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USCA Case #16-5287 Document #1781782 Filed: 04/08/2019 Page 1 of 54

ORAL ARGUMENT NOT YET SCHEDULED

No. 16-5287

IN THE UNITED STATES COURT OF APPEALS


FOR THE DISTRICT OF COLUMBIA CIRCUIT

SAVE JOBS USA,


Plaintiff-Appellant

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY


Defendant-Appellee.

ON APPEAL FROM AN ORDER ENTERED IN THE


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
1:15-cv-615
The Hon. Tanya S. Chutkan

BRIEF OF IMMIGRATION VOICE, ANUJKUMAR DHAMIJA, AND


SUDARSHANA SENGUPTA, INTERVENORS FOR APPELLEE

Carl E. Goldfarb Lisa Lehner


EVAN EZRAY AMERICANS FOR IMMIGRANT JUSTICE
JOHNATHAN LOTT 6355 NW 36th Street
BOIES SCHILLER FLEXNER LLP Suite 2201
401 E. Las Olas Blvd. Miami, FL 33166
Ft. Lauderdale, FL 33301 (305) 573-1106
(954) 356-0011
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

(A) Parties and Amici. Except for the following, all parties, intervenors,

and amici appearing in this court are listed in the Brief for Appellant:

• Intervenor-Appellee: Immigration Voice

• Intervenor-Appellee: Anujkumar Dhamija

• Intervenor-Appellee: Sudarshana Sengupta

(B) Rulings under Review. References to the ruling at issue appear in the

Brief for Appellant.

(C) Related Cases. There are no related cases.

(D) Corporate Disclosure Statement. Immigration Voice is a national,

nonprofit 501(c)(4) organization working to alleviate difficulties faced by legal high-

skilled immigrants in the United States. Immigration Voice does not have a parent

corporation, and there is no publicly-held corporation that owns 10% or more of its

stock.

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ................................................................................... iv

GLOSSARY OF ABBREVIATIONS .......................................................................x

STATUTES AND REGULATIONS ...................................................................... xii

ISSUES PRESENTED FOR REVIEW .....................................................................1

STATEMENT OF THE CASE ..................................................................................1

I. STATUTORY AND REGULATORY BACKGROUND ..............................3

II. PROCEDURAL HISTORY ............................................................................5

SUMMARY OF ARGUMENT .................................................................................6

STANDARD OF REVIEW .......................................................................................8

ARGUMENT .............................................................................................................8

I. SAVE JOBS LACKS STANDING .................................................................8

II. INTERVENORS HAVE STANDING BECAUSE THEY WILL


SUFFER INJURY IF THE RULE AT ISSUE IS INVALIDATED .............11

III. THE COURT SHOULD NOT CONSIDER THE STATUTORY


QUESTION ...................................................................................................13

IV. IN ANY EVENT, THE SECRETARY HAS AUTHORITY TO ISSUE


THE H-4 RULE .............................................................................................13

A. The Text of the INA Provides the Secretary with Authority to


Issue Work Authorizations ..................................................................13

B. The History of the INA Confirms That the Secretary Has Authority
to Issue Work Authorizations ..............................................................18

C. Save Jobs’ Statutory Arguments Lack Merit ......................................26

D. To the Extent the INA is Ambiguous, Deference Supports the H-4


Program ...............................................................................................29
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E. Save Jobs’ Remaining Extra-Textual Arguments Lack Merit ............34

CONCLUSION ........................................................................................................38

CERTIFICATE AS TO PARTIES ..........................................................................39

CERTIFICATE OF COMPLIANCE .......................................................................40

CERTIFICATE OF SERVICE ................................................................................41

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TABLE OF AUTHORITIES

Page(s)
Cases
Acree v. Republic of Iraq,
370 F.3d 41 (D.C. Cir. 2004) .................................................................................8

Alexander v. Sandoval,
532 U.S. 275 (2001) .............................................................................................12

Arizona Dream Act Coal. v. Brewer,


757 F.3d 1053 (9th Cir. 2014) .............................................................................14

Arizona v. United States,


567 U.S. 387 (2012) ...................................................................................... 17, 37

Barnhart v. Peabody Coal Co.,


537 U.S. 149, (2003) ............................................................................................30

Barnhart v. Walton,
535 U.S. 212 (2002) .............................................................................................18

Batalla Vidal v. Nielsen,


279 F. Supp. 3d 401 (E.D.N.Y. 2018) .......................................................... 34, 35

Bell v. Hood,
327 U.S. 678 (1946) .............................................................................................13

Bennett v. Spear,
520 U.S. 154 (1997) .............................................................................................15

Catawba County v. EPA,


571 F.3d 20 (D.C. Cir. 2009) ...............................................................................31

Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,


511 U.S. 164 (1994) .............................................................................................32

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,


467 U.S. 837 (1984) ...................................................................................... 30, 33

Commodity Futures Trading Comm’n v. Schor,


478 U.S. 833 (1986) .............................................................................................24

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Counterman v. U.S. Dept. of Labor,


607 F. Supp. 286 (W.D. Tex. 1985) ....................................................................20

Creekstone Farms Premium Beef, L.L.C. v. Dep’t of Agric.,


539 F.3d 492 (D.C. Cir. 2008) ...................................................................... 18, 31

De Canas v. Bica,
424 U.S. 351 (1976) .............................................................................................19

Diaz v. INS,
648 F. Supp. 638 (E.D. Cal. 1986) ......................................................................22

Fund For Animals, Inc. v. Norton,


322 F.3d 728 (D.C. Cir. 2003) ...................................................................... 11, 12

Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .............................................................................................16

Hoffman Plastic Compounds, Inc. v. NLRB,


535 U.S. 137 (2002) ...................................................................................... 21, 33

Home Care Ass’n of Am. v. Weil,


799 F.3d 1084 (D.C. Cir. 2015) ...........................................................................32

In re Sealed Case,
552 F.3d 841 (D.C. Cir. 2009) .............................................................................11

Int’l Longshoremen’s & Warehousemen’s Union v. Meese,


891 F.2d 1374 (9th Cir. 1989) .............................................................................36

Int’l Union of Bricklayers & Allied Craftsmen v. Meese,


616 F. Supp. 1387 (N.D. Cal. 1985) ....................................................................36

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,


101 F.3d 145 (D.C. Cir. 1996) ...............................................................................8

Marx v. Gen. Revenue Corp.,


568 U.S. 371 (2013) .............................................................................................30

Mathews v. Diaz,
426 U.S. 67 (1976) ...............................................................................................16

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Mourning v. Family Publ’ns Serv.,


411 U.S. 356 (1973) .............................................................................................17

Narenji v. Civiletti,
617 F.2d 745 (D.C. Cir. 1979) .............................................................................28

Nat’l Ass’n for the Advancement of Colored People v. Trump,


315 F. Supp. 3d 457 (D.D.C. 2018) .....................................................................34

Pension Benefit Guaranty Corp. v. LTV Corp.,


496 U.S. 633, (1990) ............................................................................................32

Perales v. Casillas,
903 F.2d 1043 (5th Cir. 1990) .............................................................................15

Petties v. D.C.,
227 F.3d 469 (D.C. Cir. 2000) .............................................................................12

Piwowarski v. Green,
No. 05-7174, 2006 WL 3798908 (D.C. Cir. Oct. 4, 2006) ........................... 10, 11

Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec.,


908 F.3d 476 (9th Cir. 2018) .................................................................. 31, 34, 35

Republic of Iraq v. Beaty,


556 U.S. 848 (2009) ...............................................................................................8

Rodriguez v. United States,


480 U.S. 522 (1987) .............................................................................................36

Sargeant v. Dixon,
130 F.3d 1067 (D.C. Cir. 1997) ...........................................................................12

Save Jobs USA v. U.S. Dep’t of Homeland Sec.,


210 F. Supp. 3d 1 (D.D.C. 2016) ...........................................................................5

Saxbe v. Bustos,
419 U.S. 65 (1974) ...............................................................................................36

Sebelius v. Auburn Reg’l Med. Ctr.,


568 U.S. 145 (2013) .............................................................................................25

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Sherley v. Sebelius,
689 F.3d 781 (D.C. Cir. 2010) .............................................................................12

Steel Co. v. Citizens for a Better Environment,


523 U.S. 83 (1998) ...............................................................................................13

Texas Dept. of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc.,
135 S. Ct. 2507 (2015) .........................................................................................23

