50 F.4th 164
D.C. Cir.2022Background
- DHS’s 2016 OPT Rule authorizes up to 12 months of post‑completion Optional Practical Training (OPT) for F‑1 students and a further 24‑month STEM extension, subject to school recommendation, employer training plans, DHS approval, and oversight/reporting requirements.
- The Executive Branch has authorized post‑coursework practical training for F‑1 (and predecessor) students since at least 1947; similar rules persisted under multiple administrations and were reflected in regulations and agency practice pre‑ and post‑1952 INA.
- Washtech (a labor organization) challenged the 2016 Rule as beyond DHS statutory authority and also argued DHS lacks any authority to authorize employment for nonimmigrants; district court granted summary judgment to DHS; D.C. Circuit affirmed in relevant part.
- The court analyzed DHS authority under 8 U.S.C. § 1184(a)(1) (time‑and‑conditions of nonimmigrant admission) with the F‑1 definition in 8 U.S.C. § 1101(a)(15)(F)(i) serving as the guiding constraint; it also addressed IRCA’s definition of “unauthorized alien,” 8 U.S.C. § 1324a(h)(3).
- The panel held Washtech had associational/competitor standing to sue and concluded (alternatively) that DHS’s interpretation is reasonable and entitled to Chevron deference; it affirmed the district court’s grant of summary judgment to DHS and denied Washtech’s motion to strike an amicus brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS has statutory authority under §1184(a)(1) to authorize post‑graduation OPT | Washtech: F‑1 definition limits stay to pursuing study; post‑graduation OPT exceeds DHS time‑and‑conditions power | DHS: §1184(a)(1) empowers regulation of time and conditions of nonimmigrants; F‑1 guides but does not exhaustively fix duration | Court: §1184(a)(1) authorizes OPT; Rule reasonably relates to F‑1 visa purpose and is lawful |
| Whether the F‑1 visa definition precludes post‑coursework OPT | Washtech: F‑1’s “temporarily and solely for the purpose of pursuing such a course of study” imposes a bright‑line graduation limit | DHS: F‑1 sets entry criteria and constrains but does not delimit all post‑entry time/conditions; agencies may define reasonable related conditions | Court: F‑1 guides DHS rulemaking; it does not bar limited post‑graduation practical training overseen and recommended by schools |
| Whether DHS may authorize employment at all for nonimmigrants (IRCA §1324a(h)(3)) | Washtech: §1324a(h)(3) does not itself grant broad delegation to authorize employment; such delegation would raise nondelegation/major‑questions concerns | DHS: IRCA recognizes aliens may be “authorized to be so employed . . . by the Attorney General” (now DHS); Congress has long acquiesced to agency work‑authorization practice | Court: IRCA acknowledges regulatory authorization; DHS may authorize employment as a condition of nonimmigrant admission |
| Standing and procedural objections (amicus brief/motion to strike) | Washtech: Members not current job‑seekers; amicus brief impermissibly supplements record | DHS/Intervenors: members are current market participants; amicus provided helpful perspective and did not prejudice record | Court: Washtech has competitor associational standing; district court did not abuse discretion denying motion to strike |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (agencies get deference when statute ambiguous and agency interpretation is reasonable)
- Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) (agency actions need only be reasonably related to statutory duties)
- Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977) (visa definitions set entry criteria, not post‑entry controls)
- Wash. All. of Tech. Workers v. DHS, 892 F.3d 332 (D.C. Cir. 2018) (earlier panel opinion on standing and reopening doctrine)
- NLRB v. Bell Aerospace Co. Div. of Textron, 416 U.S. 267 (1974) (recognizing deference to longstanding agency practices)
- CFTC v. Schor, 478 U.S. 833 (1986) (congressional inaction can indicate acquiescence to administrative interpretation)
- Pierce v. Underwood, 487 U.S. 552 (1988) (reenacted statutory language can carry settled administrative interpretations)
- West Virginia v. EPA, 142 S. Ct. 2587 (2022) (major‑questions framework requiring clear congressional authorization for extraordinary regulatory assertions)