Washington Alliance of Technology Workers v. DHS

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 20, 2018 Decided June 8, 2018 No. 17-5110 WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, APPELLANT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-01170) John M. Miano argued the cause and filed briefs for the appellant. Dale L. Wilcox and Michael M. Hethmon entered appearances. Scott G. Stewart, Attorney, United States Department of Justice, argued the cause for the appellees. Glenn M. Girdharry and Erez Reuveni, Assistant Directors, and Joshua S. Press, Trial Attorney, were with him on the brief. Before: HENDERSON, Circuit Judge, and EDWARDS and GINSBURG, Senior Circuit Judges. Opinion for the Court filed by Circuit Judge HENDERSON. 2 KAREN LECRAFT HENDERSON, Circuit Judge: The Washington Alliance of Technology Workers (Washtech), a union representing workers throughout the country in the Science, Technology, Engineering and Mathematics (STEM) labor market, challenges United States Department of Homeland Security (DHS) regulations that allow nonimmigrant aliens temporarily admitted to the country as students to remain in the country for up to three years after finishing a STEM degree to pursue work related to their degree. Washtech’s complaint alleged that the regulations exceed their statutory authority, suffer from multiple procedural deficiencies and are arbitrary and capricious. The district court dismissed Washtech’s complaint in full, relying on a mixture of grounds—standing; failure to state a plausible claim for relief; and a deficient opposition to the DHS’s motion to dismiss—depending on the precise claim at issue. As detailed below, we affirm in part and reverse and remand in part. I. BACKGROUND The Immigration and Nationality Act of 1952 (INA), 8 U.S.C. §§ 1101 et seq., authorizes the DHS to admit certain classes of nonimmigrant aliens. Nonimmigrant aliens are foreign nationals who enter the country for fixed, temporary periods of time pursuant to a visa. The F-1 student visa authorizes admission of “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 . . . a course of study . . . at” certain academic institutions, including colleges and universities. 8 U.S.C. § 1101(a)(15)(F)(i). The Congress provided that “admission to the United States of any alien as a nonimmigrant shall be for such time 3 and under such conditions as the” DHS Secretary 1 “may by regulations prescribe.” Id. § 1184(a)(1). The DHS has three times—in 1992, 2008 and 2016—promulgated regulations that allow nonimmigrant aliens with student visas to remain in the country after finishing their degree to participate in the workforce for a specified period of time. See Wash. All. of Tech. Workers v. DHS, 857 F.3d 907, 909–10 (D.C. Cir. 2017). A. 1992 Regulation In 1992, the DHS promulgated a regulation that established an “optional practical training” (OPT) program for a nonimmigrant ...

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