Summary
- In 1990, Congress set a 65,000 numerical cap for H-1B temporary foreign “specialty occupation” workers (largely encompassing workers in “STEM” occupations).
- Beginning in 1998, the H-1B cap began to be hit on a regular basis. Congress responded by twice raising the cap, but only temporarily, after which it returned to 65,000. The House Judiciary Committee explained that the increase “should be of relatively brief duration” because American college “students have been enticed” by “brightening opportunities in this boom or bust profession” and “Congress should not imperil the[ir] future careers ... by expanding the H-1B quota indefinitely”.
- At a D.C. dinner party in 2007, a Microsoft lobbyist asked DHS Secretary Michael Chertoff to issue a regulation (without notice and comment from the public) extending the time period under which foreign students could work for employers in the U.S. under the Optional Practical Training program after completing the coursework for their degrees, explaining that in light of the H-1B program’s “severely insufficient base annual cap”, “Microsoft ... must have access to the talent it needs” and “the Administration ... can take a simple, immediate step to help address this crisis: extend ... the period that students can work ... for OPT.”
- The Washington Alliance of Technology Workers (“Wash Tech”) alleges that “DHS [then] worked in secret with industry lobbyists to craft regulations implementing Microsoft’s scheme” and “[j]ust as Microsoft requested, DHS published the resulting 2008 OPT rule as an interim rule without notice and comment”.
- DHS’s 2008 rule extended OPT for STEM students for 17 months. DHS brazenly, unapologetically, contemptuously, and openly acted to subvert Congress’ objective of protecting American college students, stating that because Congress “has prohibited [DHS] from granting H-1B status to more than 65,000”, “[t]he inability of U.S. employers ... to obtain [such] status for highly skilled foreign students ... has adversely affected the[ir] ability ... to recruit and retain skilled workers”, that “the United States must be successful in the increasing international competition” for these workers, and “the oversubscription of the H-1B program makes [it] an uncertain prospect”, and that consequently the rule “will help ease this difficulty by adding an estimated 12,000 OPT students to the STEM-related workforce”.
- After a federal district court vacated the 2008 rule for failure to provide notice and an opportunity for the public to comment in a lawsuit brought by Wash Tech, DHS issued a final regulation in 2016 extending STEM OPT for 24 months.
- In 2022, the D.C. Circuit Court of Appeals upheld DHS’s new rule, finding it not to be arbitrary and capricious or unlawful. Wash Tech filed a petition for writ of certiorari with the U.S. Supreme Court last month, asking the nation’s highest court to review the case.
- The Center for Immigration Studies has filed an amicus curiae brief asking the Supreme Court to grant Wash Tech’s petition for writ of certiorari and review the D.C. Circuit’s appalling decision. While the Supreme Court only grants certiorari to a tiny percentage of the petitioners that seek review, the Center for Immigration Studies believes that the Wash Tech decision presents a particularly strong case for certiorari. The government apparently agrees, as it plans to respond to the petition in July before the Supreme Court — a right it often waives when it does not feel threatened.
Introduction
We didn’t just fall off the proverbial turnip truck. One of us (George Fishman) worked for Congress for close to three decades and knows that the executive branch doesn’t always strive to honor the spirit, or even the letter, of the law as written by Congress when single-mindedly pursuing an administration’s agenda. Sometimes, the statutes for which regulations are being written are just inconvenient truths to be locked away in the attic. But in all my (George’s) years, I never witnessed an agency so brazenly, so unapologetically, so contemptuously, and so openly subvert Congress’s will as did the Department of Homeland Security (DHS) with regard to its expansion of the Optional Practical Training (OPT) employment program for supposed foreign students. And this is not a partisan matter; while George worked for Republicans in Congress, it was the George W. Bush administration that did the deed. And while the Obama administration repeated the affront, it at least had the decency to obfuscate its motives and publicly honor the Constitution’s separation of powers. The Bush administration, not so much. It acted with clear contempt for Congress. If there is ever a Schoolhouse Rock 2.0, this sorry episode should be the screenplay for “How a Bill Becomes a Law, and Is then Gored”.