Texas v. United States,


809 F.3d 134 (5th Cir. 2015) ............................................................ 29, 33, 34, 37

United States v. Chen,


2 F.3d 330 (9th Cir. 1993) ...................................................................................14

United States v. Mead Corp.,


533 U.S. 218 (2001) .............................................................................................30

United States v. Menasche,


348 U.S. 528 (1955) .............................................................................................15

United States v. Vonn,


535 U.S. 55 (2002) ...............................................................................................30

Util. Air Regulatory Group v. E.P.A.,


573 U.S. 302 (2014) .............................................................................................33

Warth v. Seldin,
422 U.S. 490 (1975) .............................................................................................12

Washington All. of Tech. Workers v. U.S. Dep’t of Homeland Sec.,


156 F. Supp. 3d 123 (D.D.C. 2015) .....................................................................14

Wash. All. of Tech.Workers v. United States Dep’t of Homeland Sec. (“Washtech”),


892 F.3d 332 (D.C. Cir. 2018) ...........................................................................8, 9

Statutes

6 U.S.C. § 112 ..........................................................................................................35


6 U.S.C. § 202(3), 271(b), 557 ..................................................................................3
6 U.S.C. § 202(5) .....................................................................................................14
7 U.S.C. § 2045(f) (Supp. IV 1974).........................................................................20
8 U.S.C. § 1101 ................................................................................................... 3, 11

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8 U.S.C. § 1101(a)(15)(H)(i)(b) .............................................................................. 28


8 U.S.C. § 1103(a) ...................................................................................... 21, 24, 35
8 U.S.C. § 1103(a)(1) .................................................................................................3
8 U.S.C. § 1103(a)(3) .......................................................................... 2, 3, 14, 29, 37
8 U.S.C. § 1153(b)(2), (3) ..........................................................................................4
8 U.S.C. § 1182(n) .....................................................................................................4
8 U.S.C. § 1184(g)(4).................................................................................................4
8 U.S.C. § 1226(a)(3) ...............................................................................................15
8 U.S.C. § 1231(a)(7) ...............................................................................................16
8 U.S.C. § 1255a(a) and (b) .....................................................................................24
8 U.S.C. § 1324a ......................................................................................... 14, 15, 24
8 U.S.C. § 1324a(a)(1) .............................................................................................21
8 U.S.C. § 1324(a)(h)(3) ..........................................................................................15
8 U.S.C. § 1427(a) ...................................................................................................24
Pub. L. No. 93-518 ...................................................................................................19
Pub. L. No. 99-603, 100 Stat. 3359 .........................................................................21
Pub. L. No. 101-649, Tit. III, 301, 104 Stat. 4978;
Tit. V, 521(a), 538, 104 Stat. 5053, 5056 ............................................................25
Pub. L. No. 106-313, §§ 104(a), 106(a)-(b), 114 Stat. 1251 (2000)..........................5
Pub. L. No. 107-296, 116 Stat. 2135, 2273-74 ........................................................30

Rules
D.C. Circuit Rule 28(a)(1) .......................................................................................39
Fed. R. App. P. 32(a)(5) ...........................................................................................40
Fed. R. App. P. 32(a)(6) ...........................................................................................40
Fed. R. App. P. 32(g)(1)...........................................................................................40

Regulations
8 C.F.R. § 214.2(c) ...................................................................................................18
8 C.F.R. § 214.2(h)(1)(ii)(B) .....................................................................................4
8 C.F.R. § 214.2(h)(9)(iii) ..........................................................................................4
8 C.F.R. § 214.2(h)(9)(iv) ..........................................................................................4
8 C.F.R. § 274a.12 .....................................................................................................3
8 C.F.R. § 274a.12(c)(9) ............................................................................................5
12 Fed. Reg. 5357 (Aug. 7, 1947)............................................................................19
17 Fed. Reg. 11,489 (Dec. 19, 1952) .......................................................................18
44 Fed. Reg. 43,480 .................................................................................................20
45 Fed. Reg. 19,563 .................................................................................................20
46 Fed. Reg. 25,079 (May 5, 1981) .........................................................................20
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46 Fed. Reg. 25,079 .................................................................................................20


46 Fed. Reg. 25,080 (May 5, 1981) .................................................................... 3, 20
51 Fed. Reg. 39,385 (Oct. 28, 1986)........................................................................21
51 Fed. Reg. 45,338 (Dec. 18, 1986) .......................................................................23
52 Fed. Reg. 16,221 .......................................................................................... 24, 35
52 Fed. Reg. 16,228 .......................................................................................... 24, 35
52 Fed. Reg. 46,093 (Dec. 4, 1987) .................................................................. 23, 35
61 Fed. Reg. 13,061 (Mar. 26, 1996) .......................................................................25
80 Fed. Reg. 10284 (Feb. 25, 2015) ................................................................... 1, 29
80 Fed. Reg. 10285 ....................................................................................... 5, 27, 35
80 Fed. Reg. 10286 ..................................................................................................29
80 Fed. Reg. 102885 ..................................................................................................4

Other Authorities
Charles Alan Wright et al., 21B Fed. Prac. & Proc. Evid. § 5110.1
(2d ed. 2018) ........................................................................................................11
Immigration Reform and Control Act of 1983, Hearings before the Subcomm.
On Immigration, Refugees and Int’l Law of the H. Comm. on the Judiciary,
98th Cong. 1450 (1983) .......................................................................................22
INS Oversight and Budget Authorization for Fiscal Year 1985: Hearings Before
the Subcomm. On Immigration, Refugees, and Int’l Law of the H. Comm. on
the Judiciary, 98th Cong. 357 (1984) ..................................................................22
Recent Developments,
64 No. 41 Interpreter Releases 1190 (Oct. 26, 1987) ..........................................24
Recent Developments,
67 No. 6 Interpreter Releases 153 (Feb. 5, 1990) ................................................24
S. Rep. No. 106-260 (Apr. 11, 2000) .........................................................................4
Sam Bernsen, INS Assistant Comm’r, Lawful Work for Nonimmigrants,
48 No. 21 Interpreter Releases 168 (June 21, 1971)............................................19
Sam Bernsen, INS Gen. Counsel, Leave to Labor,
52 No. 35 Interpreter Releases 291 (Sept. 2, 1975) .............................................19
USCIS, Press Release,
USCIS Announces Interim Relief for Foreign Students Adversely Impacted
by Hurricane Katrina (Nov. 25, 2005) ................................................................25

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GLOSSARY OF ABBREVIATIONS

AC 21 American Competitiveness in the Twenty-first Century Act


of 2000

APA Administrative Procedure Act, 5 U.S.C. § 701 et seq.

App. Joint Appendix

Br. Appellant’s Replacement Opening Brief

DHS U.S. Department of Homeland Security

EAD Employment Authorization Documentation

FAIR Federation for American Immigration Reform

H-1B Nonimmigrant visa or status allowing employers to


temporarily employ foreign workers in a specialty
occupation under 8 U.S.C. § 1101(a)(15)(H)(i)(b).

H-4 Nonimmigrant visa or status for dependents of H temporary


workers under 8 U.S.C. § 1101(a)(15)(H).

H-4 Rule Employment Authorization for Certain H-4 Dependent


Spouses, 80 Fed. Reg. 10,284 (Feb. 25, 2015), 8
C.F.R. §§ 214, 274a

IMMACT Immigration Act of 1990

INA Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.

INS U.S. Immigration and Naturalization Service

IRCA Immigration Reform and Control Act of 1986

LPR Legal Permanent Resident

Save Jobs Save Jobs USA (Appellant)


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USCIS U.S. Citizenship and Immigration Services

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STATUTES AND REGULATIONS

All applicable statutes are contained in the Brief for Appellant.

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ISSUES PRESENTED FOR REVIEW

1. Did the district court correctly find that Save Jobs lacks standing and properly

strike Save Jobs’ post-complaint evidence?

2. Did this Court err in holding Intervenors had standing in granting their motion

to intervene, when Intervenors stand to lose their ability to work in the United

States if the Rule at issue in this case is struck down?

3. Does the Department of Homeland Security have the authority to issue work

authorization to lawfully present non-immigrants as it has claimed for over

half a century under Republican and Democratic administrations, consistent

with the plain language of the relevant statutory provisions, and as repeatedly

recognized by Congress?

STATEMENT OF THE CASE

Save Jobs USA (“Save Jobs”), an organization whose members said they were

applying for various unspecified jobs in technical fields, mounted a challenge to a

rule promulgated by the Department of Homeland Security (“DHS”) even before the

Rule took effect in 2015. See Employment Authorization for Certain H-4 Dependent

Spouses, 80 Fed. Reg. 10284 (Feb. 25, 2015). The rule concerns spouses of H-1B

nonimmigrant guest workers who are seeking to obtain Legal Permanent Resident

(“LPR” or “Green Card”) status—a process that often entails backlogs and long

delays. The spouses of H-1B visa holders are entitled to H-4 visas enabling them to

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live, but not work, in the United States. The rule at issue (the “H-4 Rule”) allows the

spouses of H-1B workers to apply for employment authorization documentation

(“EADs”) during the interim period between when the H-1B worker applies for LPR

status and when the H-1B visa holder actually receives LPR status (at which point,

the spouse has always been able to work legally).

