Washington Alliance of Technology Workers v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WASHINGTON ALLIANCE OF
TECHNOLOGY WORKERS,

Plaintiff,
Civil Action No. 14-529 (ESH)
v.

U.S. DEPARTMENT OF HOMELAND
SECURITY,

Defendant.

MEMORANDUM OPINION

Plaintiff Washington Alliance of Technology Workers, a collective-bargaining

organization that represents science, technology, engineering, and mathematics (“STEM”)

workers, has sued the U.S. Department of Homeland Security (“DHS”). Plaintiff challenges an

interim final rule promulgated by defendant DHS in April 2008 extending, for eligible STEM

students, the duration of optional practical training (“OPT”), which allows nonimmigrant foreign

nationals on an F-1 student visa to engage in employment during and after completing a course

of study at a U.S. educational institution. See 8 C.F.R. § 214.2(f)(10)(ii). Before this Court are

the parties’ cross motions for summary judgment. (Pl.’s Cross Mot. for Summ. Judgment or

Judgment on the Administrative Record [ECF No. 25] (“Pl.’s Mot.”)); Def.’s Mot. for Summ.

Judgment [ECF No. 27] (“Def.’s Mot.”).) For the following reasons, both motions will be

granted in part and denied in part.

BACKGROUND

The Immigration and Nationality Act (“INA”) creates several classes of nonimmigrants

who are permitted to enter the United States for a limited time and for a specific purpose. 8
U.S.C. § 1101(a)(15). This case involves two such classes. First, F-1 visas provide entry for

individuals who qualify as

an alien having a residence in a foreign country which he has no intention of
abandoning, who is a bona fide student qualified to pursue a full course of study
and who seeks to enter the United States temporarily and solely for the purpose of
pursuing such a course of study . . . at an established . . . academic institution . . . .

Id. § 1101(a)(15)(F)(i). Second, H-1B visas cover individuals who fall into the following

category:

an alien . . . who is coming temporarily to the United States to perform services . .
. in a specialty occupation . . . and with respect to whom the Secretary of Labor
determines and certifies to the Secretary of Homeland Security and the Secretary
of State that the intending employer has filed with the Secretary of Labor an
attestation under section 212(t)(1) . . . .

Id. § 1101(a)(15)(H)(i)(b). A “specialty occupation” requires the attainment of a bachelor’s

degree. Id. § 1184(i)(1). An alien may not obtain an H-1B visa unless his employer has

certified, among other things, that the alien will be paid at least “the prevailing wage level for the

occupational classification in the area of employment.” Id. § 1182(t)(1). The total number of H-

1B visas is currently capped by Congress at 65,000 per year. Id. § 1184(g).

The INA gives the Executive Branch authority to issue regulations governing the

admission of nonimmigrants. See id. § 1184(a)(1) (“The 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 . . . .”). For almost 70 years, DHS and its predecessor, the

Immigration and Naturalization Service (“INS”), have interpreted the immigration laws to allow

students to engage in employment for practical training purposes. See 12 Fed. Reg. 5355, 5357

(Aug. 7, 1947) (“In cases where employment for practical training is required or recommended

by the school, the district director may permit the student to engage in such employment for a

six-month period subject to extension for not over two additional six-month periods . . . .”). At

2
present, students may engage in OPT “[a]fter completion of the course of study, or, for a student

in a bachelor’s, master’s, or doctoral degree program, after completion of all course requirements

for the degree.” 8 C.F.R. § 214.2(f)(10)(ii)(A)(3). The employment must be “directly related to

the student’s major area of study.” Id. § 214.2(f)(10)(ii)(A). Before 2008, a student could only

be authorized for 12 months of practical training, which had to be completed within a 14-month

window following the student’s completion of his course of study. See id. § 214.2(f)(10) (2007).

In April 2008, DHS issued an interim final rule with request for comments that extended

the period of OPT by 17 months for F-1 nonimmigrants with a qualifying STEM degree.

Extending Period of Optional Practical Training by 17 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) (“2008 Rule”). As such, STEM students can now

engage in a maximum of 29 months of OPT. See 8 C.F.R. § 214.2(f)(10)(ii)(C). In describing

the purpose of the 2008 Rule, DHS explained that “the H-1B category is greatly oversubscribed,”

with visa applications reaching the 65,000-person cap progressively earlier every year since

2004. 2008 Rule at 18,946. In 2007, the cap was reached on April 2, the first business day for

filing. Id. As a consequence,

OPT employees often are unable to obtain H-1B status within their authorized
period of stay in F-1 status, including the 12-month OPT period, and thus are
forced to leave the country. The inability of U.S. employers, in particular in the
fields of science, technology, engineering and mathematics, to obtain H-1B status
for highly skilled foreign students and foreign nonimmigrant workers has
adversely affected the ability of U.S. employers to recruit and retain skilled
workers and creates a competitive disadvantage for U.S. companies.

Id. DHS concluded that the 2008 Rule would alleviate the “competitive disadvantage faced by

U.S. high-tech industries” and would “quickly ameliorate some of the adverse impacts on the

U.S. economy” by potentially adding “tens of thousands of OPT workers . . . in STEM

3
occupations in the U.S. economy.” Id. at 18,947-50. DHS noted that the 2008 Rule was issued

without notice and public comment “[t]o avoid a loss of skilled students through the next round

of H-1B filings in April 2008.” Id. at 18,950. Since promulgating this interim rule, DHS has on

several occasions modified, without notice and comment, the list of disciplines that qualify for

the STEM extension via updates to their website. (See Pl.’s Mot., App. A [ECF No. 25-2] at 34-

35.)

Plaintiff filed suit on March 28, 2014. In Counts I-III, plaintiff alleges that the OPT

program exceeds DHS’s statutory authority and conflicts with other statutory requirements,

including the labor certifications related to H-1B visas. In Count IV, plaintiff argues that DHS

acted arbitrarily and capriciously in promulgating the 2008 Rule. In Count V, plaintiff argues

that DHS lacked good cause to waive the notice and comment requirement in promulgating the

rule. In Count VI, plaintiff contends that DHS’s reference to an external website to list the

STEM courses of study violates the relevant rules on incorporation by reference. In Counts VII-

VIII, plaintiff claims that DHS improperly failed to allow for notice and comment before issuing

the 2011 and 2012 modifications of the list of STEM disciplines. And in Count IX, plaintiff

argues that the 2008 Rule and the subsequent 2011 and 2012 modifications exceeded DHS’s

statutory authority.

On November 21, 2014, this Court granted in part and denied in part defendant’s motion

to dismiss. Wash. Alliance of Tech. Workers v. DHS, No. 14-cv-529, 2014 U.S. Dist. LEXIS

163285 (D.D.C. Nov. 21, 2014). First, the Court dismissed Counts I-III on the ground that “the

Complaint does not identify a single WashTech member who has suffered an injury as a result of

the twelve-month OPT program.” Id. at *9. In the alternative, this Court held that Counts I-III

were barred by APA’s six-year statute of limitations. See id. at *10 n.3. The Court found,

4
however, that the complaint did allege sufficient facts to confer onto plaintiff standing to

challenge the 2008 Rule and the 2011 and 2012 modifications. See id. at *15. Plaintiff filed an

Amended Complaint on December 15, 2014. (See First Am. Compl. for Declaratory and

Injunctive Relief [ECF No. 20] (“Compl.”).)

The parties have now filed cross motions for summary judgment.

ANALYSIS

I. STANDING

This Court has already held that “plaintiff’s Complaint . . . is sufficient to establish

Article III standing.” Wash. Alliance, 2014 U.S. Dist. LEXIS 163285, at *15. The Court found

that the complaint alleged that plaintiff’s “named members, who have technology-related degrees

in the computer programming field and have applied for STEM employment during the relevant

time period, were in direct and current competition with OPT students on a STEM extension”

and that “[t]his competition resulted in a concrete and particularized injury.” Id. Nevertheless,

defendant now argues that “[b]ecause Plaintiff has failed to provide the required specific,

particularized evidence necessary to demonstrate that its three members are in direct and current

competition for jobs with OPT students on STEM extensions, its members lack competitor

standing and consequently, Plaintiff lacks associational standing to proceed.” (See Def.’s Mem.

of Law. in Opp. to Pl.’s Cross Mot. for Summ. Judgment [ECF No. 36] (“Def.’s Opp.”) at 2.)

