Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Save Jobs USA v. United States Department of Homeland Security

United States Court of Appeals, District of Columbia Circuit

November 8, 2019

Save Jobs USA, Appellant
v.
United States Department of Homeland Security, Office of General Counsel, Appellee Anujkumar Dhamija, et al., Intervenors

          Argued September 27, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00615)

          John M. Miano argued the cause for appellant. With him on the briefs were Dale Wilcox and Michael Hethmon.

          Matthew J. Glover, Attorney, U.S. Department of Justice, argued the cause for appellee. On the brief were Glenn M. Girdharry, Assistant Director, and Joshua S. Press, Trial Attorney. Erez Reuveni, Assistant Director, entered an appearance.

          Carl E. Goldfarb argued the cause and filed the brief for intervenors.

          Paul W. Hughes, Michael B. Kimberly, Jason Oxman, Steven P. Lehotsky, Michael B. Schon, and Peter C. Tolsdorf were on the brief for amici curiae The Chamber of Commerce of the United States, et al. in support of appellees.

          Before: Tatel and Griffith, Circuit Judges, and Silberman, Senior Circuit Judge.

          OPINION

          TATEL CIRCUIT JUDGE

         Save Jobs USA, an association representing Southern California Edison workers, challenges a Department of Homeland Security rule that permits certain visa holders to seek lawful employment. The district court found that Save Jobs lacked Article III standing and granted summary judgment in the Department's favor. We reverse. For the reasons set forth in this opinion, we conclude that Save Jobs has demonstrated that the rule will subject its members to an actual or imminent increase in competition and that it therefore has standing to pursue its challenge.

         I.

         Our nation's immigration laws distinguish between two categories of foreign nationals seeking admission to the United States: "nonimmigrants," who plan to stay in the country only temporarily, and "immigrants," who plan to stay permanently. See 8 U.S.C. § 1184(b) ("Every alien . . . shall be presumed to be an immigrant until he establishes . . . that he is entitled to a nonimmigrant status . . . ."); id. § 1101(a)(15) (setting forth nonimmigrant classifications). The rule challenged here attempts to ease the burdens faced by certain nonimmigrants during their often-lengthy transition to immigrant status.

         The Immigration and Nationality Act authorizes the admission of nonimmigrants "to perform services . . . in a specialty occupation," id. § 1101(a)(15)(H)(i)(b), and those specialty workers' spouses, id. § 1101(a)(15)(H). Specialty workers admitted under this provision receive H-1B visas, which permit them to work in the occupation for which they were admitted. 8 C.F.R. § 214.2(h)(1)(i), (ii)(B). The specialty workers' spouses receive H-4 visas, which permit the spouses to reside in the United States but do not authorize them to work. Id. § 214.2(h)(9)(iv). Generally, H-1B visa holders and their H-4 spouses may reside in the country for a maximum of six years, after which time they must depart and remain abroad for at least one year before seeking to reenter in the same status. 8 U.S.C. § 1184(g)(4); 8 C.F.R. § 214.2(h)(13)(iii)(A).

         Although the H-1B visa permits its holder to remain in the United States only temporarily, an H-1B nonimmigrant may obtain a permanent resident visa-better known as a green card-through the employer-sponsored immigration process. Getting a green card takes a long time. An employer must first identify a job for which the H-1B visa holder will be permanently hired and then certify to the Secretary of Labor that (1) "there are not sufficient workers who are able, willing, qualified[, ] . . . and available" to fill the position; and (2) that the alien's employment "will not adversely affect the wages and working conditions" of "similarly employed" workers in the United States. 8 U.S.C. § 1182(a)(5)(A)(i). If the Secretary approves the certification, the employer then submits a so-called Form I-140 petition, which must be approved by the Department before the H-1B visa holder can change status. See id. § 1154(a)(1)(F), (b); 8 C.F.R. § 204.5(a). But even H-1B visa holders with approved Form I-140 petitions may be unable to adjust status because the Act limits the total number of available employment-based green cards. See 8 U.S.C. § 1151(d). The Act also specifies a per-country cap, further limiting the number of green cards available to individuals from the same country. See id. § 1152(a)(2). Once a country's cap is reached, applicants from that country must wait until more employment-based green cards become available.

         Recognizing the potential for delay in adjustment, Congress amended the Act to permit H-1B visa holders who have begun the employer-based immigration process to remain and work in the United States while awaiting decisions on their applications for lawful permanent residence. Under the amended Act and its implementing regulations, H-1B nonimmigrants with approved Form I-140 petitions who are unable to adjust status because of per-country visa limits may extend their H-1B stay in three-year increments until their adjustment of status applications have been adjudicated. See American Competitiveness in the Twenty-first Century Act of 2000, Pub. L. No. 106-313, § 104(c), 114 Stat. 1251, 1253 (codified at 8 U.S.C. § 1184 note); 8 C.F.R. § 214.2(h)(13)(iii)(E). In addition, H-1B visa holders who are the beneficiaries of labor certification applications or Form I- 140 petitions are eligible for recurring one-year extensions of H-1B status if 365 days have elapsed since the application or petition was filed. See American Competitiveness in the Twenty-first ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.