The district court correctly granted summary judgment to DHS, finding Save

Jobs lacked standing because its members averred only that they were applying to

unspecified jobs in various technical fields. They failed to produce evidence that

they were competing with any noncitizen worker benefited by the H-4 Rule or with

any H-1B worker induced to stay in the U.S. by the H-4 Rule, and so failed to show

that they faced an “actual and imminent” threat of competition as a result of the rule.

If this Court disagrees and finds standing, it should remand to the district court

to fully address the merits of Save Jobs’ claim in the first instance. Should this Court

reach the merits, Save Jobs’ contention that DHS lacked statutory authority for the

H-4 Rule is unavailing. That argument fails as a matter of basic statutory

interpretation. The Immigration and Nationality Act (“INA”) grants the Secretary of

DHS broad authority to “establish such regulations,” to “issue such instructions,”

and to “perform such other acts as he deems necessary for carrying out his authority”

to “administ[er] and enforce[]” immigration laws. 8 U.S.C. 1103(a)(3).

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Consistent with this broad statutory command, DHS (and its predecessor

agencies) have understood for over 50 years that the Executive Branch has the

authority to issue work authorizations, and accordingly, have issued work

authorizations to millions of people. Congress has never repudiated this long-

standing and consistent interpretation. Indeed, Congress has blessed it, expressly

recognizing the Executive’s authority to issue work authorization. 8 U.S.C.

1324a(h)(3). Because the text and history of the INA support the H-4 work

authorization program, the Court—if it reaches the issue—should uphold the rule.

I. STATUTORY AND REGULATORY BACKGROUND


The INA, 8 U.S.C. 1101 et seq., charges the Secretary of Homeland Security

(the “Secretary”) “with the administration and enforcement of th[e INA] and all

other laws relating to the immigration and naturalization of aliens.” 8 U.S.C.

1103(a)(1). 1 To carry out this authority, the INA grants the Secretary power to

“establish such regulations,” to “issue such instructions,” and to “perform such other

acts as he deems necessary for carrying out his authority” to “administ[er] and

enforce[]” immigration laws. 8 U.S.C. 1103(a)(3).

The Executive Branch has long construed this authority to include providing

for work authorizations, see, e.g., 8 C.F.R. § 274a.12; 46 Fed. Reg. 25,080–25,081

1
Congress has transferred to the Department of Homeland Security most of the
functions of the former Immigration and Naturalization Service (“INS”). See 6
U.S.C. 202(3), 271(b), 557.
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(May 5, 1981), as has Congress. 8 U.S.C. 1324a(h)(3). Pursuant to this authority,

DHS promulgated the H-4 Rule. See 80 Fed. Reg. at 102885. The H-4 visa allows

certain dependents of H-1B visa holders to lawfully enter and reside in the United

States. See 8 C.F.R. § 214.2(h)(9)(iv). The H-4 Rule “extend[s] eligibility for

employment authorization to certain” of those dependents. 80 Fed. Reg. at 102884–

85.

If U.S. Citizenship and Immigration Services (“USCIS”) approves an

employer’s H-1B petition (which must include a Labor Condition Application

(“LCA”) approved by the Department of Labor (“DOL”), 8 U.S.C. § 1182(n), 8

C.F.R. § 214.2(h)(1)(ii)(B)), DHS admits the worker in H-1B status for up to three

years. 8 U.S.C. § 1184(g)(4); 8 C.F.R. § 214.2(h)(9)(iii). USCIS may extend a

worker’s H-1B status for up to three more years. Id. DHS admits the worker’s

dependent spouse (and minor children) in H-4 status subject to the same period of

admission and limitations as the H-1B worker. See 8 C.F.R. § 214.2(h)(9)(iv).

Because of immigrant visa backlogs in certain employment-based preference

categories, i.e., 8 U.S.C. § 1153(b)(2), (3), many highly-skilled H-1B workers were

forced to leave the country after six-years of productive employment while their

employment-based immigrant visa petitions for green cards were still pending. See

S. Rep. No. 106-260 at 22 (Apr. 11, 2000). In response, Congress enacted the

American Competitiveness in the Twenty-F irst Century Act of 2000 (“AC 21”),

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which permits H-1B visa holders to extend their stay in the U.S. in certain

circumstances. See AC 21, Pub. L. No. 106-313, §§ 104(a), 106(a)-(b), 114 Stat.

1251 (2000).

DHS’s final H-4 Rule applies only to H-4 dependent spouses of H-1B workers

that are either: (1) the principal beneficiary of approved I-140 immigration petition

for an alien worker, or (2) have been granted H-1B extensions beyond six-years

under AC 21 § 106(a) & (b). Id. at 10290-91. The final rule thus provides temporary

employment authorization for this limited group of H-4 dependent spouses as they

wait for their spouse to get a green card, simply accelerating when these intending

immigrants would become eligible to apply for temporary employment authorization

based on a pending I-485 adjustment of status application. See id. at 10285; 8 C.F.R.

§ 274a.12(c)(9).

II. PROCEDURAL HISTORY

Save Jobs filed its complaint in this action on April 23, 2015. The parties filed

cross motions for summary judgment. In support of its motion, Save Jobs attached

an appendix with its evidence of standing, including among other things a number

of internet job postings and blog posts, and the affidavits of three of its members.

The district court ruled in favor of DHS. Save Jobs USA v. U.S. Dep’t of Homeland

Sec., 210 F. Supp. 3d 1 (D.D.C. 2016).

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Save Jobs appealed. Following a change in administrations, DHS filed a series

of motions to hold the case in abeyance in order to, as it said in its first such motion,

“allow incoming leadership personnel adequate time to consider the issues.” See

Case No. 16-5287, Doc. No. 1658889 at ¶ 4 (Feb. 2, 2017). After the initial abeyance

motion, Intervenors—a non-profit organization supporting alleviation of restrictions

on employment and travel by legal, high-skilled immigrants, as well as two of its

members—sought to intervene in order to defend the rule. Id. Doc. 1664623 (Mar.

7, 2017). DHS subsequently informed this Court that it intended to promulgate a

new rule, through notice and comment rule making, replacing the existing rule, and

that the new rule might moot this appeal. See DHS motions filed on April 4, 2017;

September 27, 2017; and December 22, 2017. After granting DHS’s multiple

requests to extend the abatement, and after DHS repeatedly failed to meet its own

deadlines for proposing a new rule, on December 17, 2018, this Court removed the

case from abeyance, set a briefing schedule, and granted Intervenors’ motion (over

both Save Jobs and DHS’s opposition). Id. Doc. 1764518 (December 17, 2018).

SUMMARY OF ARGUMENT

I. As the government persuasively argues, the district court correctly held

that Save Jobs lacks standing and correctly excluded Save Job’s extra-record

evidence.

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II. Save Jobs contends that the Intervenors lack standing. But this Court

necessarily decided that Intervenors do have standing when it granted the motion to

intervene, and that holding is law of the case. Regardless, it is apparent that

Intervenors have standing because they stand to suffer a concrete injury—the loss of

their ability to work in the United States—if the Rule at issue is invalidated.

III. If the Court reverses on standing, it should remand.

IV. Should the Court reach the merits of the Plaintiff’s challenge, the Court

should determine, based on the plain language of the statutes at issue and the

unbroken practice over more than the last 50 years, that the Secretary has authority

to issue the H-4 Rule. Section 1103 of the Immigration and Nationality Act gives

the Secretary broad discretion to promulgate “such regulations,” and to “perform

such other acts as he deems necessary for carrying out his authority” to “administ[er]

and enforce[]” immigration laws. This grant of authority has long been interpreted

to give the Executive Branch the authority to issue work authorization. Indeed, the

Executive has allowed certain classes of aliens to lawfully work in this country for

over a half century. This long-standing Executive interpretation by both Republican

and Democratic administrations has been repeatedly blessed by Congress. Save

Jobs’ contrary arguments depend on ignoring key statutory language, the unbroken

history of DHS’s granting of work authorization to numerous groups of non-

immigrants, as well as Congress’s acquiescence to and acceptance of that conduct

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even though Congress has repeatedly acted to amend other parts of the immigration

statutes. Save Jobs also turns a blind eye to the fact that work authorization is an area

of dual authorization. Congress, in order to facilitate DHS’s ability to manage the

nation’s complex immigration system, has granted DHS discretion to confer work

authorization when Congress has not acted while retaining to itself the authority to

grant work authorization or exercise its authority to exclude DHS from granting

work authorization to particular classes of immigrants.