To establish constitutional standing, plaintiff must demonstrate that (1) it has suffered an

injury-in-fact, (2) the injury is fairly traceable to defendant’s challenged conduct, and (3) the

injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992). “‘The party invoking federal jurisdiction bears the burden of establishing’

standing – and, at the summary judgment stage, such a party ‘can no longer rest on . . . mere

5
allegations, but must set forth by affidavit or other evidence specific facts.’” Clapper v. Amnesty

Int’l USA, 133 S. Ct. 1138, 1148-49 (2013) (quoting Lujan, 504 U.S. at 561). Because plaintiff

is an association seeking to establish standing to sue on behalf of its members, it must show that

“(1) at least one of its members would have standing to sue in his own right, (2) the interests the

association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the

relief requested requires that an individual member of the association participate in the lawsuit.”

Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Sierra Club v. EPA,

292 F.3d 895, 898 (D.C. Cir. 2002)). Only the first element of this test is at issue here. See

Wash. Alliance, 2014 U.S. Dist. LEXIS 163285, at *8.

Plaintiff argues that its members have been injured by DHS’s OPT program because that

program “increase[s] the number of economic competitors” and “expose[s] Washtech members

to unfair competition by allowing aliens to work under rules in which they are inherently less

expensive to employ.” (Pl.’s Mot. at 12.) “The competitor standing doctrine recognizes ‘parties

suffer constitutional injury in fact when agencies lift regulatory restrictions on their competitors

or otherwise allow increased competition.’” Mendoza v. Perez, 754 F.3d 1002, 1011 (D.C. Cir.

2014) (quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998)). “A

party seeking to establish standing on the basis of the competitor standing doctrine ‘must

demonstrate that it is a direct and current competitor whose bottom line may be adversely

affected by the challenged government action.’” Id. at 1013 (quoting KERM, Inc. v. FCC, 353

F.3d 57, 60 (D.C. Cir. 2004)). In the competitor sales context, the D.C. Circuit has held that

“petitioners sufficiently establish their constitutional standing by showing that the challenged

action authorizes allegedly illegal transactions that have the clear and immediate potential to

compete with the petitioners’ own sales. They need not wait for specific, allegedly illegal

6
transactions to hurt them competitively.” La. Energy & Power Auth., 141 F.3d at 367 (quoting

Associated Gas Distribs. v. FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990)).

Plaintiff has submitted substantial evidence to support its standing, including affidavits

from its president and three of its members. (See Aff. of Douglas J. Blatt [ECF No. 25-1] (“Blatt

Aff.”); Aff. of Rennie Sawade [ECF No. 25-1] (“Sawade Aff.”); Aff. of Michael Schendel [ECF

No. 25-1] (“Schendel Aff.”); Aff. of Ceasar Smith [ECF No. 25-1] (“Smith Aff.”).) Douglas

Blatt states that he is “employed currently as a computer programmer” and lists twelve

programming jobs that he applied for between 2010 and 2012. (See Blatt Aff. ¶¶ 7-18.) Rennie

Sawade states that he is “employed currently as a temporary programmer” working “on a

contract basis” and that he applied for programming jobs at numerous software companies

between 2010 and 2014, including Microsoft, Amazon, and Facebook. (Sawade Aff. ¶¶ 6-37.)

Ceasar Smith states that he is a “temporary computer systems and network administrator” and

that he applied for computer technician and computer system administrator positions at multiple

companies between 2008 and 2014. (Smith Aff. ¶¶ 5-43.) Michael Schendel, plaintiff’s

president, notes that “[m]any employers openly solicit OPT participants for jobs to the exclusion

of WashTech members,” and he includes with his affidavit one such solicitation seeking a

software engineering in Redmond, Washington, the location of Microsoft. (Schendel Aff. ¶ 12.)

In addition to these affidavits, plaintiff has submitted dozens of job listings seeking individuals

with computer programming experience. (See Pl.’s Mot., App. B [ECF No. 25-3].) Many of

these job advertisements are limited to, or at least targeted at, OPT candidates. (E.g., id. at 7, 17,

35, 53.) Others state that OPT status is “preferred” or list OPT as one of several acceptable

statuses. (E.g., id. at 9, 11, 24, 40, 93.)

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 This evidence is more than sufficient to support plaintiff’s constitutional standing. The

affidavits from Blatt, Sawade, and Smith demonstrate that they are “part of the computer

programming labor market, a subset of the STEM market.” Wash. Alliance, 2014 U.S. Dist.

LEXIS 163285, at *14. The affidavits also show that those individuals “have sought out a wide

variety of STEM positions with numerous employers, but have failed to obtain these positions

following the promulgation of the OPT STEM extension in 2008.” Id. The 2008 Rule was

explicitly intended to increase the number of foreign nationals competing for jobs in the STEM

labor market. See 2008 Rule at 18,953 (“This rule will . . . add[] an estimated 12,000 OPT

students to the STEM-related workforce. . . . [T]his number represents a significant expansion of

the available pool of skilled workers.”). These facts alone suffice to show that the regulation

“ha[s] the clear and immediate potential” to expose plaintiff’s members to increased workforce

competition. La. Energy & Power Auth., 141 F.3d at 367 (quoting Associated Gas Distribs., 899

F.2d at 125). The dozens of job advertisements submitted by plaintiff – many of which express a

preference for OPT computer programmers – suggest that the potential for increased competition

has indeed come to pass.

Defendant lodges multiple objections, most of which this Court addressed in its previous

Memorandum Opinion. Defendant argues that plaintiff must demonstrate that its members

“work in the same job category, that they are willing to work the same jobs going to STEM-OPT

students, and that they are qualified to do so.” (Def.’s Opp. at 6.) In a similar vein, defendant

insists that “Plaintiff must demonstrate with specific facts that the jobs Messrs. Sawade, Blatt,

and Smith attest to applying to in their affidavits were jobs that [they] and OPT students were

applying to.” (Id. at 10.) Defendant demands too much. Plaintiff has demonstrated that its

members work in the computer programming field, which is among the disciplines encompassed

8
by DHS’s STEM regulations. See STEM-Designated Degree Program List: 2012 Revised List,

http://www.ice.gov/sites/default/files/documents/Document/2014/stem-list.pdf (last visited Aug.

5, 2015). Defendant has failed to cite any D.C. Circuit case that requires a greater degree of

specificity. In Mendoza, for example, the Department of Labor had issued regulations easing the

rules for employing alien sheepherders and goatherders. See Mendoza, 754 F.3d at 1008-09.

The D.C. Circuit held that “individuals competing in the herder labor market have standing” to

challenge the regulations. Id. at 1013. Notwithstanding the fact that the plaintiffs had “not

worked as herders since 2011 and may not have applied for specific herder jobs since that time,”

the Circuit found that the Mendoza plaintiffs had standing because they were “experienced and

qualified herders” who “continue[d] to monitor the herder job market.” Id. at 1013-14. Nowhere

in Mendoza did the Circuit suggest that the plaintiffs needed to be willing to accept precisely the

same jobs as the hypothetical aliens who were affected by the agency’s regulations. The

Mendoza Court certainly did not require affidavits stating that the plaintiffs had applied to the

same jobs as the affected aliens. Rather, it was sufficient that “plaintiffs’ affidavits . . .

demonstrate[d] their informal involvement in the labor market.” Id. at 1014. Plaintiff in the

present case has proven substantially more than the Mendoza plaintiffs. Its members are active

participants in the computer programming labor market, and they have applied to numerous

programming jobs since DHS promulgated the 2008 Rule. That is sufficient to confer

competitor standing.

Defendant also argues that plaintiff’s members are not part of the computer programming

market because they are presently employed. (Def.’s Opp. at 8-9.) This argument is meritless.

A worker does not exit his job market simply because he currently has a job. An influx of OPT

computer programmers would increase the labor supply, which is likely to depress plaintiff’s

9
members’ wages and threaten their job security, even if they remain employed. Moreover, being

presently employed does not eliminate plaintiff’s members’ incentive to continue looking for

jobs. For example, one of plaintiff’s members “work[s] on software projects on a contract basis

rather than as an employee.” (Sawade Aff. ¶ 6.) He explains that “[c]ompanies can end

temporary jobs without notice” and states that, “[s]ince 2003, [he has] had to find a new

programming job twelve times when [his] temporary jobs have ended.” (Id. ¶ 7.) In light of this

evidence, the Court concludes that plaintiff has sufficiently demonstrated that the competition its

members face as a result of the 2008 Rule constitutes an “‘injury in fact’ that is ‘actual or

imminent.’” Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (quoting Lujan, 504 U.S. at

560); see also KERM, 353 F.3d at 60-61 (to establish competitor standing, plaintiff must prove

that he is “likely to suffer financial injury as a result of the challenged action”); DEK Energy Co.

v. FERC, 248 F.3d 1192, 1195 (D.C. Cir. 2001) (in the competitor standing context, a plaintiff

must merely show that there is a “substantial . . . probability of injury,” and “there is no need to

wait for injury from specific transactions” (internal quotation marks omitted)) .