Here is the story, which the Center for Immigration Studies also recounts in our amicus curiae brief asking the Supreme Court to grant Wash Tech’s petition for writ of certiorari and review the D.C. Circuit Court of Appeals’ 2022 decision in Wash All. of Tech Workers v. DHS.
The H-1B Stings
The H-1B temporary (nonimmigrant) worker program allows employers to petition for foreign workers in specialty occupations requiring the “theoretical and practical application of a body of highly specialized knowledge, and ... attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation”. Congress fashioned the modern program, including a 65,000 annual numerical limitation on aliens who may be issued visas or otherwise provided status, in the Immigration Act of 1990.
The H-1B program has long been accused of negatively impacting American workers and students. Secretary of Labor Robert Reich stated in 1995 that:
Our experience with the practical operation of the H-1B program has raised serious concerns ... that what was conceived as a means to meet temporary business needs for unique, highly skilled professionals from abroad is, in fact, being used by some employers to bring in relatively large numbers of foreign workers who may well be displacing U.S. workers and eroding employers’ commitment to the domestic workforce. Some employers ... seek the admission of scores, even hundreds of [H–1B aliens], especially for work in relatively low-level computer-related and health care occupations. These employers include “job contractors,” some of which have a workforce composed predominantly or even entirely of H–1B workers, which then lease these employees to other U.S. companies or use them to provide services previously provided by laid off U.S. workers.
Even earlier, in 1993, 60 Minutes correspondent Lesley Stahl explored the use of the H–1B program by job contractors:
When any American company needs programmers, the body shops can often deliver employees all the way from Bombay for rates that are so cheap, Americans just across town can’t compete. This is an employment agreement between one foreign programmer and an India-based body shop .... [that] tells her she’ll be assigned to Hewlett-Packard in California, [and] that her salary ... [will] come[] to less than $20,000 a year — nowhere near what Hewlett-Packard would have to pay an American. But Hewlett-Packard never actually hired her; they merely made a deal with the body shop and paid the body shop a flat hourly rate. The companies have a built-in system of deniability. They take a “see no evil, hear no evil” approach. It’s the body shops that have all the responsibility because the foreign workers remain their employees. It’s the body shops that pick the programmers, then get them their visas and assign them to the American companies where they’ll work. It’s a way of insulating the American firms. As an executive told us, “We don’t want to know what the body shops are doing.”
The House Judiciary Committee noted in 1998 that “Numerous articles in major newspapers have documented employers laying off American workers and replacing them with H1B aliens — usually from job contractors or by outsourcing.”1 Such reports persist to this day. Julia Preston famously reported in the New York Times in 2015 that:
About 250 Disney employees were told in late October that they would be laid off. Many of their jobs were transferred to immigrants on [H-1B visas], who were brought in by an outsourcing firm based in India. Over the next three months, some Disney employees were required to train their replacements to do the jobs they had lost.
“I just couldn’t believe they could fly people in to sit at our desks and take over our jobs exactly,” said one former worker, an American in his 40s ... . “It was so humiliating to train somebody else to take over your job. I still can’t grasp it.”
Our colleague Elizabeth Jacobs writes that:
The second half of 2022 has not been kind to tech workers in Silicon Valley ... . [M]any U.S. tech companies … implement[ed] massive layoffs. Amazon and Meta, Facebook's parent company, are two of the most recent companies to announce plans to let go tens of thousands of workers, following big layoffs at other major American tech companies in recent weeks, including Salesforce, Twitter, and Google.
Troublingly, nearly all of these companies are major users of foreign work visas, including the H-1B visa.
In light of such allegations, it was hardly surprising that, as the House Judiciary Committee noted, “[i]n fiscal year 1997, the 65,000 cap was reached for the first time on September 1. In fiscal year 1998, [it] was reached on May 11.” I should explain that employers can petition for H-1B workers for a fiscal year (beginning on October 1 of the previous calendar year) starting on April 1 of the previous calendar year. In any event, Congress responded by increasing — temporarily — the H-1B cap for fiscal years 1999-2000 (to 115,000) and 2001 (to 107,500). The Judiciary Committee report explained the rationale for only a temporary increase:
It is in the nation’s interest that the quota for H-1B aliens be temporarily raised.
...