STANDARD OF REVIEW

This Court reviews standing de novo, Wash. All. of Tech. Workers v. United

States Dep’t of Homeland Sec. (“Washtech”), 892 F.3d 332, 339 (D.C. Cir. 2018),

and motions to strike for abuse of discretion. Jackson v. Finnegan, Henderson,

Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).

The Court reviews questions of law de novo. Acree v. Republic of Iraq, 370

F.3d 41, 49 (D.C. Cir. 2004), abrogated on other grounds by Republic of Iraq v.

Beaty, 556 U.S. 848 (2009).

ARGUMENT

I. SAVE JOBS LACKS STANDING


As the Government persuasively explains, and as the district court correctly

found, Save Jobs does not have standing in this case because it has failed to present

any evidence that its members faced increased competition on account of the H-4

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Rule. Likewise, the Government is correct that Save Jobs’ extra-record evidence

should not have been considered.

We make four additional points.

First, in Washtech, the allegations were quite different. There, the plaintiffs

alleged that “three of Washtech’s members have applied to companies for STEM

jobs and that F–1 student visa holders who work at the same companies have applied

for OPT [‘optional practical training’] extensions.” 892 F.3d at 338-40. Thus, the

plaintiffs and students were direct competitors for jobs at specific companies—

Microsoft and Computer Sciences Corporation. Id. Although the Court stated the

rule “increased the labor supply in the STEM job market,” id., the Court did not hold

that all workers in any “STEM” field would have standing to challenge the rule. 2

Second, Save Jobs USA cites portions of the administrative record suggesting

that the H-4 Rule will alleviate disincentives against continuing to pursue LPR

status, and asserts that “[b]ut for the H-4 Rule, large numbers of aliens in H-1B status

would leave the country and the job market.” Br. at 19 (citing 80 Fed Reg. at

10,285[3]). The record cannot bear that weight. In fact, the record does not establish

that any H-1B visa holders will be induced by the Rule not to abandon their efforts

2
The declaration of Intervenor Anujkumar Dhamija, stating he is working under the
H-4 Rule as an information technology project manager, cannot establish standing
because Mr. Dhamija did not receive work authorization under the H-4 Rule until
November 2015 (Decl. ¶ 6), six months after the complaint was filed.
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to become a Legal Permanent Resident. Rather, DHS derived its estimates of the

number of potentially eligible H-4 spouses from the “historical data on persons

obtaining LPR status,” 80 Fed. Reg. at 10305. DHS did not indicate how many (if

any) H-1B visa holders who were in the process of transitioning to LPR status had

abandoned their applications in prior years or how many, if any, it anticipated would

be induced by the Rule not to abandon their applications in future years. Whether

the Rule would have such an effect on any H-1B visa holder is purely speculative.

Even without the Rule, H-1B visa holders in the process of transitioning to legal

status had ample incentive to stay in the U.S. where they were gainfully employed

and where many had already been waiting for years for their legal residency.

Third, Save Jobs argues for the first time in its brief that a website called the

“Wayback Machine” shows that some of the stricken evidence existed in

substantially similar form prior to the date the complaint was filed. The Court should

disregard this new “evidence,” which Save Jobs urges this Court to consider by

citing to certain web pages (Br. at 25 & nn. 8-9) even though Save Jobs failed to

present this “evidence” to the district court. See Piwowarski v. Green, No. 05-7174,

2006 WL 3798908, at *1 (D.C. Cir. Oct. 4, 2006) (“[A]n appellate court ordinarily

has no fact-finding function and will generally not consider new evidence on

appeal”). Further, Save Jobs did not request that this Court take judicial notice of

these web sites, and in any event, this alleged evidence is hearsay and even assuming

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judicial notice would be proper, “Courts agree … that the appellate court should not

take judicial notice to cure an insufficiency of evidence in the record.” Charles Alan

Wright et al., 21B Fed. Prac. & Proc. Evid. § 5110.1 & n.20 (2d ed. 2018) (collecting

authority).

Fourth, if this Court holds that the district court abused its discretion in

striking the evidence, this Court should remand the issue to the district court to

evaluate the evidence and determine its impact on Save Jobs’ standing claim. See In

re Sealed Case, 552 F.3d 841, 845 (D.C. Cir. 2009); Piwowarski, 2006 WL 3798908,

at *1. A remand is particularly appropriate given the palpable issues of authenticity,

hearsay, and credibility related to the job postings.

II. INTERVENORS HAVE STANDING BECAUSE THEY WILL


SUFFER INJURY IF THE RULE AT ISSUE IS INVALIDATED
Save Jobs argues (Br. at 49-50) that Intervenors lack standing to intervene.

Save Jobs opposed the motion to intervene but failed to raise this argument in its

opposition, Doc. 1664623 (March 6, 2017), even though Intervenors argued at length

(at pp. 8-11) that they had standing. This Court granted the Motion to Intervene,

citing the case, Fund For Animals, Inc. v. Norton, 322 F.3d 728, 731-33 (D.C. Cir.

2003), and pages therein that the Intervenors primarily relied on to establish

standing. Doc. 1764518 (Dec. 17, 2018). Because “a party seeking to intervene as

of right must demonstrate that it has standing under Article III of the Constitution,”

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Fund for Animals, 332 F.3d at 732-33, this Court necessarily decided that

Intervenors, in fact, have standing.

Although standing generally may be raised at any time, this precise issue was

decided by the motions panel and is law of the case. See Petties v. D.C., 227 F.3d

469, 472 (D.C. Cir. 2000). Under the law-of-the-case doctrine, courts are “loathe to

reconsider issues already decided, except in the case of extraordinary circumstances

such as where the initial decision was clearly erroneous and would work a manifest

injustice.” Sherley, 689 F.3d at 781 (quotation omitted). Save Jobs cannot meet that

standard and does not even claim it does.

Save Jobs challenges Intervenors’ standing only on the tortuous ground that

because Intervenors’ work authorization was conferred by agency action rather than

by an act of Congress, Intervenors do not possess any judicially cognizable interest

on which to base their standing. Save Jobs’ argument is misplaced because it relies

on case law concerning whether a party has standing to bring an unrecognized right

of action. E.g., Warth v. Seldin, 422 U.S. 490, 512 (1975); Alexander v. Sandoval,

532 U.S. 275, 291 (2001); Sargeant v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997).

Save Jobs cites no case supporting its argument that simply because a

regulation, rather than a statute, confers a benefit on a person, that person lacks

standing to defend against the deprivation of that benefit. Save Jobs’ argument

proves too much and would mean, for example, that Intervenors would not have

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standing to challenge a new rule rescinding the H-4 EAD Rule. Contrary to Save

Jobs’ contention, the question of whether the challenged H-4 regulation is consistent

with a Congressional directive is precisely the question presented in the merits of

this case and has nothing to do with standing. See Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the

absence of a valid (as opposed to arguable) cause of action does not implicate

subject-matter jurisdiction….); Bell v. Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction

... is not defeated ... by the possibility that the averments might fail to state a cause

of action on which petitioners could actually recover.”).

III. THE COURT SHOULD NOT CONSIDER THE STATUTORY


QUESTION
The Government is also correct that should this Court reverse on standing, the

proper course is to remand to the district court to consider the statutory question in

the first instance.

IV. IN ANY EVENT, THE SECRETARY HAS AUTHORITY TO


ISSUE THE H-4 RULE
If the Court reaches the question, it should conclude that DHS has the

authority to issue the H-4 Rule based on the text, structure, and history of the INA.

A. The Text of the INA Provides the Secretary with Authority to


Issue Work Authorizations

H-4 work authorization is a lawful exercise of the Secretary’s broad statutory

authority to carry out the immigration law. Congress has tasked the Secretary of

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Homeland Security with “[e]stablishing national immigration enforcement policies

and priorities,” and it has “charged” the Secretary with “the administration and

enforcement of” the INA, “and all other laws relating to the immigration and

naturalization of aliens.” 6 U.S.C. 202(5); 8 U.S.C. 1103(a). Beyond that, Congress

has directed the Secretary to “establish such regulations,” to “issue such

instructions,” and to “perform such other acts as he deems necessary for carrying out

his authority” to “administ[er] and enforce[]” immigration laws, 8 U.S.C.

1103(a)(3), including by authorizing aliens to be lawfully employed, 8 U.S.C.

1324a(h)(3). In enacting these provisions, “Congress has given the Executive Branch

broad discretion to determine when noncitizens may work in the United States.”

Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014); accord

Washington All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 156 F. Supp. 3d

123, 144 (D.D.C. 2015) (“DHS has been broadly delegated the authority to regulate

the terms and conditions of a nonimmigrant’s stay….”), judgment vacated, appeal

dismissed on other grounds, 650 F. App’x 13 (D.C. Cir. 2016); see also United

States v. Chen, 2 F.3d 330, 333 (9th Cir. 1993) (“Congress has provided extremely

broad powers to the Attorney General for the enforcement of the immigration

laws.”).

That broad statutory authority is confirmed in Section 1324a, which

recognizes that both Congress and the Secretary have the authority to issue work

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authorization. See Perales v. Casillas, 903 F.2d 1043, 1049 (5th Cir. 1990) (noting

that beyond one statutory reference “[e]mployment authorization is regulated” in the

CFR). Section 1324a reads: “the term ‘unauthorized alien’ means, with respect to

the employment of an alien at a particular time, that the alien is not at that time ...

authorized to be so employed by this chapter or by the Attorney General.” 8 U.S.C.

1324(a)(h)(3). Of course, if—as Save Jobs contends—all work authorizations

flowed directly from a pronouncement in the INA, there would have been no need

for Congress to add “or by the Attorney General.” See Bennett v. Spear, 520 U.S.

154, 173 (1997) (courts should give effect to ‘“every clause and word of a statute’”

(quoting United States v. Menasche, 348 U.S. 528, 538 (1955))). That is not what

Congress did. Instead, the language of Section 1324a confirms that the broad grant

in Section 1103 authorizes the Secretary to issue work authorizations.

It is not just Section 1324a that confirms the commonsense reading of Section

1103—the statute as a whole makes sense only if Section 1103 is read to confer the

authority to issue work authorizations on the Secretary. Specifically, the INA

provides specific limits on the Secretary’s authority to issue work authorization to

specific classes of aliens, but these limits are nonsensical if the Secretary has no

authority to issue work authorizations without an express grant. For example, 8

U.S.C. 1226(a)(3) provides that the Secretary “may not provide [an] alien [who has

been arrested, detained, and released on bond pending a removal determination] with

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work authorization … unless the alien is lawfully admitted for permanent residence

or otherwise would (without regard to removal proceedings) be provided such

authorization.” Similarly, 8 U.S.C. 1231(a)(7) provides that “[n]o alien ordered

removed shall be eligible to receive authorization to be employed in the United

States unless the Attorney General makes a specific finding that … the alien cannot

be removed” or “the removal of the alien is otherwise impracticable or contrary to

the public interest.” The very fact that Congress recognized the need to limit the

Secretary’s work authorizations in such cases indicates that, absent a limitation, the

Secretary has broad authority to issue work authorization as he or she deems fit.

Indeed, if the Secretary’s work-authorization authority is limited—as Save Jobs

contends—to granting employment authorizations when a statute expressly grants

the alien work eligibility, then the limited prohibitions would be surplusage.

Congress had good reason to grant the Secretary dual authority to issue work

authorization in cases when Congress has not acted. Congress has long-recognized

that the ever-changing requirements of the immigration system often necessitate

nimble Executive Branch decision making. As the Supreme Court explained,

immigration decisions “implicate our relations with foreign powers” and depend on

a wide variety of “changing political and economic circumstances.” Mathews v.

Diaz, 426 U.S. 67, 81 (1976); see also Harisiades v. Shaughnessy, 342 U.S. 580,

588-589 (1952). Therefore, in forming immigration policy, the federal government

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must have the “flexibility ... to respond to changing world conditions.” Diaz, 426

U.S. at 81. This “dynamic nature” of immigration policy “requires the Executive

Branch to ensure that enforcement policies are consistent with this Nation’s foreign

policy[]” and with the “immediate human concerns” inherent in immigration

decision making. Arizona v. United States, 567 U.S. 387, 396–97 (2012). Dual

authority furthers these ends: allowing Congress to authorize (or preclude) work

authorizations when exercising its considered judgment and allowing the Secretary

the flexibility to respond to immediate policy needs in cases when Congress has not

acted.

Authorizing H-4 aliens to work is consistent with this statutory framework.

To begin, “[w]here” as here “the empowering provision of a statute states simply

that the agency may ‘make … such rules and regulations as may be necessary to

carry out the provisions of this Act, … the validity of a regulation promulgated

thereunder will be sustained so long as it is reasonably related to the purposes of the

enabling legislation.” Mourning v. Family Publ’ns Serv., 411 U.S. 356, 369 (1973).

That test is easily met here. The INA “framework reflects a considered judgment

that making criminals out of aliens engaged in unauthorized work—aliens who

already face the possibility of employer exploitation because of their removable

status—would be inconsistent with federal policy and objectives.” Arizona v. United

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States, 567 U.S. at 405. This is especially true in the case of immigrants who will

become LPRs at the same time as their H-1B spouses.

B. The History of the INA Confirms That the Secretary Has


Authority to Issue Work Authorizations

The history of the INA makes clear that the Secretary has the authority to issue

work authorizations. This history matters for two independent, but related reasons.

First, the history is important in its own right because courts “will normally accord

particular deference” when the agency interpretation in question is “of

‘longstanding’ duration.” Barnhart v. Walton, 535 U.S. 212, 220 (2002) (citation

omitted). Second, the history matters because, despite making numerous, other

significant changes to the INA, Congress has never repudiated DHS’s authority to

issue work authorizations. “[W]hen Congress revisits a statute giving rise to a

longstanding administrative interpretation without pertinent change, the

congressional failure to revise or repeal the agency’s interpretation is persuasive

evidence that the interpretation is the one intended by Congress.” Creekstone Farms

Premium Beef, L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500 (D.C. Cir. 2008).

For more than 50 years, across multiple Democratic and Republican

administrations, the Attorney General and later the Secretary of DHS have

interpreted their authority under Section 1103 to include the authority to issue work

authorizations. See, e.g., 17 Fed. Reg. 11,489 (Dec. 19, 1952) (8 C.F.R. 214.2(c))

(authorizing nonimmigrants to engage in employment if “authorized by the district

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director or the officer in charge having administrative jurisdiction over the alien’s

place of temporary residence”). Indeed, even before the 1952 enactment of the INA,

the Attorney General understood his or her authority to include the ability to issue

work authorization. 12 Fed. Reg. at 5357 (Aug. 7, 1947).

This authority has been consistently invoked, and by the 1970’s, INS’s

ordinary practice was to authorize aliens to work when it decided not to pursue

immediate deportation. Sam Bernsen, INS Gen. Counsel, Leave to Labor, 52 No. 35

Interpreter Releases 291, 294 (Sept. 2, 1975); see Sam Bernsen, INS Assistant

Comm’r, Lawful Work for Nonimmigrants, 48 No. 21 Interpreter Releases 168, 315

(June 21, 1971). True enough, at the time there was no prohibition on hiring

unauthorized immigrants. See generally De Canas v. Bica, 424 U.S. 351, 360-361

(1976). But “[s]ome employers [would] not hire an alien” without “some evidence

of authorization to work.” Leave to Labor 52 No. 35 Interpreter Releases at 294. The

INS granted authority to work in those cases, reasoning that “gainful employment

should not be prevented and that it is reasonable to give the alien something that he

can present to a prospective employer to show that he can work.” Id.; see also De

Canas, 424 U.S. at 364.

Congress ratified this work-authorization authority in the 1974 Farm Labor

Contractor Registration Act. See Pub. Law 93-518, December 7, 1974, 88 Stat 1652.

That enactment barred farm labor contractors from knowingly employing any “alien

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not lawfully admitted for permanent residence or who has not been authorized by

the Attorney General to accept employment.” 7 U.S.C. 2045(f) (Supp. IV 1974);

Counterman v. U.S. Dept. of Labor, 607 F. Supp. 286, 288 (W.D. Tex. 1985). The

necessary premise of the law was that the “Attorney General” already had the

authority to “authorize[]” aliens “to accept employment.” Id.

In 1979, INS sought “for the first time” to “codify [its] existing employment

authorization procedures.” 44 Fed. Reg. at 43,480. The proposed rule provided

several categories of aliens who could receive work authorization. Id. As authority

for this proposed rule, the INS cited Section 1103. Id.

The next year, after “careful consideration” of substantial public comment, a

“significantly modified” rule was proposed. 45 Fed. Reg. 19,563. The new version

of the rule still set out “classes of aliens who may apply for discretionary work

authorization.” Id. Again, the modified rule cited Section 1103 as its source of

authority. Id. This modified proposal was met with “concern” that it “did not

adequately cover all categories [of] nonimmigrants who are permitted to work while

in the United States.” 46 Fed. Reg. 25,079, 25,080 (May 5, 1981).