Finally, defendant contends that plaintiff’s complaint constitutes a generalized grievance

“akin to ‘taxpayer standing’” because the group of STEM job applicants is “a vague and

generalized category that includes over 150 categories of separate jobs.” (Def.’s Opp. at 14

(citing United States v. Richardson, 418 U.S. 166 (1974)).) As plaintiff correctly points out,

however, “DHS confuses widespread injury with a generalized grievance.” (Reply in Supp. of

Pl.’s Mot. for Summ. Judgment [ECF No. 41] (“Pl.’s Reply”) at 5.) “Although injuries that are

shared and generalized – such as the right to have the government act in accordance with the law

– are not sufficient to support standing, ‘where a harm is concrete, though widely shared, the

Court has found injury in fact.’” Seegars v. Ashcroft, 396 F.3d 1248, 1253 (D.C. Cir. 2005)

10
(citation omitted) (quoting FEC v. Akins, 524 U.S. 11, 24 (1998)). The 2008 Rule cannot escape

review simply because it encompasses a large number of disciplines.

In short, plaintiff has amply demonstrated that its members are direct and current

competitors of the aliens benefited by the 2008 Rule. See Mendoza, 754 F.3d at 1013. Plaintiff

therefore has standing to sue.

II. ZONE OF INTERESTS

Defendant argues that plaintiff “cannot establish that it falls within the zone of interest of

the statutory provision that forms the crux of its complaint.” (Def.’s Mem. of Law on the Lack

of Zone-of-Interest Standing [ECF No. 22] (“Def.’s ZOI Mem.”) at 1.) Defendant contends that

“the F-1 statute’s text . . . does not indicate that Congress was concerned with protecting the

domestic labor market in providing for a foreign student program” and that plaintiff cannot

“rely[] on the general labor protections under the H-1B nonimmigrant category” to prove that its

complaint is proper. 1 (Id. at 5, 8.)

To bring suit under the APA, “[t]he interest [plaintiff] asserts must be ‘arguably within

the zone of interests to be protected or regulated by the statute’ that he says was violated.”

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210

(2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)).

To make this determination, the Court must “apply traditional principles of statutory

1
Defendant did not raise this objection in its motion to dismiss. (See Def.’s Mot. to Dismiss for
Lack of Subject-Matter Jurisdiction [ECF No. 10].) Concerned about its jurisdiction, this Court
issued an Order on December 4, 2014, asking the parties to submit memoranda of law.
Notwithstanding the Court’s error, the zone-of-interests argument has now been briefed.
Contrary to plaintiff’s assertion, defendant did not waive this argument by failing to address it in
its motion to dismiss. See Fed. R. Civ. P. 12(h)(2) (explaining that Rule 12(b)(6) arguments can
be made in pleadings, by motion under Rule 12(c), or at trial). This Court will therefore address
the zone-of-interests question, even though it was not raised by defendant, as it should have
been, via Rule 12(b)(6).
11
interpretation” to assess “whether [plaintiff] has a cause of action under the statute.” Lexmark

Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387-88 (2014). The zone-of-

interests test “is not meant to be especially demanding.” Patchak, 132 S. Ct. at 2210 (quoting

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). “The test forecloses suit only when a

plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the

statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Id.

(quoting Clarke, 479 U.S. at 399).

Broadly stated, plaintiff is asserting that defendant used the F-1 nonimmigrant category

to circumvent the restrictions Congress placed on H-1B visas. In so doing, plaintiff argues that

defendant violated a number of statutes. The complaint alleges that the 2008 Rule “is in direct

conflict with the statutory requirements of 8 U.S.C. § 1101(a)(15)(F)(i) that aliens on student

visa[s] be bona fide students.” 2 (Compl. ¶ 164.) It also alleges that the 2008 Rule violates 8

U.S.C. § 1184(a), a general directive that, according to plaintiff, “requires DHS to ensure aliens

on student visas leave the country when they are no longer students.” (Id. ¶ 174.) Finally, the

complaint alleges that the “OPT regulations are in conflict with the statutory requirements for

foreign labor under 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n), [and] 1184(g)” because they

“deliberately circumvent the statutory caps on H-1B visas” and “authorize aliens to perform

labor without complying with and in violation of the labor certification and prevailing wage

requirements of the H-1B program.” (Id. ¶¶ 179-80.)

In light of these allegations, the Court disagrees with defendant’s assertion that plaintiff’s

complaint is limited solely to violations of F-1. Rather, plaintiff objects more broadly that

2
This quote, and several that follow, are from Counts I-III, which this Court previously
dismissed. But they apply with equal force to Count IX, which incorporates by reference all
previous allegations. (See Compl. ¶ 279.)

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defendant’s interpretation of F-1 indirectly violates other limitations set forth by Congress,

notably those related to H-1B visas. As such, it is proper to examine the zone of interests

protected by H-1B, as well as F-1. See Int’l Union of Bricklayers & Allied Craftsmen v. Meese,

761 F.2d 798, 804 (D.C. Cir. 1985) (looking to zone of interests protected by § 1101(a)(15)(H)

when plaintiff alleged that INS had attempted to circumvent that provision by issuing visas

pursuant to § 1101(a)(15)(B)). And, plaintiff is clearly within the zone of interests of H-1B and

its related statutes, which include many provisions designed to protect American labor. See 8

U.S.C. § 1182(n) (requiring employer certification that the H-1B nonimmigrant will be paid

prevailing market wages, that the employer will provide working conditions for the

nonimmigrant employee that will not adversely affect working conditions for the other workers,

and that there is not a strike at the place of employment); id. § 1184(g) (setting caps on H-1B

visas).

Defendant, citing the non-precedential Third Circuit decision in Programmers Guild, Inc.

v. Chertoff, 338 F. App’x 239 (3d Cir. 2009), objects that this Court should not consider H-1B

and related statutes in its zone-of-interest inquiry “because these statutes are not integrally

related to the statute under which the agency acted in allegedly violating the law.” (Def.’s ZOI

Mem. at 7.) The D.C. Circuit has explained that, “[i]n determining whether a petitioner falls

within the ‘zone of interests’ to be protected by a statute, ‘we do not look at the specific

provision said to have been violated in complete isolation[,]’ but rather in combination with

other provisions to which it bears an ‘integral relationship.’” Nat’l Petrochemical & Refiners

Ass’n v. EPA, 287 F.3d 1130, 1147 (D.C. Cir. 2002) (per curiam) (alteration in original) (quoting

Fed’n for Am. Immigration Reform, Inc. v. Reno (FAIR), 93 F.3d 897, 903 (D.C. Cir. 1996)). As

explained above, plaintiff alleges direct violations of H-1B. Beyond that, however, the Court

13
concludes that F-1 and H-1B are integrally related. The provisions are part of the same statute;

indeed, they are contained within a single subsection of the statute. See 8 U.S.C. § 1101(a)(15).

Even more important than the statute’s codification scheme, though, is the substantive

relationship between the provisions. F-1 is directed at students studying at an American

academic institution, including colleges and universities. See id. § 1101(a)(15)(F)(i). H-1B is

limited to individuals who have completed their bachelor’s degree. See id. § 1184(i)(1). As

such, F-1 and H-1B perform the interlocking task of recruiting students to pursue a course of

study in the United States and retaining at least a portion of those individuals to work in the

American economy. The 2008 Rule supports this interpretation. As DHS explained,

[m]any employers who hire F-1 students under the OPT program eventually file a
petition on the students’ behalf for classification as an H-1B worker in a specialty
occupation. If the student is maintaining his or her F-1 nonimmigrant status, the
employer may also include a request to have the student’s nonimmigrant status
changed to H-1B.

2008 Rule at 18,496.

In fact, DHS identified the problem with transitioning individuals from F-1 to H-1B as

the “cap gap,” which occurs when an F-1 student is the beneficiary of an approved H-1B visa,

but whose period of authorized stay expires before their designated H-1B employment start date.

See id. at 18,497. To remedy the cap gap, the 2008 Rule “extends the authorized period of stay,

as well as work authorization, of any F-1 student who is the beneficiary of a timely-filed H-1B

petition that has been granted by, or remains pending with, USCIS.” Id.; see 8 C.F.R. §

214.2(f)(5)(vi). In light of this tight connection between F-1 and H-1B, the Court concludes that

14
the provisions are integrally related and that it is appropriate to consider H-1B when measuring

the relevant zone of interests. 3

Defendant argues that finding an integral relationship between F-1 and H-1B “could

potentially provide standing to challenge almost every agency decision relating to the admission

of nonimmigrants, which would deprive the zone-of-interest requirement of all meaning.”