However, the increase ... should be of relatively brief duration. There will be a bumper crop of American college graduates skilled in computer science beginning in the summer of 2001. These students have been enticed into the field ... by the brightening opportunities in this boom or bust profession. [T]he opportunities spawned by a tight labor market are bringing fresh entrants into the field ... . [Any] labor shortage ... should not last past the graduation dates of these students. Thus, Congress should not imperil the[ir] future careers ... by expanding the H–1B quota indefinitely.
...
If a shortage exists at the end of th[e expansion] recommending a further increase ... Congress can then act.
...
The bill requires the GAO to submit to Congress ... report[s] on the high-technology/information technology labor market ... [and] on age discrimination ... [that] will aid future Congresses ... as to whether increased H–1B quotas will still be justified.2
The Senate Judiciary Committee report stated:
The current shortage of ... skilled personnel presents both a short-term and a long-term problem. The country needs to increase its access to skilled personnel immediately ... . However, to meet these needs over the long term, the American education system must produce more young people in key fields.
...
[The bill] addresses the long-term problem that too few U.S. students are entering and excelling in [STEM] fields in sufficient numbers. It contains measures to encourage more young people to study [in these fields].
In fiscal year 1999, the new 115,000 cap was itself reached on August 16. Congress responded by raising the cap — again temporarily — to 195,000 for fiscal years 2001-03, and again explained its rationale. The House Judiciary Committee report stated that: “Economic conditions may be quite different by 2003 and Congress should re-evaluate the H-1B program at that time. Additionally, the reports required [in 1998] will have been delivered ... and may contain information causing Congress to rethink the H–1B program.”3 The Senate’s rationale was similar to that in 1998.
In 2004, the cap fell back to 65,000. In the two decades since, Congress has never again increased it, despite constant entreaties by “Big Tech” and “Big Ed” (though DHS’s Office of the Inspector General did find that in 2005, U.S. Citizenship and Immigration Services (“USCIS”) exceeded the 65,000 cap by about 7,000 approved petitions by “mistake”.4
As the House Judiciary Committee also noted, “[i]n 2005, the [H-1B] cap was reached on October 1, 2004; in ... 2006 ... on August 10, 2005 ... in ... 2007 ... May 26, 2006 ... in ... 2008 ... April 2, 2007”.
Microsoft and DHS, enter stage right.
Microsoft’s Message to Michael (Chertoff)
The Economic Policy Institute reports that in fiscal year 2020, Microsoft was the fifth-largest user of H-1B visas. This would not include H-1B workers from job contractors.
Microsoft head lobbyist Jack Krumholtz attended a D.C. dinner party in 2007 at which DHS Secretary Michael Chertoff was also present. Krumholtz later wrote to Secretary Chertoff (see pp. 747a-753a here) saying that “I appreciated very much the chance to speak with you recently at the dinner that Ed and Debra Cohen hosted to discuss immigration reform issues”. Krumholtz went on to explain that “I am writing to follow up in more detail on the suggestion we briefly discussed for action that [DHS] can take easily and immediately ... to help address the H-1B visa shortage ... [by] extend[ing] the period of Optional Practical Training (“OPT”) ... beyond its current maximum of one year.”
What is OPT? No, Microsoft is not talking about other people’s money (though possibly their livelihoods). DHS regulations at the time provided that:
Practical training may be authorized to an F-1 student who has been lawfully enrolled on a full time basis, in a ... college, university, conservatory, or seminary for one full academic year ... . A student may be authorized 12 months of practical training, and becomes eligible for another 12 months of practical training when he or she changes to a higher educational level ... . An eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study. There are two types of practical training available:
...
A student may be granted authorization to engage in temporary employment for optional practical training:
(1) During the student’s annual vacation and at other times when school is not in session, if the student is currently enrolled, and is eligible for registration and intends to register for the next term or session;
(2) While school is in session, provided that practical training does not exceed 20 hours a week while school is in session; or
(3) After 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 (excluding thesis or equivalent) ... . A student must complete all practical training within a 14-month period following the completion of study. [Emphasis added.]
