for it to demonstrate that its
members compete with H–1B visa holders in the labor market.
It has done so through its members’ affidavits. Two members
declare that they worked as information technology specialists
at Southern California Edison for more than fifteen years until
they were fired and replaced by H–1B visa holders. Bradley
Aff. ¶¶ 5, 8; Buchanan Aff. ¶¶ 7, 9. A third worked as a system
analyst at Southern California Edison for twenty years until
she, like the other two, was fired and replaced by an H–1B visa
holder. Gutierrez Aff. ¶ 5, 10. All three have been actively
looking for new jobs in the technology sector, including by
attending job fairs, participating in job placement programs,
and submitting job applications. See Bradley Aff. ¶ 13;
Buchanan Aff. ¶ 14; Gutierrez Aff. ¶¶ 12–13. Although Save
Jobs “has offered no evidence that the competitive harm” it
claims from the rule “has yet occurred”—indeed, the members
lost their jobs, and Save Jobs filed suit, before the rule went
into effect—“our precedent imposes no such requirement.”
American Institute, 804 F.3d at 1198. In short, the affidavits
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establish that Save Jobs’ members compete with H–1B workers
for technology jobs, and the rulemaking record itself
demonstrates that the rule will increase competition for jobs.
The Department insists that any injury to Save Jobs is
caused by the H–1B visa program, not by the rule. See
Appellee’s Br. 24–26. We disagree. Save Jobs has shown that
the rule will cause more H–1B visa holders to remain in the
United States than otherwise would—an effect that is distinct
from that of the H–1B visa holders’ initial admission to the
country.
The Department also contends that Save Jobs has failed to
demonstrate that its members are “direct and current
competitor[s],” Mendoza, 754 F.3d at 1013 (emphasis omitted)
(quoting KERM, Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir.
2004)), of H–1B visa holders. See Appellee’s Br. 26–28. But
the Department overreads our “direct and current competitor”
formulation, which simply distinguishes an existing market
participant from a potential—and unduly speculative—
participant. Our court first used the term in New World Radio,
Inc. v. FCC, where a licensee of a Washington, D.C. radio
station challenged a Federal Communications Commission
order granting a Maryland-based station’s license renewal
application. 294 F.3d 164, 166, 170 (D.C. Cir. 2002).
Explaining that injury to the Washington station could occur
“only if” the Maryland station “subsequently seeks and secures
the relocation of its [Maryland] broadcast license to the
Washington, D.C. programming area,” we held that the
Washington station lacked competitor standing to challenge the
license. Id. at 171–72; see also DEK Energy Co. v. FERC, 248
F.3d 1192, 1194 (D.C. Cir. 2001) (holding that a petitioner who
sold gas in the Northern California market lacked standing
where it failed to claim that its alleged competitor “ha[d] yet
exploited [its] capacity to sell a single molecule of gas in
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Northern California”); El Paso Natural Gas Company v.
FERC, 50 F.3d 23, 27 (D.C. Cir. 1995) (rejecting argument that
El Paso was a “potential competitor” of suppliers to the Baja
California market because it had not satisfied the pre-
conditions to the Federal Energy Regulatory Commission’s
approval of its entry into that market). By contrast, in this case
we know that H–1B visa holders have competed with Save
Jobs’ members in the past, and, as far as we know, nothing
prevents them from doing so in the future.
Making a related point, the Department argues that
because H–1B visa holders “by definition are already
employed,” Save Jobs must provide “more evidence that [H–
1B visa holders] are seeking new jobs in the same market as
Save Jobs’ members.” Appellee’s Br. 26–27 (emphasis
omitted). Again, we disagree. The supply side of a labor market
is made up of those individuals who are employed and those
actively looking for work. Indeed, in Washington Alliance, we
never questioned that technology job seekers competed in the
same labor market as student visa holders employed at
technology firms. See 892 F.3d at 339–40.