In 1981, the INS published its final rule. See id. at 25,079-083. The final rule

recognized that the INS had significant discretion to issue work authorization. Id. at

25,080 (providing for “discretionary work authorization based upon … financial

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need”). Again, the final rule recognized that the general authority under Section

1103(a) allowed the INS to issue work authorizations. Id.

Five years later, in 1986, the final rule was challenged by the Federation for

American Immigration Reform (“FAIR”). 51 Fed. Reg. 39,385 (Oct. 28, 1986).

FAIR, like Save Jobs here, claimed that the INS had “acted beyond its statutory

authority and contrary to the purpose of the Immigration and Nationality Act.” Id. at

39,386; see also id. at 39,387.

Before the INS could act on FAIR’s petition, Congress settled the dispute by

ratifying the INS’s longstanding view that it had authority to issue work

authorizations in the Immigration Reform and Control Act of 1986 (“IRCA”), Pub.

L. No. 99-603, 100 Stat. 3359. In IRCA, Congress adopted a “comprehensive

scheme prohibiting the employment of illegal aliens in the United States.” Hoffman

Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). To do this, IRCA

extended to all employers the sanctions regime that previously applied only to farm-

labor contractors. See id. 101, 100 Stat. 3372. The critical provision of IRCA makes

it unlawful for an employer to hire “an unauthorized alien (as defined in subsection

(h)(3) of this section) with respect to such employment.” 8 U.S.C. 1324a(a)(1).

Subsection (h)(3) in turn defines “unauthorized alien” as an alien who is not a lawful

permanent resident and not “authorized to be so employed by th[e INA] or by the

Attorney General.” 8 U.S.C. 1324a(h)(3). This language reaffirmed the Attorney

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General’s authority to issue work authorization—a practice that Congress declined

to limit in IRCA.

Indeed, Congress was well-aware of the INS’s claim of work-authorization

authority when IRCA was passed because, in addition to the trio of publicly-noticed

regulations in the 1980s and the FAIR petition, the INS’s claim of authority was

specifically highlighted to Congress while IRCA was being debated. See Letter from

Robert McConnell, DOJ, to Romano Mazzoli (Apr. 4, 1983), included in

Immigration Reform and Control Act of 1983, Hearings before the Subcomm. On

Immigration, Refugees and Int’l Law of the H. Comm. on the Judiciary, 98th Cong.

1450 (1983) (“INS currently has authority to define classes of aliens who may be

employed in the U.S.”); Letter from Alan Nelson, Comm’r, INS, to Romano Mazzoli

(May 14, 1984), included in INS Oversight and Budget Authorization for Fiscal Year

1985: Hearings Before the Subcomm. On Immigration, Refugees, and Int’l Law of

the H. Comm. on the Judiciary, 98th Cong. 357 (1984) (explaining that INS

regulations “set forth eligibility and criteria for employment authorization”). More

than that, INS’s work-authorization authority was subject to litigation by the time

Congress considered IRCA. E.g., Diaz v. INS, 648 F. Supp. 638 (E.D. Cal. 1986)

(litigating work authorization for asylum applicants). Congress’s decision to

recognize the Attorney General’s authority to issue work authorizations, when

measured “[a]gainst this background understanding in the legal and regulatory

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system,” including the history of work authorizations dating back to the 1940s,

Congress’s experience with the agriculture-specific work-authorization regime of

the 1970s, and Congress’s understanding of the INS’s claim of authority in the lead

up to IRCA “is convincing support for the conclusion that Congress accepted and

ratified” the INS’s interpretation of Section 1103. Texas Dept. of Hous. & Cmty.

Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015).

Following enactment of IRCA, FAIR’s petition claiming that the INS lacked

authority to issue work authorizations remained pending. In light of IRCA, INS

extended the comment period on the FAIR petition, noting that IRCA’s recognition

of the Attorney General’s power to grant work authorization “appears to have a

direct bearing on the issues to be resolved.” 51 Fed. Reg. 45,338, 45,338 (Dec. 18,

1986). FAIR then submitted a supplemental comment, arguing that Section

1324a(h)(3) meant that the Attorney General lacked authority “to grant work

authorization except to those aliens who have already been granted specific

authorization by the [INA].” 52 Fed. Reg. 46,093 (Dec. 4, 1987). The INS squarely

rejected this view, reasoning, “the only logical way to interpret” Section 1324a(h)’s

reference to authorization by the Attorney General, “is that Congress, being fully

aware of the Attorney General’s authority to promulgate regulations, and approving

of the manner in which he has exercised that authority in this matter, defined

‘unauthorized alien’ in such fashion as to exclude aliens who have been authorized

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employment by the Attorney General through the regulatory process, in addition to

those who are authorized employment by statute.” Id. In light of that view, INS

recodified its work-authorization regime, identifying Sections 1103(a) and 1324a as

authority. See 52 Fed. Reg. at 16,221, 16,228; see also Commodity Futures Trading

Comm’n v. Schor, 478 U.S. 833, 844 (1986) (stating that “considerable weight must

be accorded” an agency’s “contemporaneous interpretation of the statute it is

entrusted to administer”).

In the years following IRCA, INS, and later the Secretary of DHS, have

continued to issue work authorizations, including to aliens who are not specifically

granted work authorization under the INA. In IRCA, Congress granted lawful status

to millions of undocumented aliens who applied and satisfied certain residency and

other requirements. See, e.g., 8 U.S.C. 1255a(a) and (b). This enabled them to obtain

temporary resident status with work authorization. Id.; see 8 U.S.C. 1427(a). But

Congress did not extend legal protection to some of those aliens’ spouses and

children. See Recent Developments, 64 No. 41 Interpreter Releases 1190, App. I, at

1201 (Oct. 26, 1987). Nonetheless, in 1987, the INS established a “Family Fairness”

policy to provide some relief to those family members. Id. at 1203-1204. That relief

included work authorization. Recent Developments, 67 No. 6 Interpreter Releases

153, 152 (Feb. 5, 1990). In 1990, the INS expanded the “Family Fairness” policy,

providing upwards of 100,000 people with work authorization. Id. at 154.

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Congress responded not by repudiating the “Family Fairness” program, but

by ratifying it. See Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649, Tit.

III, 301, 104 Stat. 4978. The IMMACT simultaneously made a number of

amendments to IRCA’s work authorization provision. Tit. V, 521(a), 538, 104 Stat.

5053, 5056. But pointedly, Congress did not modify the language recognizing that

“the Attorney General” could “authorize[]” aliens to be lawfully employed—even

in response to the INS’s “Family Fairness” policy that could have extended work

authorization to a large number of people. It is black-letter administrative law that

“when Congress revisits a statute giving rise to a longstanding administrative

interpretation without pertinent change, the congressional failure to revise or repeal

the agency’s interpretation is persuasive evidence that the interpretation is the one

intended by Congress.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 159

(2013) (citation omitted). Since then, INS has consistently used its authority to issue

work authorizations. 61 Fed. Reg. 13,061 (Mar. 26, 1996) (inviting Violence Against

Women Act self-petitioners to apply for work authorization, notwithstanding the fact

that the original VAWA statute did “not direct the Service to provide employment

authorization based solely on the filing or approval of a self-petition”); USCIS, Press

Release, USCIS Announces Interim Relief for Foreign Students Adversely Impacted

by Hurricane Katrina (Nov. 25, 2005) (“Katrina-impacted foreign academic

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students ... may ... apply for employment authorization based on economic

necessity.”).

In sum, the H-4 Rule is no different than the informal work authorization

programs in the 1940s and 50s, the agricultural work authorizations presaged by

Congress in the 1970s, and the numerous work authorization issued after the express

recognition of the Attorney General’s authority in the 1980s. Indeed, as Save Jobs

seems to recognize by designating numerous related cases in the beginning of its

brief, “millions” of people currently hold work authorizations based on the

Executive’s work authorization authority. See Tr. of Oral Argument, United States

v. Texas, No. 15-674 at 89:4-25 (explaining that millions of people beyond the

DAPA recipients at issue in that case hold work authorization). This unbroken

history confirms what the plain text of Section 1103 makes clear: the Secretary has

authority to issue work authorization.

C. Save Jobs’ Statutory Arguments Lack Merit

Unsurprisingly, Save Jobs says little about this text or history. Rather, Save

Jobs presents an atextual, ahistorical, and flawed reading of the INA. (Br. 36-41).

Save Jobs begins by arguing that Section 1324a(h) “does not authorize DHS

to do anything.” (Br. at 38.) But that argument misses the point, as DHS made clear

when it promulgated the H-4 Rule, Section 1324a(h) is not a source of authority;

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instead, it simply “recognizes the Secretary’s” preexisting “authority to extend

employment to noncitizens in the United States.” 80 Fed. Reg. at 10285.