Krumholtz continued:
[I]t was wise of the [Bush] Administration, after Congress failed to move forward on comprehensive immigration reform, to commit to exploring changes it could make to strengthen the immigration system without congressional action. As part of the twenty-six point plan that you announced on August 10, 2007, DHS committed, along with the Department of Labor, to explore “potential administrative reforms to visa programs for the highly skilled.”… America’s talent crisis has reached emergency levels.
...
Our [read: Congress’] high-skilled immigration policies are blocking access to crucial foreign talent. With demand in [STEM] fields ... far surpassing the supply of American workers, America’s employers find themselves unable to get the people they need on the job. The H-1B program, with its severely insufficient base annual cap of 65,000 visas, is at the center of the problem.
...
Microsoft has long made it a top-level company priority to center its development work in the United States, and we have devoted a great deal of energy into trying to help shape the policy changes that would permit us to continue to do so. To compete globally, however, Microsoft — like other employers of the highly skilled across America — must have access to the talent it needs.
True reform of the H-1B program, of course, will require congressional action. Yet the Administration ... can take a simple, immediate step to help address this crisis: extend from twelve to twenty-nine months the period that students can work in their field of study for OPT. Today OPT exists solely by regulation; no statutory change is necessary to make this needed adjustment. The current regulations provide for OPT to last up to twelve months.
...
OPT can be extended quickly ... . [A] simple extension ... would provide tremendous relief in this emergency situation.
...
A commitment to extend OPT should be announced immediately, and a regulation effectuating the extension should be in place no later than next spring ... . We suggest that an interim regulation and comment period would be fully permissible under the Administrative Procedure Act [“APA”] and would facilitate the regulation being in place on time ... . An announcement now will give employers the assurance that, if they recruit on campus but lose the H-1B lottery, they will not have to lose their recruits and can again seek an H-1B for them when the next year’s supply becomes available.
In its petition for writ of certiorari, Wash Tech argues that Microsoft’s offer (threat?) went down as easy as a raw oyster with George W. Bush’s/Secretary Chertoff’s DHS, stating:
In 2007, Microsoft Corporation concocted a scheme to circumvent the H-1B quotas protecting American workers ... [in which] DHS [would] increase the duration of OPT by 17 months ... so that OPT could serve as a substitute for H-1B visas ... . DHS [then] worked in secret with industry lobbyists to craft regulations implementing Microsoft’s scheme ... . Just as Microsoft requested, DHS published the resulting 2008 OPT Rule as an interim rule without notice and comment.
Contempt for Congress, for American Workers, and for American Students
DHS’s 2008 interim final rule (“IFR”) extended by 17 months the permissible length of OPT employment following the completion of all required coursework for a STEM degree for aliens with F visas. DHS extended the length of OPT for the express and openly acknowledged purpose of circumventing the H-1B annual numerical limitation. I am not making this up. DHS let it all hang out in its preamble to the IFR, published in the Federal Register on April 8, 2008:
Congress ... has prohibited [DHS] from granting H–1B status to more than 65,000.
There is a significant amount of competition among employers of highly-skilled workers for the limited number of H-1B visas.
The inability of U.S. employers ... to obtain H-1B status for highly skilled foreign students ... has adversely affected the ability of U.S. employers to recruit and retain skilled workers and creates a competitive disadvantage.
...
[T]he United States must be successful in the increasing international competition for ... scientists and engineers. The employment-based immigrant visa ceiling makes it difficult for foreign students to stay ... permanently after their studies ... . [T]he oversubscription of the H-1B program makes obtaining even temporary work authorization an uncertain prospect. ... This rule will help ease this difficulty by adding an estimated 12,000 OPT students to the STEM-related workforce ... represent[ing] a significant expansion of the available pool of skilled workers.
...
Representatives of high-tech industries in particular have raised significant concerns that the inability of U.S. companies to obtain H-1B visas for qualified F-1 students in a timely manner continues to result in the loss of skilled technical workers.
...
Many F-1 students who graduated last spring will soon be concluding their 12-month periods of OPT. Unless employers for those students are able to obtain H-1B visas ... many of these students will need to leave the United States.
...
To avoid a loss of skilled students through the next round of H-1B filings ... DHS is implementing this initiative ... without first providing notice and the opportunity for public comment.
