United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued November 10, 2022 Decided June 27, 2023 No. 22-5074 ITSERVE ALLIANCE, INC., APPELLANT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:20-cv-03855) Geoffrey Forney argued the cause and filed the briefs for appellant. Joshua S. Press, Senior Litigation Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Colin A. Kisor, Deputy Director, and Glenn M. Girdharry, Assistant Director. John M. Miano was on the brief for amicus curiae Immigration Reform Law Institute and U.S. Tech Workers in support of appellee. 2 Before: KATSAS and PAN, Circuit Judges, and TATEL, Senior Circuit Judge. Opinion for the Court by Circuit Judge KATSAS. KATSAS, Circuit Judge: The H-1B visa program allows foreign nationals to work in the United States in specialized positions for sponsoring employers. By regulation, any such employer must file amended paperwork with the United States Citizenship and Immigration Services whenever it makes a “material change” in the terms of covered employment. In Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015), USCIS interpreted that phrase to include a change in the place of employment. And in an ensuing guidance document, USCIS memorialized this interpretation and exercised discretion to limit its retroactive enforcement. ITServe Alliance, Inc., a trade association representing employers, seeks a declaratory judgment that Simeio and the guidance document are unlawful. ITServe contends that Simeio was a procedurally defective rulemaking and that USCIS lacks statutory authority to require the amended filings. We hold that ITServe has Article III standing to raise these arguments, but we reject them on the merits. I A The Immigration and Nationality Act sets forth conditions for foreign nationals to receive visas allowing entry into the United States. 8 U.S.C. § 1201(a)(1). An H-1B visa allows an alien to work for a sponsoring employer in a specialty occupation, id. § 1101(a)(15)(H)(i)(b), which is one that requires at least a bachelor’s degree, or its equivalent, in the specific specialty, id. § 1184(i)(1)(B). 3 Before an alien can obtain an H-1B visa, the sponsoring employer must file a Labor Condition Application (LCA) with the Department of Labor. 8 U.S.C. § 1182(n)(1). The application must specify job details such as the proposed occupation, place of employment, and wage rate. Id. § 1182(n)(1)(A), (D). The employer must promise to pay the higher of either (I) the actual wage that it pays to similarly skilled employees or (II) the prevailing wage for such employees in the local area. Id. § 1182(n)(1)(A)(i). Unless the application is “incomplete or obviously inaccurate,” Labor must approve it within seven days. Id. § 1182(n)(1)(G)(ii). The employer then must petition USCIS to classify its prospective employee as eligible for an H-1B visa. 8 U.S.C. § 1184(c)(1). 1 The petition “shall be determined by” USCIS, “after consultation” with the Department of Labor. Id. The petition …
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