(Def.’s ZOI Mem. at 9 (citing FAIR, 93 F.3d at 903-04).) Not so. As this Court has explained,

F-1 and H-1B constitute a complementary statutory mechanism for attracting foreign students

and retaining those students after they complete their studies. The relationship between these

provisions is starkly evident from the 2008 Rule itself, which, while promulgated pursuant to F-

1, is concerned entirely with compensating for the deficiencies in H-1B. The Court doubts that

such a relationship exists between H-1B and many of the other nonimmigrant categories. See,

e.g., 8 U.S.C. § 1101(a)(15)(A)(i) (nonimmigrant status for diplomats); id. § 1101(a)(15)(I)

(representatives of foreign press); id. § 1101(a)(15)(T) (victims of human trafficking). As such,

this Court’s limited holding of a relationship between F-1 and H-1B does not implicate the

concerns raised in FAIR. See 99 F.3d at 904 (“Of course every immigration provision is in a

broad sense part of the framework of every other provision. But if that were enough, then every

provision constraining the admission of anyone under any circumstances . . . would be pertinent

in applying the zone-of-interests test to any provision.”).

3
The portion of the 2008 Rule at issue in this lawsuit further buttresses the notion that the two
provisions are integrally related. Defendant argues at length that Congress has acquiesced in
DHS’s interpretation that F-1 can cover students post-completion. As explained in Section III.C
infra, the Court agrees with this argument. Consequently, F-1 and H-1B apply to overlapping
populations of nonimmigrants. A point that defendant appears to endorse. (See Def.’s ZOI
Mem. at 9 (“The INA establishes a comprehensive scheme defining various nonimmigrant
categories, and many of these categories overlap in point of the subject matter regulated.”
(citation omitted)).) This overlap further establishes the integral relationship between F-1 and H-
1B.

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 Finally, even if this Court were to consider F-1 in isolation, it would find that plaintiff

falls within that statute’s zone of interests. First and foremost, the Court finds significant the use

of the word “solely” in the F-1 subsection. See 8 U.S.C. § 1101(a)(15)(F)(i) (requiring that the

alien “seek[] to enter the United States temporarily and solely for the purpose of pursuing such a

course of study”). The Court reads this limitation as an attempt by Congress to restrict F-1

student employment and to prevent aliens from using F-1 as a means to come to the United

States to work. Indeed, this view was espoused by the Commissioner of INS in his testimony

before Congress in 1975. See Review of Immigration Problems: Hearings Before the Subcomm.

on Immigration, Citizenship, and Int’l Law of the H. Comm. on the Judiciary, 94th Cong. 21

(1975) (statement of Hon. Leonard F. Chapman, Jr., Comm’r of INS) (“I emphasize the word

‘solely’ . . . as to emphasize that the effect of the law is that the student must come here solely to

pursue his education. That does not imply that he can come here with the expectation and

intention of working.”). Second, in 1990, Congress established a three-year pilot program to

permit F-1 students in good academic standing to work off-campus “in a position unrelated to the

alien’s field of study” for less than 20 hours a week. Immigration Act of 1990, Pub. L. No. 101-

649, § 221, 104 Stat. 4978, 5027. Congress required employers to attest that the alien and other

similarly situated workers were being paid prevailing wages. Id. Congress also mandated that,

by 1994, the Commissioner of INS submit a report on the program, including its “impact . . . on

prevailing wages of workers.” Id. The agency issued the report and ultimately recommended

against extending the program. (See Pl.’s Mem. of Law in Supp. of Prudential Standing [ECF

No. 21] (“Pl.’s ZOI Mem.”), App. at 9.) Among its concerns, the agency noted that “[t]here is

the potential for job competition between foreign students and local youth.” (Id. at 4.) It also

speculated that U.S. workers might be “clos[ed]” out of “selected occupations and jobs” by

16
“[n]etwork-based hiring” of foreign students. (Id. at 5.) Ultimately, the report concluded that

the “off-campus F-1 pilot program can have adverse consequences for some American workers.”

(Id. at 6.) Congress followed the report’s recommendation and let the program lapse. This pilot

program – and Congress’ decision to cancel it – makes clear that Congress is aware of and

concerned about the impact of F-1 student employment on the U.S. labor market. This

conclusion is unsurprising given that “[a] primary purpose in restricting immigration is to

preserve jobs for American workers.” 4 Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984). The

individuals in plaintiff’s organization are therefore “arguably within the zone of interests to be

protected” by F-1. Patchak, 132 S. Ct. at 2210 (internal quotation marks omitted).

III. STATUTORY AUTHORITY

A. STANDARD OF REVIEW

Plaintiff’s principal argument is that DHS exceeded its statutory authority by issuing the

2008 Rule. (See Pl.’s Mot. at 16-22.) As an initial matter, however, the parties disagree as to the

level of deference this Court should accord the agency’s actions. Plaintiff argues that “DHS

forfeited deference under Chevron because it failed to provide notice and comment for any of the

actions at issue” and urges this Court to apply the standard of review articulated in Skidmore v.

Swift & Co., 323 U.S. 134 (1944). (Pl.’s Mot. at 11.) Defendant counters that Chevron applies

because Congress delegated to DHS the “authority to speak with the force of law through

rulemaking.” (See Def.’s Opp. at 17.)

4
While it is true that the zone-of-interests test is concerned with the “particular provision of law
upon which the plaintiff relies,” see Bennett v. Spear, 520 U.S. 154, 175-176 (1997), the
Supreme Court’s recent Lexmark decision suggests that courts should consider the overall
purpose of the statute when interpreting the zone of interests for particular provisions. See
Permapost Prods. v. McHugh, 55 F. Supp. 3d 14, 26 n.6 (D.D.C. 2014).

17
 “Chevron deference is appropriate ‘when it appears that Congress delegated authority to

the agency generally to make rules carrying the force of law, and that the agency interpretation

claiming deference was promulgated in the exercise of that authority.’” Mayo Found. for Med.

Educ. & Research v. United States, 562 U.S. 44, 57 (2011) (quoting United States v. Mead

Corp., 533 U.S. 218, 226-27 (2001)). Contrary to plaintiff’s argument, the Supreme Court in

Mead held that, while notice and comment is “significant . . . in pointing to Chevron authority,

the want of that procedure . . . does not decide the case, for we have sometimes found reasons for

Chevron deference even when no such administrative formality was required and none was

afforded.” 533 U.S. at 230-31; accord Barnhart v. Walton, 535 U.S. 212, 221 (2002) (“[T]he

fact that the Agency previously reached its interpretation through means less formal than ‘notice

and comment’ rulemaking does not automatically deprive that interpretation of the judicial

deference otherwise its due.” (citation omitted)).

Congress has delegated substantial authority to DHS to issue immigration regulations.

This delegation includes broad powers to enforce the INA and a narrower directive to issue rules

governing nonimmigrants. See 8 U.S.C. § 1103(a)(1) (“The Secretary of Homeland Security

shall be charged with the administration and enforcement of [the INA] and all other laws relating

to the immigration and naturalization of aliens . . . .”); id. § 1103(a)(3) (“[The Secretary of

Homeland Security] shall establish such regulations; prescribe such forms of bond, reports,

entries, and other papers; issue such instructions; and perform such other acts as he deems

necessary for carrying out his authority under the provisions of [the INA].”); id. § 1184(a)(1)

(“The 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, including when he

deems necessary the giving of a bond with sufficient surety in such sum and containing such

18
conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or

upon failure to maintain the status under which he was admitted, . . . such alien will depart from

the United States.”).

The 2008 Rule was promulgated as an exercise of this delegated authority. The subject

matter of the 2008 Rule falls squarely within the ambit of § 1184(a)(1), and the Rule invokes that

statute in listing its sources of authority. See 2008 Rule at 18,954. The Rule was published in

the Federal Register, and the agency provided the public with a post-publication comment

period. Id. at 18,945; see Citizens Exposing Truth About Casinos v. Kempthorne, 492 F.3d 460,

467 (D.C. Cir. 2007) (“Although publication in the federal register is not in itself sufficient to

constitute an agency’s intent that its pronouncement have the force of law, where, as here, that

publication reflects a deliberating agency’s self-binding choice, as well as a declaration of

policy, it is further evidence of a Chevron-worthy interpretation.” (citation omitted)). Unlike the

Customs ruling letter in Mead, which was not binding as to third parties, the 2008 Rule was

clearly issued “with a lawmaking pretense in mind” and was intended to have “the force of law.”

