United States District Court, District of Columbia
ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Washington Alliance of Technology Workers, a collective-bargaining organization that represents science, technology, engineering, and mathematics ("STEM") workers, has sued the U.S. Department of Homeland Security ("DHS"). Plaintiff challenges an interim final rule promulgated by defendant DHS in April 2008 extending, for eligible STEM students, the duration of optional practical training ("OPT"), which allows nonimmigrant foreign nationals on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. See 8 C.F.R. § 214.2(f)(10)(ii). Before this Court are the parties' cross motions for summary judgment. (Pl.'s Cross Mot. for Summ. Judgment or Judgment on the Administrative Record [ECF No. 25] ("Pl.'s Mot.")); Def.'s Mot. for Summ. Judgment [ECF No. 27] ("Def.'s Mot.").) For the following reasons, both motions will be granted in part and denied in part.
The Immigration and Nationality Act ("INA") creates several classes of nonimmigrants who are permitted to enter the United States for a limited time and for a specific purpose. 8 U.S.C. § 1101(a)(15). This case involves two such classes. First, F-1 visas provide entry for individuals who qualify as
an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study... at an established... academic institution....
Id. § 1101(a)(15)(F)(i). Second, H-1B visas cover individuals who fall into the following category:
an alien... who is coming temporarily to the United States to perform services... in a specialty occupation... and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under section 212(t)(1)....
Id. § 1101(a)(15)(H)(i)(b). A "specialty occupation" requires the attainment of a bachelor's degree. Id. § 1184(i)(1). An alien may not obtain an H-1B visa unless his employer has certified, among other things, that the alien will be paid at least "the prevailing wage level for the occupational classification in the area of employment." Id. § 1182(t)(1). The total number of H-1B visas is currently capped by Congress at 65, 000 per year. Id. § 1184(g).
The INA gives the Executive Branch authority to issue regulations governing the admission of nonimmigrants. See id. § 1184(a)(1) ("The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe...."). For almost 70 years, DHS and its predecessor, the Immigration and Naturalization Service ("INS"), have interpreted the immigration laws to allow students to engage in employment for practical training purposes. See 12 Fed. Reg. 5355, 5357 (Aug. 7, 1947) ("In cases where employment for practical training is required or recommended by the school, the district director may permit the student to engage in such employment for a six-month period subject to extension for not over two additional six-month periods...."). At present, students may engage in OPT "[a]fter completion of the course of study, or, for a student in a bachelor's, master's, or doctoral degree program, after completion of all course requirements for the degree." 8 C.F.R. § 214.2(f)(10)(ii)(A)(3). The employment must be "directly related to the student's major area of study." Id. § 214.2(f)(10)(ii)(A). Before 2008, a student could only be authorized for 12 months of practical training, which had to be completed within a 14-month window following the student's completion of his course of study. See id. § 214.2(f)(10) (2007).
In April 2008, DHS issued an interim final rule with request for comments that extended the period of OPT by 17 months for F-1 nonimmigrants with a qualifying STEM degree. Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions, 73 Fed. Reg. 18, 944 (Apr. 8, 2008) ("2008 Rule"). As such, STEM students can now engage in a maximum of 29 months of OPT. See 8 C.F.R. § 214.2(f)(10)(ii)(C). In describing the purpose of the 2008 Rule, DHS explained that "the H-1B category is greatly oversubscribed, " with visa applications reaching the 65, 000-person cap progressively earlier every year since 2004. 2008 Rule at 18, 946. In 2007, the cap was reached on April 2, the first business day for filing. Id. As a consequence,
OPT employees often are unable to obtain H-1B status within their authorized period of stay in F-1 status, including the 12-month OPT period, and thus are forced to leave the country. The inability of U.S. employers, in particular in the fields of science, technology, engineering and mathematics, to obtain H-1B status for highly skilled foreign students and foreign nonimmigrant workers has adversely affected the ability of U.S. employers to recruit and retain skilled workers and creates a competitive disadvantage for U.S. companies.
