Wash. Alliance of Tech. Workers v. U.S. Dep't of Homeland Sec.

• Decision Date: 28 January 2021
• Docket Number: Civil Action No. 16-1170 (RBW)
• Citation: 518 F.Supp.3d 448
• Court: U.S. District Court — District of Columbia
• Parties: WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants, and National Association of Manufacturers, et al., Intervenor-defendants.

518 F.Supp.3d 448

WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, Plaintiff,

v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants,andNational Association of Manufacturers, et al., Intervenor-defendants.

Civil Action No. 16-1170 (RBW)

United States District Court, District of Columbia.

Signed January 28, 2021

Michael Meriwether Hethmon, Dale L. Wilcox, John Michael Miano, Immigration Reform Law Institute, Washington, DC, for Plaintiff.

Erez Reuveni, Glenn M. Girdharry, Joshua Samuel Press, U.S. Department of Justice, Washington, DC, for Defendants.

Paul Whitfield Hughes, III, Michael Branch Kimberly, McDermott Will & Emery LLP, Washington, DC, for Intervenor-defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, the Washington Alliance of Technology Workers ("Washtech"), a collective-bargaining organization representing science, technology, engineering, and mathematics ("STEM") workers, brings this action against the defendants, the United States Department of Homeland Security ("DHS"), the Secretary of DHS, the United States Immigration and Customs Enforcement ("ICE"), the Director of ICE, the United States Citizenship and Immigration Services ("Citizenship and Immigration Services"), and the Director of Citizenship and Immigration Services (collectively, the "Government"), and the intervenor-defendants, the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council (collectively, the "Intervenors"), see Complaint ("Compl.") ¶¶ 8, 10–15, challenging, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 06 (2012), (1) DHS's 1992 regulation creating a twelve-month optional practical training ("OPT") program (the "OPT Program") for nonimmigrant foreign nationals admitted into the United States with an F-1 student visa, see Pre-Completion Interval Training; F-1 Student Work Authorization, 57 Fed. Reg. 31,954 (July 20, 1992) (codified at 8 C.F.R. pts. 214 & 274a) (the "1992 OPT Program Rule"); see Compl. ¶¶ 54–61; and (2) DHS's 2016 regulation permitting eligible F-1 student visa holders with STEM degrees to apply for extensions of their participation in the OPT Program for up to an additional twenty-four months, see 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) (codified at 8 C.F.R. pts. 214 & 274a) (the "2016 OPT Program Rule"), see Compl. ¶¶ 62–84. Currently pending before the Court are (1) the Plaintiff's Motion for Summary Judgment ("Pl.’s Mot."); (2) the Defendants’ Opposition and Cross-Motion for Summary Judgment ("Defs.’ Mot."); (3) the Intervenors’ Motion for Summary Judgment ("Intervenors’ Mot."); and (4) the Plaintiff's Motion to Strike the Brief Amici Curiae of Institutions of Higher Education and Objections to Evidence Submitted in the Brief ("Pl.’s Mot. to Strike"). Upon careful consideration of the parties’ submissions,¹ the Court concludes for the following reasons that it must deny Washtech's motion for summary judgment, grant the Government's and the Intervenors’ motions for summary judgment, and deny Washtech's motion to strike.²

I. BACKGROUND

A. Statutory and Legal Background

An F-1 visa provides foreign national students valid immigration status for the duration of a full course of study at an approved academic institution in the United States. See 8 U.S.C. § 1101(a)(15)(F)(i). Since 1947, F-1 visa students, in conjunction with pursuing a course of study, have been able to engage in some version of OPT during their studies or on a temporary basis after the completion of their studies. See 8 C.F.R. § 125.15(b) (1947). And since 1992, F-1 visa students have been allowed to apply for up to twelve months of OPT, to be used either during or following the completion of their degree requirements. See 8 C.F.R. § 214.2(f)(10).

1. 2008 OPT Program Rule

In April 2008, DHS issued an interim final rule with request for comments that extended the period of OPT in which a student could participate by seventeen months for F-1 nonimmigrants with a qualifying STEM degree. See Extending Period of Optional Practical Training by [Seventeen] Months for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students with Pending H-1B Petitions, 73 Fed. Reg. 18,944 (Apr. 8, 2008) (to be codified at 8 C.F.R. pts. 214 & 274a) (the "2008 OPT Program Rule"). The goal of this extension was to help alleviate a "competitive disadvantage" for United States employers recruiting STEM-skilled workers educated in the United States under the H-1B visa program. See 73 Fed. Reg. 18,944. H-1B visas are temporary employment visas granted annually to foreign nationals in "specialty occupations," including many occupations in the STEM field. 8 C.F.R. § 214.2(h)(1)(ii)(B). The number of H-1B visas issued on an annual basis is limited, and the program is oversubscribed. See 73 Fed. Reg. at 18,946. The extension provided by the 2008 OPT Program Rule sought to "expand the number of alien STEM workers that could be employed in the [United States]," Compl. ¶ 46; see also 73 Fed. Reg. at 18,953, and explicitly referenced the specific concern regarding the rigidity of the H-1B visa program, see 73 Fed. Reg. at 18,946 –47.