533 U.S. at 233. As such, the Court concludes that Chevron deference is appropriate.

B. CHEVRON STEP ONE

Under Chevron step one, this Court must determine whether “Congress has ‘directly

addressed the precise question at issue.’” Mayo Found., 562 U.S. at 52 (quoting Chevron,

U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984)). “If the intent of Congress is clear, that is

the end of the matter; for the court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress.” Chevron, 467 U.S. at 842-43. Plaintiff argues that “[t]he term

student is not ambiguous.” (Pl.’s Mot. at 17.) Citing several dictionary definitions, plaintiff

contends that F-1 nonimmigrants engaging in post-completion OPT cannot be considered

19
students because “[t]hey are not attending schools.” (Id.) Plaintiff further contends that other

parts of the F-1 statute, such as the requirement that the student “enter the United States . . .

solely for the purpose of pursuing such a course of study,” demonstrate that the statute

“unambiguously define[s] a student as one who attends specific, approved schools.” (Id. at 18.)

In response, defendant argues that the statute is ambiguous in that it does not define the terms

“student” or “course of study,” and contends that this congressional silence leaves “an ambiguity

for the agency to resolve.” (Def.’s Mot. at 17.) Defendant also points out that “the agency has

long interpreted the foreign student provision to allow for employment of students during

practical training.” (Id. at 21.)

The Court agrees that the statute’s lack of a definition for the term “student” creates

ambiguity. As the Supreme Court said in Chevron, “if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is whether the agency’s answer is based on

a permissible construction of the statute.” 467 U.S. at 843. And, in the context of a tax statute,

the Supreme Court recently held that the word “student” was ambiguous with respect to medical

residents because “[t]he statute does not define the term ‘student,’ and does not otherwise attend

to the precise question whether medical residents are subject to FICA.” 5 Mayo Found., 562 U.S.

at 52.

This Court is not persuaded by plaintiff’s argument that the statutory context clarifies the

word “student.” To be sure, F-1 defines a nonimmigrant as a student “who seeks to enter the

5
Mayo is not dispositive of the present case because the medical residents were still participating
in “a formal and structured educational program,” even though the bulk of their time was spent
caring for patients. Mayo Found., 562 U.S. at 48. Interestingly, however, the statute at issue in
Mayo contained an additional qualification: the students were exempt from FICA taxes only if
they were “enrolled and regularly attending classes at [a] school, college, or university.” Id. at
49 (quoting 26 § 3121(b)(10) (2006 ed.)). The absence of such a qualifier in F-1 highlights the
ambiguous scope of the word “student” in § 1101(a)(15)(F)(i).

20
United States temporarily and solely for the purpose of pursuing such a course of study . . . at” an

approved academic institution. 8 U.S.C. § 1101(a)(15)(F)(i). However, as argued by defendant,

this clause could sensibly be read as an entry requirement. (Def.’s Opp. at 21 (“[T]he INA

definition of ‘student’ is only the definition of what is required to be proved at the time of

admission to obtain a student visa.”).) This reading is bolstered by Congress’ delegation of the

power to prescribe regulations related to a nonimmigrant’s duration of stay. See 8 U.S.C. §

1184(a)(1).

Moreover, several pieces of evidence indicate that Congress understood F-1 to permit at

least some period of employment. For example, as discussed in Section II supra, in 1990,

Congress implemented a pilot program that allowed F-1 students to work up to 20 hours per

week in a job unrelated to their field of study. See Immigration Act of 1990 § 221. And F-1

nonimmigrants are explicitly exempted from several wage taxes. See 26 U.S.C. §§ 3121(b)(19),

3306(c)(19); 42 U.S.C. § 410(a)(19). These statutory provisions lend credence to defendant’s

argument that the clause in F-1 – “solely for the purpose of pursuing such a course of study” –

does not foreclose employment. Since F-1 does not bar all foreign student employment, it is not

clear what employment the statute does permit. As such, the statute’s text is ambiguous as to

whether such employment may extend for a period of time after they complete their studies.

Dictionary definitions are similarly unhelpful in clarifying this statutory ambiguity. To

be sure, some definitions of the word “student” require school attendance. E.g., Student,

Ballentine’s Law Dictionary (3d ed. 2010) (“A person in attendance at a college or university.

One receiving instruction in a public or private school.”). Most, however, include broader

notions of studying and learning. E.g., Student, Merriam Webster’s Collegiate Dictionary (10th

ed. 1997) (“SCHOLAR, LEARNER, especially: one who attends a school . . . . One who studies:

21
an attentive and systematic observer.”); Student, Oxford English Dictionary (“A person who is

engaged in or addicted to study. . . . A person who is undergoing a course of study and

instruction at a university or other place of higher education or technical training.”),

http://www.oed.com (last visited Aug. 5, 2015). These definitions are unhelpful not only

because they are competing, but because they do not address the fundamental ambiguity

presented by this case. No one disputes that all F-1 aliens enter the United States as “students”

under any conceivable definition, since they must enroll at a qualifying academic institution.

The ambiguity is whether the scope of F-1 encompasses post-completion practical training

related to the student’s field of study. Neither dictionary definitions nor statutory context

resolves this issue. The Court concludes that the statute is ambiguous. 6

C. CHEVRON STEP TWO

The second step of Chevron asks whether the 2008 Rule “is a ‘reasonable interpretation’

of the enacted text.” Mayo Found., 562 U.S. at 58 (quoting Chevron, 467 U.S. at 844). This

Court must uphold the Rule unless it is “arbitrary, capricious, or manifestly contrary to the

statute.” Chevron, 467 U.S. at 844; see also Allied Local & Reg’l Mfrs. Caucus v. EPA, 215

F.3d 61, 71 (D.C. Cir. 2000) (“Under Chevron, we are bound to uphold agency interpretations as

long as they are reasonable – ‘regardless whether there may be other reasonable, or even more

reasonable, views.’” (quoting Serono Lab., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir.

1998))).

Defendant argues that Congress’ “longstanding acquiescence” in its interpretation

suggests its reasonableness. (Def.’s Mot. at 31.) In particular, it contends that federal agencies

6
This Court’s conclusion that F-1 is ambiguous is reinforced by Congress’ longstanding
acquiescence in DHS’s interpretation, discussed in Section III.C infra.

22
have interpreted F-1 to allow for post-completion practical training for over 60 years, and that

Congress has never abrogated that interpretation despite amending the statute multiple times.

(See id. at 21.) Plaintiff responds that Congress could not have acquiesced in DHS’s

interpretation of F-1 because that interpretation has frequently changed, and there is insufficient

evidence to establish that Congress was actually aware of the agency’s interpretation. (See Resp.

Br. in Supp. of Pl.’s Cross Mot. for Summ. Judgment or Judgment on the Administrative Record

[ECF No. 35] (“Pl.’s Opp.”) at 5-9.)

“[W]hen Congress revisits a statute giving rise to a longstanding administrative

interpretation without pertinent change, the congressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the interpretation is the one intended by Congress.”

Creekstone Farms Premium Beef, L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500 (D.C. Cir. 2008)

(alteration in original) (quoting Doris Day Animal League v. Veneman, 315 F.3d 297, 300 (D.C.

Cir. 2003)); see also Barnhart, 535 U.S. at 220 (“Court[s] will normally accord particular

deference to an agency interpretation of longstanding duration.” (internal quotation marks

omitted)); Lindahl v. OPM, 470 U.S. 768, 782 n.15 (1985) (“Congress is presumed to be aware

of an administrative or judicial interpretation of a statute and to adopt that interpretation when it

reenacts a statute without change.” (internal quotation marks omitted)). The D.C. Circuit has

cautioned, however, that the so-called “legislative reenactment” doctrine is of “little assistance”

when Congress has “simply enacted a series of isolated amendments to other provisions.” Public

Citizen, Inc. v. HHS, 332 F.3d 654, 668 (D.C. Cir. 2003). Moreover, there must be “some

evidence of (or reason to assume) congressional familiarity with the administrative interpretation

at issue.” Id. at 669.

23
 Since at least 1947, INS and DHS have interpreted the immigration laws to allow foreign

students to engage in employment for practical training purposes. See 12 Fed. Reg. at 5357 (“In

cases where employment for practical training is required or recommended by the school, the

district director may permit the student to engage in such employment for a six-month period

subject to extension for not over two additional six-month periods . . . .”). In 1952, Congress

overhauled the immigration laws with the Immigration and Nationality Act, which created the

modern category of student nonimmigrants. See Immigration and Nationality Act, Pub. L. No.