Regulatory smoking guns have rarely been this smoking hot. Only monumental hubris (or idiocy) could have led DHS to think it was a good idea to lay this out in the Federal Register for all to see.
OK, now we need to make a brief digression into administrative law. As during a rock band’s drum solo, this might be a good time to go the bathroom.
The Supreme Court ruled in 1983 that executive branch final agency action is arbitrary and capricious in violation of the Administrative Procedure Act “if the agency has relied on factors which Congress has not intended it to consider”. You don’t have to take a course in administrative law to know that subverting Congress’ statutory objective cannot possibly be a factor Congress wants federal agencies to consider when writing regulations. But let us put it in plain legal-ese for you. Alexander W. Resar perceptively writes that:
[Chevron deference depends on a] court agree[ing] that the set of aims an agency seeks to realize are a reasonable construal of the set of aims contained in the statute that Congress tasked that agency to implement ... . [W]hile generally implicit, the assessment of the reasonability of the agency's derivation of the aims ... is a precondition to an assessment of the ... [agency’s] means for the realization of those statutory aims.
Thus, the 2008 IFR was clearly arbitrary and capricious for not being a reasonable construal of the set of aims contained in the statute. Wash Tech took legal action against the IFR. After multiple judicial twists and turns (as Wash Tech tells the Supreme Court, “[t]his litigation’s Dickensian, 15-year procedural history stands in stark contrast to its complete lack of factual issues and the seemingly straightforward questions of law it presents”), in 2015 the District Court for the District of Columbia Circuit vacated the 2008 IFR on the basis of DHS’s failure to comply with the APA’s notice and comment requirement. However, the court stayed the vacatur to allow DHS to correct its noncompliance.
OK, please come back to your seats, the drum solo is over.
Following the district court’s decision, DHS published a new proposed rule in 2015 and then, following notice and comment, promulgated a final rule in 2016 (“2016 rule”) extending the STEM post-completion OPT period for 24 months (rather than 17):
A student may be granted authorization to engage in temporary employment for optional practical training:
...
After 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 (excluding thesis or equivalent) ... . A student must complete all practical training within a 14-month period following the completion of study, except that a 24-month extension ... does not need to be completed within such 14-month period.
By the time DHS issued the final rule, the Pew Research Center reported that more than twice as many aliens were being approved for OPT than for the H-1B program (about 257,000 compared to about 115,000 in 2016).
Strikingly, the 2016 rule completely abandoned, without any meaningful explanation, DHS’s justification for the 2008 IFR. DHS acted pretextually to avoid appearing to, as with the 2008 IFR, deliberately and openly subvert Congress’ objective of protecting American students when temporarily increasing the H-1B cap. In reality, DHS surely based its decision on the same factor, one that Congress could not have intended it to consider.
OK, but Wash Tech’s current lawsuit is not over the 2008 IFR, which was vacated, but over the 2016 rule. And the 2016 rule completely jettisoned DHS’s 2008 justification. So of what relevance is it for us to talk about the 2008 rule? Pretext, pretext, pretext.
Pretext
DHS’s proposed rule in 2015 didn’t even see the need to mention the fact that the department was totally abandoning its former justification for a STEM OPT extension. Someone should have filed a missing justification report. Well, actually, someone did — the late Michael Hethmon, senior counsel at the Immigration Reform Law Institute, submitted a comment on the proposed rule which questioned the unexplained disappearance. And DHS was forced to respond in the 2016 rule (that darned APA!):
One commenter stated that “[t]he [proposed rule] is procedurally and substantively arbitrary and capricious” because “DHS has entirely failed to provide a reasoned explanation of why its published policy rationale for the proposed rule has so fundamentally changed from ... the 2008 [IFR]... .” The commenter stated that DHS ... has justified the proposed rule by the need to continue and further enhance the educational benefit of the STEM OPT extension, while protecting STEM OPT students and U.S. workers.
...
The commenter ... requested that DHS explain “why its published policy rationale has changed” since 2008.
Hethmon also noted in his comment that:
[T]he brazen bad faith of the agency regulators is on display in its claim that the OPT STEM program provides “knowledge and skills” to the U.S. economy, when [it’s] stated purpose ... is purportedly to allow F-1 aliens the opportunity to acquire knowledge, skills, and experience, notably through occupational training pathways that are not open to similarly situated U.S. citizen STEM graduates.