Next, the Department claims that any H–1B visa holders
affected by the rule “are by definition . . . staying to apply for
permanent residence,” making them “part of the domestic labor
pool of U.S. workers—not alien competitors.” Appellee’s Br.
27 (internal quotation marks omitted). We cannot see how this
defeats Save Jobs’ claim of increased competition, and the
Department never tells us.
At oral argument, Department counsel insisted that no H–
1B visa holder who will benefit from the rule will compete with
any Save Jobs members because eligibility for the rule depends
on the H–1B visa holder first having been offered a job for
which the Department of Labor has certified “no U.S. worker
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is available.” Oral Arg. Tr. 21:17–18. In effect, counsel invites
us to distinguish between H–1B visa holders generally, with
whom Save Jobs’ members are quite clearly in competition,
and H–1B visa holders who have begun the process of applying
for lawful permanent residence, who the Department contends
can only take jobs for which there is no American competition.
See id. at 28:11–19 (“They have not pled that they are seeking
employment at companies for which H–1B workers who would
receive a benefit from the H–4 Rule are currently employed,
but even if they did, . . . [that] would require . . . the prospect
that . . . the H–1B visa holder was in a job for which no U.S.
worker was available, but instead they were available.”).
The Department neither raised this argument before the
district court nor briefed it on appeal. “Generally, arguments
raised for the first time at oral argument are forfeited.” United
States ex rel. Davis v. District of Columbia, 793 F.3d 120, 127
(D.C. Cir. 2015). Given the Department’s insistence that the
certification procedure “goes to our jurisdiction,” however, we
shall consider it—“though we are disappointed in the
[Department] for raising this issue so late that [Save Jobs] had
no adequate opportunity to respond.” Shays v. Federal Election
Commission, 528 F.3d 914, 923 (D.C. Cir. 2008).
The argument lacks merit in any event. The rule, as well
as the Department’s own briefing here and before the district
court, explains that for H–1B visa holders’ spouses to qualify
for employment authorization, the H–1B visa holders need
only be the beneficiaries of pending labor certification
applications. See Appellee’s Br. 5–8; Def.’s Mem. in Supp. of
its Mot. for Summ. J. 3–4. While the application remains
pending, H–1B visa holders compete in the labor market
against Save Jobs’ members. Even more, after the labor
certification is issued, in certain circumstances H–1B visa
holders may change jobs without obtaining new certifications.
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See 8 U.S.C. § 1182(a)(5)(A)(iv) (explaining that a labor
certification for a nonimmigrant “covered by section
1154(j)”—which pertains to nonimmigrants whose permanent
residence applications remain pending for 180 days or more—
“shall remain valid with respect to a new job . . . if the new job
is in the same or a similar occupational classification as the job
for which the certification was issued”). The Department’s last-
second effort therefore does nothing to change our
understanding of the case.
One additional matter remains: Save Jobs challenges the
standing of Immigration Voice, Anujkumar Dhamija, and
Sudarshana Sengupta to intervene in this appeal. But a motions
panel has already ruled that the intervenors have standing, and
we are bound by that decision. See Petties v. District of
Columbia, 227 F.3d 469, 472 (D.C. Cir. 2000) (“Under this
court’s practice, a decision of the motions panel is the law of
the case; a later panel considering the merits is bound by that
law.”).
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III.
Given that the merits here involve complex questions
about the scope of the Department’s authority, which the
Department did not brief on appeal, and recognizing the
substantial possibility this case will be mooted by the
Department’s promised rescission of the rule, we think it best
to remand to give the district court an opportunity to thoroughly
assess and finally determine the merits in the first instance. Cf.
Save Jobs, 210 F. Supp. 3d at 12–13 (“briefly discuss[ing] the
merits of Plaintiff’s APA claim” but “mak[ing] no final
determination”). Accordingly, we reverse the district court’s
grant of summary judgment and remand for further
proceedings consistent with this opinion.
So ordered.