82-414, § 101(a)(15)(F), 66 Stat. 163, 168 (1952). INS continued to interpret the law to permit

foreign students to engage in practical training. 7 See, e.g., Special Requirements for Admission,

7
While the 1947 and 1973 regulations do not explicitly authorize post-completion practical
training, several pieces of evidence strongly suggest that these provisions allowed alien students
to engage in full-time, post-completion employment without simultaneously attending classes.
First, both the 1947 and 1973 regulations, in addition to permitting students to engage in
practical training, allowed students to work out of financial necessity, but only if the employment
would not interfere with the student’s ongoing course of study. See 12 Fed. Reg. at 5357; 38
Fed. Reg. at 35,426. The practical training subsections included no similar limitation. Second,
contemporary documents demonstrate an understanding that those practical training regulations
allowed full-time, post-completion employment. For example, in Matter of T-, 7 I. & N. Dec.
682 (B.I.A. 1958), the Board of Immigration Appeals noted that the “length of authorized
practical training should be reasonably proportionate to the period of formal study in the subject
which has been completed by the student” and that only in “unusual circumstances” would
“practical training . . . be authorized before the beginning of or during a period of formal study.”
Id. at 684; see also Matter of Yau, 13 I. & N. Dec. 75, 75 (B.I.A. 1968) (noting that an alien
student had been granted permission to engage in practical training after graduating); Matter of
Ibarra, 13 I. & N. Dec. 277, 277-78 (B.I.A. 1968) (same); Matter of Alberga, 10 I. & N. Dec.
764, 765 (B.I.A. 1964) (same). Moreover, a 1950 Report by the Senate Committee on the
Judiciary, in describing foreign student employment, stated that “practical training has been
authorized for 6 months after completion of the student’s regular course of study.” S. Rep. No.
81-1515, at 503 (1950). The Report also noted a “suggestion that the laws . . . be liberalized to
permit foreign students to take practical training before completing their formal studies.” Id. at
505. Similarly, a House Report from 1961 disclosed that, on April 24, 1959, the Department of
State, acting in concert with INS, issued a notice to its officers that “[s]tudents whom the
sponsoring schools recommend for practical training should be permitted to remain for such
purposes up to 18 months after receiving their degrees or certificates.” H.R. Rep. No. 87-721, at
15 (1961). Finally, in a 1975 statement to Congress on the subject of foreign students, the
Commissioner of INS noted that, although there “is no express provision in the law for an F-1
24
Extension, and Maintenance of Status, 38 Fed. Reg. 35,425, 35,426 (Dec. 28, 1973) (allowing

foreign students to secure employment “in order to obtain practical training . . . in his field of

study,” if such training “would not be available to the student in the country of his foreign

residence,” for a maximum of 18 months). And, at least as early as 1983, INS explicitly

authorized post-completion practical training. 8 Nonimmigrant Classes; Change of

Nonimmigrant Classification; Revision in Regulations Pertaining to Nonimmigrant Students and

the Schools Approved for Their Attendance, 48 Fed. Reg. 14,575, 14,586 (Apr. 5, 1983)

(allowing students to engage in practical training “[a]fter completion of the course of study”);

Retention and Reporting Information for F, J, and M Nonimmigrants; Student and Exchange

Visitor Information System (SEVIS), 67 Fed. Reg. 76,256, 76,274 (Dec. 11, 2002) (same).

Since 1952, Congress has amended the provisions governing nonimmigrant students on

several occasions. See Pub. L. No. 87-256, § 109(a), 75 Stat. 527, 534 (Sept. 21, 1961)

(allowing an F-1 nonimmigrant’s alien spouse and minor children to accompany him);

Immigration Act of 1990 § 221(a) (permitting F-1 nonimmigrants to engage in limited

employment unrelated to their field of study); Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, § 625, 110 Stat. 3009-546, 3009-699 (adding

limitations related to F-1 nonimmigrants at public schools); Enhanced Border Security and Visa

student to engage in employment,” such a student could engage in practical training on a full-
time basis for up to eighteen months. Review of Immigration Problems: Hearings Before the
Subcomm. on Immigration, Citizenship, and Int’l Law of the H. Comm. on the Judiciary, 94th
Cong. 21, 23 (1975) (statement of Hon. Leonard F. Chapman, Jr., Comm’r of INS).
8
To be sure, plaintiff is correct that the details of the practical training regulations have changed
over the decades. (Pl.’s Opp. at 6.) Notwithstanding these changes, however, INS and DHS
have, since 1947, consistently interpreted the immigration laws to permit post-completion
practical training. See supra note 7. Congress’ acquiescence in this longstanding interpretation
undercuts plaintiff’s argument that the word “student” unambiguously requires F-1
nonimmigrants to maintain ongoing enrollment in a school or university.

25
Entry Reform Act of 2002, Pub. L. No. 107-173, §§ 501-502, 116 Stat. 543, 560-63

(implementing monitoring requirements for foreign students); Pub. L. No. 111-306, § 1, 124

Stat. 3280, 3280 (Dec. 14, 2010) (amending F-1 with respect to language training programs).

During that time, Congress has also imposed various labor protections for domestic workers.

E.g., Immigration Act of 1990 § 205 (requiring a labor condition certification for H-1B

nonimmigrants from the employer attesting that the alien will be paid the prevailing wage and

that the alien’s employment will not adversely affect working conditions); id. § 221 (requiring a

similar certification for F-1 nonimmigrants working in a position unrelated to their field of

study); American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-

277, § 412, 112 Stat. 2681-641, 2681-642 (requiring employers of H-1B nonimmigrants to

certify that they “did not displace and will not displace a United States worker”).

Notwithstanding this legislative activity, Congress has never repudiated INS or DHS’s

interpretation permitting foreign students to engage in post-completion practical training.

This legislative history leads the Court to two conclusions. First, DHS’s interpretation of

F-1 – inasmuch as it permits employment for training purposes without requiring ongoing school

enrollment – is “longstanding” and entitled to deference. See Barnhart, 535 U.S. at 220.

Second, Congress has repeatedly and substantially amended the relevant statutes without

disturbing this interpretation. These amendments have not been “isolated.” Public Citizen, 332

F.3d at 668. The Immigration and Nationality Act of 1952, in particular, radically changed the

country’s immigration system. And, the Immigration Act of 1990 imposed a host of new

protections for domestic workers and explicitly authorized F-1 students to engage in certain

forms of employment. By leaving the agency’s interpretation of F-1 undisturbed for almost 70

26
years, notwithstanding these significant overhauls, Congress has strongly signaled that it finds

DHS’s interpretation to be reasonable.

Plaintiff objects that there is insufficient evidence to prove that Congress was aware of

DHS’s interpretation. (See Pl.’s Opp. at 7-9.) The Court disagrees. As an initial matter, as

explained above, DHS’s interpretation of F-1 clearly dates back to 1983, and likely to 1947. See

supra note 7. Congressional obliviousness of such an old interpretation of such a frequently

amended statute strikes this Court as unlikely. In any case, ample evidence indicates

congressional awareness. Congress’ 1990 amendment of the INA included a three-year pilot

program authorizing F-1 student employment for positions that were “unrelated to the alien’s

field of study.” Immigration Act of 1990 § 221(a). Considered in isolation, this provision is

perplexing – why would Congress only authorize foreign students to do work unrelated to their

schooling? The answer, of course, is that INS’s regulations already authorized student

employment related to the student’s field of study, and these regulations were explicit in

permitting post-completion employment. See 8 C.F.R. § 214.2(f)(10) (1989) (authorizing F-1

students to engage in “[p]ractical training prior to completion of studies” or “after completion of

studies” upon certification that “the proposed employment . . . is related to the student’s course

of study”). Moreover, in recommending against the continuation of the pilot program, the

Commissioner of INS specifically referenced post-completion practical training. (Pl.’s ZOI

Mem., App. at 10.)

Several other pieces of legislative history suggest that Congress was aware of the

practical training program. The program was described at length in a 1950 Senate Report, a

1961 House Report, and 1975 congressional testimony by the Commissioner of INS. See supra

note 7. In addition, the practical training program has been discussed during multiple

27
congressional hearings. E.g., Immigration Policy: An Overview: Hearing Before the Subcomm.

on Immigration of the S. Comm. on the Judiciary, 107th Cong. 15-16 (2001) (statement of

Warren R. Leiden, American Immigration Lawyers Assocation); Immigration Reform: Hearing

Before the Subcomm. on Immigration and Refugee Affairs of the S. Comm. on the Judiciary on S.

358 and S. 448, 101st Cong. 485-86 (1989) (statement of Frank D. Kittredge, President, National

Foreign Trade Council); Immigration Reform and Control Act of 1983: Hearings Before the

Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary on H.R.

1510, 98th Cong. 687, 695, 698 (1983) (statement of Billy E. Reed, Director, American

Engineering Association); Illegal Aliens: Hearings Before Subcomm. No. 1 of the H. Comm. on

the Judiciary, 92d Cong. 265-66 (1971) (statement of Sam Bernsen, Assistant Comm’r, INS).