DHS correctly but misleadingly responded that it “does not agree with the proposition that an agency’s decision to state new or revised reasons for its policy renders the agency’s policy arbitrary and capricious”. As the Supreme Court ruled in 2020, “[an] agency can ‘deal with the problem afresh’ by taking new agency action ... . An agency taking this route is not limited to its prior reasons.” (Emphasis in original.)
However, DHS had constructed a straw man. It can certainly learn from experience, account for changed realities, and newly realize a program’s benefits. What is improper is its total abandonment of a prior rationale with no reasoned explanation. As the Supreme Court ruled in 1996, “the mere fact that an agency interpretation contradicts a prior agency position is not fatal. [However, s]udden and unexplained change ... may be ‘arbitrary, capricious [or] an abuse of discretion[.]’”
DHS then attempted to mansplain:
[T]he policy rationale ... ha[s] changed based on a range of factors. [T]hese factors include the public comments received on the 2008 IFR and DHS’s assessment of the benefits provided by [its] 17-month STEM OPT extension ... . This assessment is informed by enduring national priorities, such as ... helping to ensure that the nation’s colleges and universities remain globally competitive in attracting international students in STEM fields and enhancing the United States’ economic, scientific, and technological sectors.
Yet, DHS completely failed to explain 1) which public comments occasioned it to abandon its 2008 rationale (even though such comments were nowhere mentioned in the proposed rule); 2) how its assessment of the benefits of the 17-month extension contributed to its abandonment of the prior rationale; and 3) why “enduring national priorities” caused the abandonment (as “enduring”, they were presumably also priorities in 2008).
The 2016 rule also noted that:
Some commenters ... suggest[ed] that DHS should infer from the H-1B category implicit limits on DHS’s legal authority to allow F-1 students to engage in practical training ... . [s]ome ... assert[ing] that DHS had no legal authority ... because it “circumvents” the [H-1B] statutory requirements ... [and] permits F-1 students to sidestep restrictions ... enacted by Congress.
DHS’s responded that the 2016 rule did “nothing to modify the congressionally established annual H-1B visa cap” and “disagree[d] that the ... extension is an attempt to circumvent the requirements of the H-1B visa program, including the cap”.
It is hard to take DHS’s second assertion seriously given its Microsoft-inspired justification for the 2008 IFR. As the Supreme Court explained in 2019, “we are ‘not required to exhibit a naiveté from which ordinary citizens are free’”.
DHS contended that “H-1B ... is a unique program designed to meet different policy objectives than those of the F-1 visa program or OPT”, despite the fact that the district court found that “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”.
Many students participate in STEM OPT precisely in order to “try out” for employers who could sponsor them for the H-1B program. They also participate in order to be able work in the U.S. should an H-1B slot not be available. As Microsoft's Krumholtz explained to Chertoff, employers have the same goal in mind:
This period of [OPT] employment is typically a crucial bridge to a more stable position in the American workforce through an H-1B visa. With this year’s historic H-1B cap crisis, however, OPT will expire long before it can bridge the gap to an H-1B ... . U.S. employers will lose recruits to competitors overseas. Soon, by necessity, U.S. jobs will follow. Extending OPT to twenty-nine months would permit U.S. employers to hire those students and keep them in service until longer-term visas become available.
In fact, almost half of all H-1B workers were previously foreign students. In 2021, DHS approved H-1B petitions for initial employment for 123,414 aliens — 58,042 (47 percent) of whom were changing from F status.
The 2016 rule also stated that H-1B occupations are “far broader than the employment permitted by the OPT program.” It is certainly true that not all H-1B “specialty occupations” qualify for STEM OPT. But the large majority of H-1B workers are employed in STEM OPT occupations. In 2021, 61.1 percent of approved H-1B petitions (initial employment) were in computer-related occupations, 9.5 percent in architecture/engineering/surveying, 3.5 percent in mathematics/physical sciences, and 2.6 percent in life sciences. Thus, at the very least, 75 percent are in STEM OPT occupations.