Save Jobs is equally wrong that Section 1324’s reference to “by the

[Secretary]” refers only to categories of aliens for whom the INA itself already

directs that the Executive either must or may separately grant work authorization.

(Br. at 39.) First, Save Jobs’ reading ignores the nearly 40 years of pre-IRCA work

authorizations. Perplexingly, on Save Jobs’ reading, Congress repudiated that 40-

year history of Executive work authorizations opaquely and in a statutory provision,

Section 1324a(h), that expressly recognized the Executive’s authority to issue work

authorization. Second, Save Jobs’ reading leaves nothing for the “by the [Secretary]”

clause to do. If a class of aliens has been granted work authorization—or has been

permitted to hold work authorization—by a provision of the INA, then those aliens

were authorized “to be so employed by this chapter.” 8 U.S.C. 1324a(h)(3). The

second clause of Section 1324a(h) does nothing on that view. True enough, Save

Jobs argues that there are times when the INA provides that DHS “may” grant work

authorization. But in those cases, the authority for work authorization still comes

from the INA, and therefore, is encapsulated in the “by this chapter” language.

Indeed, on Save Jobs’ view, Section 1324a(h) would have been written

conjunctively, not disjunctively. Only if Executive discretion to issue work

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authorizations without a specific statutory grant is assumed does the “or by the

[Secretary]” clause have independent meaning. 3

Save Jobs next argues that Section 1103 does not grant DHS the authority to

issue work authorizations. (Br. at 40.) Instead, on Save Jobs’ reading, Section 1103

is inapplicable unless DHS can identify a “specific provision of law that

necessitated” the regulation at issue. (Id. at 41.) That ahistorical argument was

rejected in Narenji v. Civiletti, when this Court interpreted Section 1103 to mean

that “[t]he [INA] need not specifically authorize each and every action taken by the

Attorney General, so long as his action is reasonably related to the duties imposed

upon him.” 617 F.2d 745, 747 (D.C. Cir. 1979). In any event, the argument is wrong

because work authorization has been deemed necessary to the proper functioning of

the immigration system for over half a century.

Moreover, to the extent a specific statutory hook beyond Section 1103 is

needed, the H-1B program is statutorily authorized, 8 U.S.C. 1101(a)(15)(H)(i)(b),

and the Secretary was fully justified in concluding that H-4 work authorizations were

“necessary” to support the H-1B program. 8 U.S.C. 1103(a). Indeed, the Secretary

made these findings, noting that the H-4 Rule would ameliorate problems in the H-

3
Contrary to Save Jobs’ contention, a provision of the INA indicating that the
Secretary “may” grant work authorizations is not surplusage. That provision offers
a means of channeling the Secretary’s discretions under Section 1103, alerting the
Secretary that Congress wants him or her to consider authorizations.
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1B program. 80 Fed. Reg. at 10284. Thus, even under Save Jobs’ crabbed reading

of DHS’ authority, the H-4 Rule should be upheld.

Finally, Save Jobs contends that “DHS claims that Congress ceded to it

complete authority to admit aliens into the American job market, whether or not such

aliens are in a lawful status or authorized to work.” (Id. at 36-37.) This appeal,

however, does not present the question of whether the Secretary may grant work

authorization to aliens without lawful status because the H-4 Rule applies only aliens

with lawful status. 80 Fed. Reg. at 10286. Even on its own terms, Save Jobs is

incorrect that DHS through the H-4 Rule claims unfettered authority to provide work

authorizations. For one, on its face Section 1103 requires the Secretary to find the

regulations are “necessary for carrying out his authority” to “administ[er] and

enforce[]” immigration laws. 8 U.S.C. 1103(a)(3). Beyond Section 1103, DHS

cannot grant work authorization where doing so is inconsistent with the INA. Cf.

Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015) (granting legal status and

work authorization to “unlawful aliens” was inconsistent with the INA). As

explained, the H-4 program is necessary to administering the immigration laws, and

no other provision of the INA forbids the H-4 Rule.

D. To the Extent the INA is Ambiguous, Deference Supports the H-


4 Program

Given the text and history of the INA, deference is not needed to resolve this

dispute. But to the extent the Court finds any ambiguity, deference ices the already-

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baked cake under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

842 (1984).

Chevron fully applies here. First, there is no doubt that DHS is charged with

implementing the INA. See Pub. L. No. 107-296, 116 Stat. 2135, 2273–74

(transferring INS’s authority to the Secretary). Second, the H-4 Rule was passed

following full notice-and-comment rulemaking. See United States v. Mead Corp.,

533 U.S. 218, 227 (2001). Third, Congress has not directly spoken to the question

of whether H-4 aliens should be entitled to work authorization.

In search of a contrary Congressional command, Save Jobs notes that

Congress has authorized the spouses of two other categories of visa holders to work.

(Br. at 31-32.) But this expressio unius argument fails for multiple, independent

reasons. First, it has little, if any, force in interpreting the INA. “[T]he expressio

unius canon does not apply ‘unless it is fair to suppose that Congress considered the

unnamed possibility and meant to say no to it,’ and that the canon can be overcome

by ‘contrary indications that adopting a particular rule or statute was probably not

meant to signal any exclusion.’” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381

(2013) (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, (2003), United

States v. Vonn, 535 U.S. 55, 65 (2002)). That has particular force in the agency

context because “a congressional mandate in one section and silence in another often

suggests not a prohibition but simply a decision not to mandate any solution in the

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second context, i.e., to leave the question to agency discretion.” Catawba County v.

EPA, 571 F.3d 20, 36 (D.C. Cir. 2009). The INA is exactly the type of statute where

the expressio unius cannon carries little force. See Creekstone Farms Premium Beef,

L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500 (D.C. Cir. 2008) (when a statute

“contains broad language authorizing the agency to promulgate regulations

necessary to ‘carry out’ the statute, we believe the [expressio unius] doctrine has

minimal, if any, application”). Second, the express grants cited by Save Jobs “were

not passed together as part of the original INA; rather, they were added piecemeal

over time by Congress.” Regents of the Univ. of California v. U.S. Dep’t of

Homeland Sec., 908 F.3d 476, 508 (9th Cir. 2018). “Given this context,” it is

“improbable that Congress ‘considered the … possibility’ of all other potential uses

for [work authorization] ‘and meant to say no’ to any other application of that tool

by the immigration agency.” Id. at 509 (quoting Barnhart, 537 U.S. at 168). Third,

Save Jobs’ expressio unius argument is contrary to the structure of the INA. As

explained, both Congress and the Executive have dual authority to issue work

authorizations. Indeed, Congress has long recognized the Executive’s authority in

this area. (See supra Part V.A-B.) Against this backdrop, the fact that Congress

chose to exercise its authority to grant some groups work authorization says nothing

about Congress’s desire for other groups to have (or not to have) work authorization.

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After all, Congress legislated with the understanding that the Executive could

provide work authorizations as needed unless Congress took contrary action.

Save Jobs next argues that Congress has occasionally considered, and failed

to pass, laws that would have extended work authorization to H-4 visa holders. (Br.

at 32.) The failed legislation says nothing about Congress’s view of the Secretary’s

authority. Indeed, there is little reason to credit Save Jobs’ historical interpretation

because “failed legislative proposals are a particularly dangerous ground on which

to rest an interpretation of a prior statute.” Home Care Ass’n of Am. v. Weil, 799 F.3d

1084, 1093 (D.C. Cir. 2015) (quoting Cent. Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164, 187 (1994)). “Congressional inaction lacks

persuasive significance because several equally tenable inferences may be drawn

from such inaction, including the inference that the existing legislation already

incorporated the offered change.” Cent. Bank of Denver, 511 U.S. at 187 (quoting

Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650, (1990)). Indeed,

reliance on failed legislation is especially inapt here because “Congress was aware”

that the Executive claimed work authorization authority when it considered

extending work authorization to H-4 visa holders, and therefore, Congress’ inaction

could simply mean that Congress did not act because it assumed the Executive would

resolve the issue. LTV Corp., 496 U.S. at 650.

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Without any direct textual hook to refute Chevron, Save Jobs resorts to the

Fifth Circuit’s split decision in Texas v. United States, 809 F.3d 134 (5th Cir. 2015),

to argue that Congress has foreclosed the authority to issue H-4 work authorization.

