International Internship Prog v. Janet Napolitano
718 F.3d 986
D.C. Cir.2013Background
- International Internship Program (IIP) runs a cultural-exchange program placing Asian participants in U.S. schools; participants seek Q-1 visas approved by USCIS.
- USCIS regulations require a Q-1 program to have a “work component” and that the employer offer “wages and working conditions comparable to those accorded local domestic workers similarly employed.” 8 C.F.R. § 214.2(q).
- Beginning in 2010 USCIS denied several of IIP’s Q-1 petitions because IIP does not pay participants, and USCIS read the statute and regulation to require payment of wages.
- IIP conceded it pays no wages and challenged USCIS’s interpretation as inconsistent with the statute and regulation, and also argued procedural challenges under the Regulatory Flexibility Act (RFA) and the APA notice-and-comment requirements.
- The District Court upheld USCIS’s denials; the D.C. Circuit affirmed, concluding the statute and regulation are best read to require wages and that the denials were informal adjudications not triggering RFA or APA notice-and-comment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute permits unpaid Q-1 participants | IIP: statute allows unpaid foreign interns if comparable unpaid domestic interns exist | USCIS: statute’s use of “employed,” “wages,” and “workers” requires payment of wages | Court: statute best read to require wages for Q-1 participants |
| Whether the regulation permits unpaid participants | IIP: regulation’s language can accommodate unpaid participants if domestic peers are unpaid | USCIS: regulation’s references to “employer,” “wages,” “workers,” and “remunerate” require wages | Court: regulation similarly requires payment of wages comparable to local workers |
| Whether Chevron deference is necessary/applicable | IIP: agency interpretation should be reviewed deferentially | USCIS: agency interpretation entitled to deference (argued) | Court: resolved on statutory reading; did not decide Chevron applicability |
| Whether RFA/APA notice-and-comment applied to USCIS denials | IIP: agency failed to follow RFA and APA procedural requirements | USCIS: denials were informal adjudications, not rulemaking, so RFA/APA notice-and-comment not triggered | Court: denials were informal adjudications; RFA and APA notice-and-comment did not apply |
Key Cases Cited
- Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) (mootness doctrine: capable of repetition yet evading review)
- Nader v. Democratic Nat'l Committee, 567 F.3d 692 (D.C. Cir. 2009) (affirming on alternative grounds)
- United States v. Mead Corp., 533 U.S. 218 (2001) (Chevron deference framework discussion)
- Central Texas Tel. Coop., Inc. v. FCC, 402 F.3d 205 (D.C. Cir. 2005) (distinguishing adjudication from rulemaking for APA/RFA purposes)
- Syncor Int'l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) (agency adjudication vs. rulemaking analysis)