The Court finds this evidence more than sufficient to demonstrate “congressional familiarity with

the administrative interpretation at issue.” See Public Citizen, 332 F.3d at 669.

Plaintiff makes several other arguments in an attempt to demonstrate that DHS’s

interpretation is unreasonable. First, it contends that DHS has “circumvent[ed] [H-1B’s]

statutory restrictions that rightfully should be applied” to college-educated labor. (Pl.’s Mot. at

20.) But H-1B – which applies to aliens seeking to work in a “specialty occupation,” 8 U.S.C. §

1101(a)(15)(H)(i)(b) – is far broader than the employment permitted by the OPT program.

DHS’s interpretation of the word “student” does not render any portion of H-1B, or its related

restrictions, surplusage. Congress has tolerated practical training of alien students for almost 70

years, and it did nothing to prevent a potential overlap between F-1 and H-1B when it created the

modern H-1B category in 1990. See Immigration Act of 1990 § 205(c). As such, the Court does

not believe that DHS’s interpretation is unreasonable merely because of its limited overlap with

H-1B.

28
 Plaintiff also contends that “[t]here is not a scintilla of a statutory authorization for DHS

to use student visas to remedy labor shortages.” (Pl.’s Mot. at 22.) The Court disagrees. DHS

has been broadly delegated the authority to regulate the terms and conditions of a

nonimmigrant’s stay, include its duration. See 8 U.S.C. § 1103(a); id. § 1184(a)(1). One of

DHS’s statutorily enumerated goals is to “ensure that the overall economic security of the United

States is not diminished by efforts, activities, and programs aimed at securing the homeland.” 6

U.S.C. § 111(b)(1)(F). Moreover, a significant purpose of immigration policy is to balance the

productivity gains that aliens provide to our nation against the potential threat to the domestic

labor market. Compare In re Griffiths, 413 U.S. 717, 719 (1973) (“From its inception, our

Nation welcomed and drew strength from the immigration of aliens. Their contributions to the

social and economic life of the country were self-evident, especially during the periods when the

demand for human resources greatly exceeded the native supply.”), with Sure-Tan, 467 U.S. at

893 (“A primary purpose in restricting immigration is to preserve jobs for American workers . . .

.”). Indeed, in its zone-of-interests memorandum, plaintiff argues that “the interest of

safeguarding American workers is inextricably intertwined with employment on F-1 student

visas.” (Pl.’s ZOI Mem. at 9.) The Court concurs. DHS’s consideration of the economic impact

of extending the OPT program does not render its interpretation unreasonable. 9

9
To be clear, at this stage the Court is only considering whether the agency’s interpretation of
the statute is unreasonable, not whether the agency’s regulation is substantively deficient under 5
U.S.C. § 706. See Council for Urological Interests v. Burwell, 2015 U.S. App. LEXIS 9867, at
*25 (D.C. Cir. June 12, 2015) (“[A]lthough Chevron’s second step sounds closely akin to plain
vanilla arbitrary-and-capricious style review, interpreting a statute is quite a different enterprise
than policy-making.” (internal quotation marks omitted)). In light of the holding in Section IV
infra, the Court withholds judgment on the issue of whether the agency has marshaled sufficient
evidence to support its rule.

29
 In light of Congress’ broad delegation of authority to DHS to regulate the duration of a

nonimmigrant’s stay and Congress’ acquiescence in DHS’s longstanding reading of F-1, the

Court concludes that the agency’s interpretation is not unreasonable.

IV. EMERGENCY RULEMAKING

DHS promulgated the 2008 Rule without notice and comment. In justifying this

decision, the agency cited 5 U.S.C. § 553(b), which allows an agency to dispense with the

notice-and-comment requirement “when the agency for good cause finds (and incorporates the

finding and a brief statement of reasons therefor in the rules issued) that notice and public

procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 2008 Rule

at 18,950. The agency explained that 30,205 F-1 students were on OPT status that would expire

between April 1 and July 31, 2008, that those students “will need to leave the United States

unless they are able to obtain an H-1B visa for FY09 or otherwise maintain their lawful

nonimmigrant status,” and that the 17-month extension “has the potential to add tens of

thousands of OPT workers to the total population of OPT workers in STEM occupations in the

U.S. economy.” Id. The agency concluded that it had good cause to issue the rule without notice

and comment because

[t]he ability of U.S. high-tech employers to retain skilled technical workers . . .
would be seriously damaged if the extension of the maximum OPT period to
twenty-nine months for F-1 students who have received a degree in science,
technology, engineering, or mathematics is not implemented early this spring,
before F-1 students complete their studies and, without this rule in place and
effective, would be required to leave the United States.

Id. Plaintiff disputes this conclusion, contending that none of the § 553(b) exemptions applies to

the 2008 Rule. (See Pl.’s Mot. at 23-27.)

This Court reviews an agency’s good-cause determination without deference. See

Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014). The D.C. Circuit has

30
“repeatedly made clear that the good cause exception ‘is to be narrowly construed and only

reluctantly countenanced.’” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012)

(quoting Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001)).

Determining whether notice and comment is impracticable “is an ‘inevitably fact-or-context

dependent’ inquiry.” 10 Sorenson, 755 F.3d at 706 (quoting Mid-Tex Elec. Coop. v. FERC, 822

F.2d 1123, 1132 (D.C. Cir. 1987)). In the past, the D.C. Circuit has “approved an agency’s

decision to bypass notice and comment where delay would imminently threaten life or physical

property.” Id.; see also Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004) (finding good cause

when rule was “necessary to prevent a possible imminent hazard to aircraft, persons, and

property within the United States”).

The Circuit has recently considered whether an economic crisis could sustain a good-

cause determination under § 553(b). In Sorenson, the Federal Communications Commission

bypassed notice and comment in promulgating rules imposing certification requirements on

hearing-impaired individuals receiving telephones with captioning capability. 755 F.3d at 704-

05. The rules were precipitated by the plaintiff distributing free captioning-enabled phones,

which in turn greatly increased the demand for captioning services that are subsidized by a

government-organized fund. Id. Although the D.C. Circuit would “not exclude the possibility

that a fiscal calamity could conceivably justify bypassing the notice-and-comment requirement,”

it found that the record before it was “simply too scant to establish a fiscal emergency.” Id. at

707. The Circuit noted that the administrative record did “not reveal when the Fund was

10
Defendant does not explicitly state that it was relying on the “impracticability” prong of §
533(b), but nowhere does it suggest that notice and comment would have been “unnecessary” or
“contrary to the public interest.” 5 U.S.C. § 553(b). All of its arguments revolve around the
purported urgency it faced in issuing the rule, which this Court takes to mean that the delay
inherent in giving notice and soliciting comment would have been impracticable.

31
expected to run out of money, whether the Fund would have run out of money before a notice-

and-comment period could elapse, or whether there were reasonable alternatives available to the

Commission.” Id.

To demonstrate the urgency of the situation it faced in issuing the 2008 Rule, DHS relied

principally on three sources: a 2008 report by the National Science Foundation titled Science and

Engineering Indicators, 2008 (“Indicators”) (Joint Appendix: Administrative Record Excerpts

[ECF No. 26] (“JA”) at 135-536 11); a 2005 report by the National Academy of Sciences titled

Rising Above the Gathering Storm: Energizing and Employing America for a Brighter Economic

Future (“Gathering Storm”) (JA at 1366-1803); and a collection of submissions from Members

of Congress and stakeholders in the technology industry. 12 (JA at 97-134.)

The Court has reviewed these materials and finds that they fail to demonstrate that the

2008 Rule was necessary to forestall a “fiscal emergency.” See Sorenson, 755 F.3d at 707. The

first problem is that the record does not establish the economic consequences of failing to

immediately issue the rule. The reports cited by the agency speak only in very general terms

about the importance of STEM workers to the U.S. economy. (See, e.g., Indicators at 158

(“Indicators of the shift toward knowledge-intensive economic activity abound. . . . Countries are

investing heavily in expansion and quality improvements of their higher education systems,

easing access to them, and often directing sizable portions of this investment to training in

science, engineering, and related S&T fields.”); id. at 172 (“The progressive shift toward more

11
The Court will use the administrative record’s numbering when citing the joint appendix.
12
DHS cited one additional study that does not appear in the joint appendix, which the Court has
also reviewed. Task Force on the Future of American Innovation, Measuring the Moment:
Innovation, National Security, and Economic Competitiveness (Nov. 2006),
http://www.innovationtaskforce.org/docs/Benchmarks%20-%202006.pdf.