But Texas does not help. In Texas, a divided Fifth Circuit panel concluded that the

DAPA program—which granted 4.3 million “unlawful aliens” lawful status and

work authorization—conflicted with the INA. Id. at 178-86. Importantly, a number

of the factors the Fifth Circuit relied on to reach its incompatibility holding are not

present in the H-4 program. The Fifth Circuit found salient that:

• “Congress has enacted an intricate process for illegal aliens to derive a


lawful immigration classification from their children's immigration
status.” Id. at 179-80.
• “Congress ‘forcefully made combating the employment of illegal aliens
central to [t]he policy of immigration law,’ in part by ‘establishing an
extensive employment verification system, designed to deny
employment to aliens who … are not lawfully present in the United
States.’” Id. at 181 (internal quotation marks omitted) (quoting
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)).
• “DAPA would make 4.3 million otherwise removable aliens eligible
for lawful presence, employment authorization, and associated
benefits.” Id. at 181.
• “The interpretation of those provisions that the Secretary advances
would allow him to grant lawful presence and work authorization to
any illegal alien in the United States.” Id. at 184.
• DAPA was a decision “of vast ‘economic and political significance.”
Id. at 183 (quoting Util. Air Regulatory Group v. E.P.A., 573 U.S. 302,
324 (2014)).
• DAPA was not an interstitial program meant to bridge the gap to a more
permanent status. Id. at 185.

Fairly construed, none of those features apply to the H-4 program. Unlike

DAPA, the H-4 program does not grant work authorization to “unlawful aliens.”
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Rather, all H-4 visas are given to lawful immigrants, and the H-4 program is

relatively small. Finally, unlike DAPA, the H-4 program is interstitial, providing

temporary work authorization to H-4 spouses as a bridge to either their receipt of

Legal Permanent Resident status or their voluntary departure. Indeed, on its own

terms, Texas is not applicable here, as the Texas majority noted “we conclude only

that the INA does not grant the Secretary discretion to grant deferred action and

lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.”

Texas, 809 F.3d at 186 n.202. For these reasons, most courts have refused to apply

Texas’s statutory holding to cases involving DACA. E.g., Regents of the Univ. of

California v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 510 (9th Cir. 2018); Nat’l

Ass’n for the Advancement of Colored People v. Trump, 315 F. Supp. 3d 457, 472

(D.D.C. 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 426 (E.D.N.Y. 2018).

The same result should apply here; Texas says nothing about the authority to issue

H-4 work authorization.

E. Save Jobs’ Remaining Extra-Textual Arguments Lack Merit

Save Jobs makes a number of additional, non-textual arguments; each is

without merit.

First, Save Jobs claims that DHS’s claim of work-authorization authority is

recent. (Br. at 32-36.) That is simply untrue. Since Section 1103 was enacted in 1952,

INS, and later DHS, have interpreted that provision to allow for work authorizations.

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Nor is Save Jobs correct that the H-4 Rule relies exclusively on power derived from

Section 1324a(h). To the contrary, the H-4 Rule was clear that “[t]he authority of the

[Secretary] for this regulatory amendment can be found in ... 6 U.S.C. 112, and ... 8

U.S.C. 1103(a), which authorize the Secretary to administer and enforce the

immigration and nationality laws.” 80 Fed. Reg. at 10285. Indeed, in the legal

authority section of the final H-4 Rule, DHS made plain that “[i]n addition” to the

power granted in Section 1103, Section 1324a(h), “recognizes the Secretary’s

authority to extend employment to noncitizens in the United States.” Id. There is

nothing novel about that approach. Rather, the Executive has properly taken the view

that Section 1324 recognizes the power conferred in Section 1103 from the

beginning. 52 Fed. Reg. 46,093; 52 Fed. Reg. at 16,221, 16,228.

Second, Save Jobs argues that DHS’s interpretation of Section 1103 is

inconsistent with prior judicial interpretations. (Br. at 42-43.) That is not true, as a

number of courts have found Executive authority to issue work authorization. See,

e.g., Regents of the Univ. of California, 908 F.3d at 508-09; Batalla Vidal, 279 F.

Supp. 3d at 426. Even as to the cases Save Jobs cites, the argument fails because, as

Save Jobs admits, none of the cases it cites are on point. (Br. at 42 (“Before Texas,

no earlier opinion ... had ever addressed the question of whether 8 U.S.C. §§ 1103(a)

and 1324a(h)(3) conferred such authority.”).) Two of its three cases involved

interpretation of specific work authorization rules, not the general power to allow

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work authorization under Section 1103. See, e.g., Int’l Longshoremen's &

Warehousemen’s Union v. Meese, 891 F.2d 1374, 1384 (9th Cir. 1989); Saxbe v.

Bustos, 419 U.S. 65, 66 (1974). The third case did not require recourse to 1103 either

because there the INA specifically precluded the aliens there from receiving work

authorizations. See Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 616 F.

Supp. 1387, 1398 (N.D. Cal. 1985).

Third, Save Jobs contends that in light of the INA’s legislative history, it is

“implausible” that Section 1103 gives DHS the authority to issue work

authorizations. (Br. at 44-47.) On Save Jobs’ reading, the only purpose of the INA

was to “provide[] strong safeguards for American labor.” (Id. at 45.) Save Jobs

misreads the legislative intent. True enough, one purpose of the INA is to ensure

jobs for American workers, but “no legislation pursues its purposes at all costs,” and

therefore, “it frustrates rather than effectuates legislative intent simplistically to

assume that whatever furthers the statute’s primary objective must be the law.”

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987). Consistent with

multifaceted nature of immigration policy, the INA “is a very complex statute which

has many different purposes, some of which may appear at time to be in conflict

with others.” 52 Fed. Reg. at 46092-01, see also id. at 46093 (“It requires a simplistic

view of the purposes of the Act ... to contend that regulations should be promulgated

solely for the purpose of preventing any aliens without labor certification from being

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authorized to accept employment.”). Consistent with these broad and varied

circumstances, the 1952 Congress, rather than attempting to answer the work-

authorization question for all future scenarios, instead delegated broad work

authorization authority to the more “dynamic” Executive Branch. Arizona v. United

States, 567 U.S. 387, 396–97 (2012).

Fourth, Save Jobs contends that if the H-4 program is upheld, administrative

power in this area will be limitless. (Br. at 46-48.) Hardly so. There are internal,

external, and structural limits on DHS’s authority to issue work authorizations.

Internally, Section 1103 requires regulations to be “necessary for carrying out his

authority” to “administ[er] and enforce[]” immigration laws. 8 U.S.C. 1103(a)(3).

The decision that any regulation is necessary can be tested through the normal

process of administrative review. Beyond that, DHS’s power is externally limited by

the remainder of the INA—DHS cannot grant work authorization when doing so is

inconsistent with the INA. Cf. Texas, 809 F.3d at 186 (finding that granting legal

status and work authorization to “unlawful aliens” was inconsistent with the INA).

Last, because there is dual authority to issue work authorizations, Congress always

maintains the authority to require or forbid work authorization as it sees fit. Thus,

Save Jobs’ parade of horribles, see Br. at 47-48 (attacking the B in Lieu of H

program, the DAPA program, the International Entrepreneur Rule, and the F-1

extension), is unfounded.

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CONCLUSION

For these reasons, this Court should affirm the judgment of the district court.

Alternatively, it should remand the case for further proceedings.

Dated: April 8, 2019

Respectfully submitted,

By: s/ Carl E. Goldfarb


Carl E. Goldfarb Lisa Lehner
EVAN EZRAY AMERICANS FOR IMMIGRANT JUSTICE
JOHNATHAN LOTT 6355 NW 36th Street, Suite 2201
BOIES SCHILLER FLEXNER LLP Suite 2201
401 E. Las Olas Blvd. Miami, FL 33166
Ft. Lauderdale, FL 33301 (305) 573-1106
(954) 356-0011

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CERTIFICATE AS TO PARTIES

Pursuant to D.C. Circuit Rule 28(a)(1), the Immigration Voice, Anujkumar

Dhamija, and Sudarshana Sengupta state as follows: In Case No. 16-5287, Save Jobs

USA is the Plaintiff-Appellant; the United States Department of Homeland Security

is the Defendant-Appellee.

Dated: April 8, 2019 By: s/ Carl E. Goldfarb


Carl E. Goldfarb, Esq.

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CERTIFICATE OF COMPLIANCE

Pursuant to and Federal Rule of Appellate Procedure 32(g)(1), Intervenors

certify that this motion complies with the volume limitation of D.C. Circuit Rule

32(e)(2)(B) because it contains 8,990 words. Intervenors further certify that this

motion complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type style requirements of Fed. R. App. P. 32(a)(6), because it has been prepared in

a proportionally spaced typeface using Microsoft Word 14-point Times New Roman

font.

Dated: April 8, 2019 By: s/ Carl E. Goldfarb


Carl E. Goldfarb, Esq.

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USCA Case #16-5287 Document #1781782 Filed: 04/08/2019 Page 54 of 54

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the District of Columbia by using

the appellate CM/ECF system on April 8, 2019.

/s/ Carl E. Goldfarb


Carl E. Goldfarb, Esq.

41