Id. DHS concluded that the 2008 Rule would alleviate the "competitive disadvantage faced by U.S. high-tech industries" and would "quickly ameliorate some of the adverse impacts on the U.S. economy" by potentially adding "tens of thousands of OPT workers... in STEM occupations in the U.S. economy." Id. at 18, 947-50. DHS noted that the 2008 Rule was issued without notice and public comment "[t]o avoid a loss of skilled students through the next round of H-1B filings in April 2008." Id. at 18, 950. Since promulgating this interim rule, DHS has on several occasions modified, without notice and comment, the list of disciplines that qualify for the STEM extension via updates to their website. ( See Pl.'s Mot., App. A [ECF No. 25-2] at 34-35.)
Plaintiff filed suit on March 28, 2014. In Counts I-III, plaintiff alleges that the OPT program exceeds DHS's statutory authority and conflicts with other statutory requirements, including the labor certifications related to H-1B visas. In Count IV, plaintiff argues that DHS acted arbitrarily and capriciously in promulgating the 2008 Rule. In Count V, plaintiff argues that DHS lacked good cause to waive the notice and comment requirement in promulgating the rule. In Count VI, plaintiff contends that DHS's reference to an external website to list the STEM courses of study violates the relevant rules on incorporation by reference. In Counts VII-VIII, plaintiff claims that DHS improperly failed to allow for notice and comment before issuing the 2011 and 2012 modifications of the list of STEM disciplines. And in Count IX, plaintiff argues that the 2008 Rule and the subsequent 2011 and 2012 modifications exceeded DHS's statutory authority.
On November 21, 2014, this Court granted in part and denied in part defendant's motion to dismiss. Wash. Alliance of Tech. Workers v. DHS, No. 14-cv-529, 2014 U.S. Dist. LEXIS 163285 (D.D.C. Nov. 21, 2014). First, the Court dismissed Counts I-III on the ground that "the Complaint does not identify a single WashTech member who has suffered an injury as a result of the twelve-month OPT program." Id. at *9. In the alternative, this Court held that Counts I-III were barred by APA's six-year statute of limitations. See id. at *10 n.3. The Court found, however, that the complaint did allege sufficient facts to confer onto plaintiff standing to challenge the 2008 Rule and the 2011 and 2012 modifications. See id. at *15. Plaintiff filed an Amended Complaint on December 15, 2014. ( See First Am. Compl. for Declaratory and Injunctive Relief [ECF No. 20] ("Compl.").)
The parties have now filed cross motions for summary judgment.
This Court has already held that "plaintiff's Complaint... is sufficient to establish Article III standing." Wash. Alliance, 2014 U.S. Dist. LEXIS 163285, at *15. The Court found that the complaint alleged that plaintiff's "named members, who have technology-related degrees in the computer programming field and have applied for STEM employment during the relevant time period, were in direct and current competition with OPT students on a STEM extension" and that "[t]his competition resulted in a concrete and particularized injury." Id. Nevertheless, defendant now argues that "[b]ecause Plaintiff has failed to provide the required specific, particularized evidence necessary to demonstrate that its three members are in direct and current competition for jobs with OPT students on STEM extensions, its members lack competitor standing and consequently, Plaintiff lacks associational standing to proceed." ( See Def.'s Mem. of Law. in Opp. to Pl.'s Cross Mot. for Summ. Judgment [ECF No. 36] ("Def.'s Opp.") at 2.)
To establish constitutional standing, plaintiff must demonstrate that (1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to defendant's challenged conduct, and (3) the injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). "The party invoking federal jurisdiction bears the burden of establishing' standing - and, at the summary judgment stage, such a party can no longer rest on... mere allegations, but must set forth by affidavit or other evidence specific facts.'" Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1148-49 (2013) (quoting Lujan, 504 U.S. at 561). Because plaintiff is an association seeking to establish standing to sue on behalf of its members, it must show that "(1) at least one of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit." Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)). Only the first element of this test is at issue here. See Wash. Alliance, 2014 U.S. Dist. LEXIS 163285, at *8.