In 2014, Washtech filed suit, challenging on procedural and substantive grounds, both the underlying twelve-month 1992 OPT Program Rule and the seventeen-month extension added by the 2008 OPT Program Rule. See Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec. ("Washtech I"), 74 F. Supp. 3d 247, 251–52 (D.D.C. 2014). There, another member of this Court found that Washtech lacked standing to challenge the 1992 OPT Program Rule, see id. at 252–53, but did have standing to challenge the 2008 OPT Program Rule, see id. at 253. The Court vacated the 2008 OPT Program Rule because it had been promulgated without notice and comment, see Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec. ("Washtech II"), 156 F. Supp. 3d 123, 149 (D.D.C. 2015), judgment vacated, appeal dismissed, 650 Fed. App'x 13 (D.C. Cir. 2016) (" Washtech II Appeal"), and stayed vacatur of the rule to allow DHS to promulgate a new rule, see id. On appeal of that decision to the District of Columbia Circuit, Washtech alleged that the Court "had improperly allowed DHS to continue the policies unlawfully put in place in the 2008 OPT [Program] Rule" and that "the OPT program was not within DHS's authority." Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec. ("Washtech III"), 249 F. Supp. 3d 524, 531–33 (D.D.C. 2017) (Walton, J.) (internal quotation marks and alterations omitted), aff'd in part, rev'd in part, 892 F.3d 332 (D.C. Cir. 2018) (" Washtech III Appeal").

2. 2016 OPT Program Rule

In response to the ruling issued by this Court's colleague, DHS issued a notice of proposed rulemaking on October 19, 2015, requesting the submission of public comments prior to November 18, 2015. See Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees, 80 Fed. Reg. 63,376 (Oct. 19, 2015). While the 2008 OPT Program Rule had extended the OPT Program tenure by seventeen months for eligible STEM students, this notice instead proposed extending the OPT Program tenure by twenty-four months. See id. (explaining that "[t]his [twenty-four] month extension would effectively replace the [seventeen] month STEM OPT [Program] extension currently available to certain STEM students"). The notice also deviated from the 2008 OPT Program Rule in several other respects. See id. at 63,379 –94 (discussing the proposed changes in detail). Namely, the notice contained a distinct change in tone—it dropped all references to the H-1B visa program that had been in the 2008 OPT Program Rule and instead explained that its purpose was to "better ensure that students gain valuable practical STEM experience that supplements knowledge gained through their academic studies, while preventing adverse effects to [United States] workers." Id. at 63,376.

On March 11, 2016, after the expiration of the public notice-and-comment period, DHS issued the final version of the 2016 OPT Program Rule. See Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees, 81 Fed. Reg. 13,040 (Mar. 11, 2016) (codified at 8 C.F.R. §§ 214 and 274a). The District of Columbia Circuit then dismissed as moot Washtech's appeal challenging the 2008 OPT Program Rule and vacated the judgment issued by this Court's colleague in its entirety. See Washtech II Appeal, 650 Fed. App'x at 14.

B. This Case

On June 17, 2016, Washtech initiated this action. See Compl. at 1. As previously noted by this Court,

Washtech allege[d] that the 1992 OPT Program Rule and the 2016 OPT Program Rule exceed[ed] the authority of DHS [under] several provisions of the Immigration and Nationality Act ("INA")[, Pub. L. No. 82-414, 66 Stat. 163 (1952),] (Counts I and II); that the 2016 OPT Program Rule was issued in violation of the Congressional Review Act ... because of non-compliance with the notice and comment and incorporation by reference requirements of the statute (Count III); and that the 2016 OPT Program Rule [was] arbitrary and capricious (Count IV).

Washtech III, 249 F. Supp. 3d at 533 (third alteration in original) (citations and internal quotation marks omitted), aff'd in part, rev'd in part, Washtech III Appeal, 892 F.3d 332. Thereafter, the Government moved to dismiss "the Complaint on the grounds that this Court lacks subject matter jurisdiction ... and Washtech [ ] failed to state a claim upon which relief may be granted." Id. at 531. On April 19, 2017, the Court granted the Government's motion to dismiss and dismissed Washtech's Complaint in its entirety. See id. at 556. Specifically, the Court dismissed Count I of the Complaint pursuant to Federal Rule of Civil...