Save Jobs USA v. Department of Homeland Security

• Decision Date: 08 November 2019
• Docket Number: No. 16-5287,16-5287
• Citation: 942 F.3d 504
• Parties: SAVE JOBS USA, Appellant v. United States DEPARTMENT OF HOMELAND SECURITY, Office of General Counsel, Appellee Anujkumar Dhamija, et al., Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

942 F.3d 504

SAVE JOBS USA, Appellant

v. United States DEPARTMENT OF HOMELAND SECURITY, Office of General Counsel, AppelleeAnujkumar Dhamija, et al., Intervenors

No. 16-5287

United States Court of Appeals, District of Columbia Circuit.

Argued September 27, 2019

Decided November 8, 2019

John M. Miano, Summit, NJ, 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.

Carl E. Goldfarb, Fort Lauderdale, FL, 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.

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 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 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 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).

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 , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "For purposes of the standing inquiry, we assume [Save Jobs] would succeed on the...