Plaintiff argues that its members have been injured by DHS's OPT program because that program "increase[s] the number of economic competitors" and "expose[s] Washtech members to unfair competition by allowing aliens to work under rules in which they are inherently less expensive to employ." (Pl.'s Mot. at 12.) "The competitor standing doctrine recognizes parties suffer constitutional injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition.'" Mendoza v. Perez, 754 F.3d 1002, 1011 (D.C. Cir. 2014) (quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998)). "A party seeking to establish standing on the basis of the competitor standing doctrine must demonstrate that it is a direct and current competitor whose bottom line may be adversely affected by the challenged government action.'" Id. at 1013 (quoting KERM, Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir. 2004)). In the competitor sales context, the D.C. Circuit has held that "petitioners sufficiently establish their constitutional standing by showing that the challenged action authorizes allegedly illegal transactions that have the clear and immediate potential to compete with the petitioners' own sales. They need not wait for specific, allegedly illegal transactions to hurt them competitively." La. Energy & Power Auth., 141 F.3d at 367 (quoting Associated Gas Distribs. v. FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990)).
Plaintiff has submitted substantial evidence to support its standing, including affidavits from its president and three of its members. ( See Aff. of Douglas J. Blatt [ECF No. 25-1] ("Blatt Aff."); Aff. of Rennie Sawade [ECF No. 25-1] ("Sawade Aff."); Aff. of Michael Schendel [ECF No. 25-1] ("Schendel Aff."); Aff. of Ceasar Smith [ECF No. 25-1] ("Smith Aff.").) Douglas Blatt states that he is "employed currently as a computer programmer" and lists twelve programming jobs that he applied for between 2010 and 2012. ( See Blatt Aff. ¶¶ 7-18.) Rennie Sawade states that he is "employed currently as a temporary programmer" working "on a contract basis" and that he applied for programming jobs at numerous software companies between 2010 and 2014, including Microsoft, Amazon, and Facebook. (Sawade Aff. ¶¶ 6-37.) Ceasar Smith states that he is a "temporary computer systems and network administrator" and that he applied for computer technician and computer system administrator positions at multiple companies between 2008 and 2014. (Smith Aff. ¶¶ 5-43.) Michael Schendel, plaintiff's president, notes that "[m]any employers openly solicit OPT participants for jobs to the exclusion of WashTech members, " and he includes with his affidavit one such solicitation seeking a software engineering in Redmond, Washington, the location of Microsoft. (Schendel Aff. ¶ 12.) In addition to these affidavits, plaintiff has submitted dozens of job listings seeking individuals with computer programming experience. ( See Pl.'s Mot., App. B [ECF No. 25-3].) Many of these job advertisements are limited to, or at least targeted at, OPT candidates. ( E.g., id. at 7, 17, 35, 53.) Others state that OPT status is "preferred" or list OPT as one of several acceptable statuses. ( E.g., id. at 9, 11, 24, 40, 93.)
This evidence is more than sufficient to support plaintiff's constitutional standing. The affidavits from Blatt, Sawade, and Smith demonstrate that they are "part of the computer programming labor market, a subset of the STEM market." Wash. Alliance, 2014 U.S. Dist. LEXIS 163285, at *14. The affidavits also show that those individuals "have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008." Id. The 2008 Rule was explicitly intended to increase the number of foreign nationals competing for jobs in the STEM labor market. See 2008 Rule at 18, 953 ("This rule will... add an estimated 12, 000 OPT students to the STEM-related workforce.... [T]his number represents a significant expansion of the available pool of skilled workers."). These facts alone suffice to show that the regulation "ha[s] the clear and immediate potential " to expose plaintiff's members to increased workforce competition. La. Energy & Power Auth., 141 ...