32
knowledge-intensive economies around the world is dependent upon the availability and

continued inflow of individuals with postsecondary training to the workforce.”); id. at 338

(“Migration of skilled S&E workers across borders is increasingly seen as a major determinant of

the quality and flexibility of the labor force in most industrialized countries. . . . The United

States has benefited, and continues to benefit, from this international flow of knowledge and

personnel . . . .”); Gathering Storm at 1552 (“The biggest concern is that our competitive

advantage, our success in global markets, our economic growth, and our standard of living all

depends on maintaining a leading position in science, technology, and innovation. As that lead

shrinks, we risk losing the advantages on which our economy depends.”); id. at 1553 (“This

nation’s science and technology policy must account for the new reality and embrace strategies

for success in a world where talent and capital can easily choose to go elsewhere.”)) To be sure,

these quotations highlight the importance of science and technology to the U.S. economy as a

general matter. But nowhere do the reports contemplate the role of recent graduates with F-1

visas in sustaining the pace of innovation. And, they certainly do not consider the economic

impact of delaying the rule for however long it would have taken to solicit broader feedback via

notice and comment.

Defendant’s contention that notice and comment would have been impracticable is

further undercut by the fact that H-1B oversubscription is old hat. As defendant concedes,

“[f]rom the time the visa numbers allocated for the H-1B program were reduced . . . from

195,000 to 65,000 in fiscal year 2004, the H-1B program has been consistently oversubscribed.”

(Def.’s Mot. at 43 (citation omitted); see also 2008 Rule at 18,946 (noting that the H-1B limit

has been reached progressively earlier every year since 2004).) Presumably, at least some F-1

students had been unable to obtain an H-1B visa and were forced to leave the country for each of

33
the four years prior to the issuance of the 2008 Rule, but defendant gives no evidence that these

exits contributed to an economic crisis. 13 Moreover, the consistent H-1B oversubscription

should have made the economic consequences identified by defendant entirely predictable.

Indeed, much of the evidence before the agency had long been available to DHS. Bill Gates

testified before Congress on March 7, 2007 – 13 months before DHS issued the 2008 Rule –

about the shortage of H-1B visas. (JA at 106.) And the report relied on by DHS describing the

dangers to American competitiveness of losing STEM workers was published in 2005. (Id. at

1367.)

Defendant does not explain why it waited to initiate proceedings on this issue, and it has

not pointed to any changed circumstances that made the OPT extension suddenly urgent. The

Court therefore finds that DHS’s self-imposed deadline of April 2008 lacks support in the record.

DHS has thus failed to carry its burden to show that it faced an “emergency situation[],” Jifry,

370 F.3d at 1179, that exempted it from subjecting the 2008 Rule to notice and comment.

V. REMEDY

Plaintiff contends that “[t]he procedural defects of the OPT Rules are so great that

vacatur is the appropriate remedy.” (Pl.’s Reply at 8.) Defendant responds that, “because of the

13
The only items in the record that speak to the impact of the H-1B cap on economic
competitiveness are letters from interested stakeholders. For example, in a letter dated
November 15, 2007, Microsoft lamented the difficulty of obtaining H-1B visas for its employees,
noting that “[t]o compete globally . . . Microsoft . . . must have access to the talent it needs.” (JA
at 121.) Even these letters, however, do not articulate the immediate impact of failing to extend
OPT. Moreover, by failing to engage in notice-and-comment rulemaking, the record is largely
one-sided, with input only from technology companies that stand to benefit from additional F-1
student employees, who are exempted from various wage taxes. See 26 U.S.C. §§ 3121(b)(19),
3306(c)(19); 42 U.S.C. § 410(a)(19). Indeed, the 17-month duration of the STEM extension
appears to have been adopted directly from the unanimous suggestions by Microsoft and similar
industry groups. (See JA 115, 121, 125, 126.)

34
emergency situation invalidation would cause, the appropriate course of action would be an order

that holds any vacatur in temporary abeyance.” (Def.’s Opp. at 43.)

The “decision whether to vacate depends on the seriousness of the [rule’s] deficiencies

(and thus the extent of doubt whether the agency chose correctly) and the disruptive

consequences of an interim change that may itself be changed.” Comcast Corp. v. FCC, 579

F.3d 1, 8 (D.C. Cir. 2009) (alteration in original) (quoting Allied-Signal, Inc. v. Nuclear

Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)). “When an agency may be able

readily to cure a defect in its explanation of a decision, the first factor in Allied-Signal counsels

remand without vacatur.” Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir.

2009). In contrast, “[f]ailure to provide the required notice and to invite public comment – in

contrast to the agency’s failure . . . adequately to explain why it chose one approach rather than

another for one aspect of an otherwise permissible rule – is a fundamental flaw that ‘normally’

requires vacatur of the rule.” Id. at 199. With respect to the second Allied-Signal factor,

“[w]here the proverbial ‘egg has been scrambled and there is no apparent way to restore the

status quo ante,’ the Court may remand without vacating.” Defenders of Wildlife v. Jackson, 791

F. Supp. 2d 96, 118 (D.D.C. 2011) (quoting Sugar Cane Growers Coop. v. Veneman, 289 F.3d

89, 97-98 (D.C. Cir. 2002)). A middle ground embraced by several courts in this Circuit is to

vacate the challenged rule but to stay the vacatur for a period of time. E.g., Chamber of

Commerce of U.S. v. SEC, 443 F.3d 890, 909 (D.C. Cir. 2006) (“The Commission is in a better

position than the court to assess the disruptive effect of vacating the Rule’s two conditions. . . .

Therefore, the court will . . . withhold the issuance of its mandate . . . for ninety days.”); Indep.

U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847, 855 (D.C. Cir. 1987) (“In this case, we

vacate the rule because the Secretary’s omissions are quite serious . . . . Yet we exercise our

35
power to withhold issuance of our mandate [for six months], to avoid further disruptions in the

domestic market and to allow the Secretary to undertake further proceedings to address the

problems of the merchant marine trade.”); Anacostia Riverkeeper, Inc. v. Jackson, 713 F. Supp.

2d 50, 52 (D.D.C. 2010) (“Because remand without vacatur is inappropriate, . . . the Court will

vacate the challenged [rules], but will stay vacatur.”); Haw. Longline Ass’n v. Nat’l Marine

Fisheries Serv., 288 F. Supp. 2d 7, 12-13 (D.D.C. 2003).

The first Allied-Signal factor weighs heavily in favor of vacatur. Failure to provide

notice and invite public comment is a serious procedural deficiency that counsels against remand

without vacatur. Heartland, 566 F.3d at 199; see also Allina Health Servs. v. Sebelius, 746 F.3d

1102, 1110 (D.C. Cir. 2014) (“[D]eficient notice is a ‘fundamental flaw’ that almost always

requires vacatur.” (quoting Heartland, 566 F.3d at 199)). Indeed, defendant does not even

suggest such a remedy. (See Def.’s Opp. at 43-45.) However, the Court concludes that

immediate vacatur of the 2008 Rule would be seriously disruptive. In 2008, DHS estimated that

there were approximately 70,000 F-1 students on OPT and that one-third had earned degrees in a

STEM field. 2008 Rule at 18,950. While DHS has not disclosed the number of aliens currently

taking advantage of the OPT STEM extension, the Court has no doubt that vacating the 2008

Rule would force “thousands of foreign students with work authorizations . . . to scramble to

depart the United States.” (Def.’s Opp. at 44.) Vacating the 2008 Rule could also impose a

costly burden on the U.S. tech sector if thousands of young workers had to leave their jobs in

short order. The Court sees no way of immediately restoring the pre-2008 status quo without

causing substantial hardship for foreign students and a major labor disruption for the technology

sector. As such, the Court will order that the 2008 Rule – and its subsequent amendments – be

36
vacated, but it will order that the vacatur be stayed. 14 The stay will last until February 12, 2016,

during which time DHS can submit the 2008 Rule for proper notice and comment.

CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part both plaintiff’s

motion for summary judgment [ECF No. 25] and defendant’s motion for summary judgment

[ECF No. 27]. The Court will vacate the 17-month STEM extension described in the 2008 Rule,

73 Fed. Reg. 18,944 (Apr. 8, 2008), staying the vacatur until February 12, 2016, and will remand

to DHS for further proceedings consistent with this Memorandum Opinion. An Order consistent

with this Memorandum Opinion will be issued on this day.

/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge

Date: August 12, 2015

14
In light of this holding, the Court need not address plaintiff’s arguments that DHS acted
arbitrarily and capricious in promulgating the 2008 Rule and that DHS failed to follow the
correct procedure in amending the list of STEM disciplines. (See Pl.’s Mot. at 28-38.)

37