The 2016 rule did address comments regarding adverse effects on American workers: “The rule ... reflects DHS’s consideration of potential impacts on the U.S. labor market and includes important safeguards for U.S. workers in STEM fields.” But the rule’s OPT safeguards are, even in theory, less robust than those in the H-1B program — which themselves have been widely criticized as inadequate and failed to dissuade Congress from feeling compelled to cap the program to protect American students and workers. As to OPT safeguards, in early 2021, U.S. Immigration and Customs Enforcement (“ICE”) admitted that:
[ICE] ... must take bold action to ensure that the [OPT] programs operate in a manner that does not harm U.S. workers.
...
[ICE] is currently unable to evaluate the impact OPT has had on U.S. workers ... . To remedy this, [ICE] is ... develop[ing] a new unit ... dedicated full-time to compliance matters involving wage, hours, and compensation within OPT.
But only two weeks later (at the beginning of the Biden administration), ICE announced “the creation of a new unit is not necessary at this time”.
The 2008 IFR was arbitrary and capricious. What of the 2016 rule? Did DHS publicly abandon its 2008 rationale upon the belated realization that openly striving to subvert Congress’s intent was legally risky or because the Obama administration was more reticent about openly acknowledging a policy designed to satisfy “Big Tech”? In either case, because of DHS’s inability or unwillingness to provide a reasoned explanation for the abandonment, it is clear the 2016 rule’s stated rationale was pretextual.
And pretextual justifications can on that basis alone be arbitrary and capricious. After a district court had ruled (in an unrelated, non-immigration case) that an action of the secretary of Commerce “was arbitrary and capricious, based on a pretextual rationale”, in 2019 the Supreme Court “review[ed] the District Court’s ruling on pretext” and its “determination that [a] decision must be set aside because it rested on a pretextual basis”. The Court answered in the affirmative (at least to the extent that “[i]n these unusual circumstances, the District Court was warranted in remanding to the agency”, concluding that:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision ... . [H]ere the ... rationale — the sole stated reason — seems to have been contrived.
We are presented ... with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process ... . [W]e cannot ignore th[is] disconnect ... . The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise ... [and] judicial review [would become] an empty ritual.
DHS’s rationale for the 2016 rule was clearly pretextual, and without question should meet the same fate as did the Commerce secretary’s action.
In 2022, the D.C. Circuit ruled that DHS’s 2016 OPT rule was not arbitrary and capricious, despite it being a blatant attempt to subvert Congress’ goal of protecting American students when twice increasing only temporarily the numerical cap on the H-1B temporary worker program.
The court also came to the extraordinary conclusion that the requirements Congress set forth for the F program, and potentially for all other nonimmigrant programs, only apply during the visa-issuance process — meaning that participating aliens need not continue to comply with them once admitted to the U.S. This conclusion is in conflict with the precedent of the Supreme Court and multiple other Circuit Courts of Appeal and (unless overturned) will do fundamental harm to our legal immigration system, as our amicus brief explains in detail.
The D.C. Circuit’s decision has unsurprisingly caused great consternation. Eleven States, 31 members of the U.S. House, and five U.S. senators, are among the others who have filed amicus briefs with the Supreme Court supporting Wash Tech’s petition. The timing may be auspicious. The D.C. Circuit’s decision obviously relied on Chevron deference — which directs the courts to defer to minimally reasonable agency interpretations of ambiguous statutory provisions (which, as this case shows, in practice means very little as courts can easily find ways to classify provisions as ambiguous should it suit their needs). The Supreme Court, four decades after Chevron, agreed to reconsider that decision on the same day that Wash Tech filed its petition. We await the Supreme Court’s response.
End Notes
1 Transparency in Punditry Statement: George Fishman was the chief counsel of the House Judiciary Committee’s Subcommittee on Immigration and Claims at the time, and had a role in the drafting of this report.
2 Transparency in Punditry Statement: See endnote 1.
3 Transparency in Punditry Statement: See endnote 1.
4 Congress did provide that the cap does not apply to aliens employed at institutions of higher education or related or affiliated nonprofit entities, or at nonprofit or governmental research organizations, or to the first 20,000 aliens who have earned master’s or higher degrees from U.S. institutions of higher education.