United States Court of Appeals, District of Columbia Circuit
September 27, 2019
from the United States District Court for the District of
Columbia (No. 1:15-cv-00615)
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
E. Goldfarb argued the cause and filed the brief for
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.
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.
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.
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. §
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.
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 ...