Save Jobs USA v. DHS

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 27, 2019 Decided November 8, 2019 No. 16-5287 SAVE JOBS USA, APPELLANT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, OFFICE OF GENERAL COUNSEL, APPELLEE ANUJKUMAR DHAMIJA, ET AL., INTERVENORS Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00615) John M. Miano argued the cause for appellant. With him on the briefs were Dale Wilcox and Michael Hethmon. Matthew J. Glover, Attorney, U.S. Department of Justice, argued the cause for appellee. On the brief were Glenn M. Girdharry, Assistant Director, and Joshua S. Press, Trial Attorney. Erez Reuveni, Assistant Director, entered an appearance. 2 Carl E. Goldfarb argued the cause and filed the brief for intervenors. Paul W. Hughes, Michael B. Kimberly, Jason Oxman, Steven P. Lehotsky, Michael B. Schon, and Peter C. Tolsdorf were on the brief for amici curiae The Chamber of Commerce of the United States, et al. in support of appellees. Before: TATEL and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: Save Jobs USA, an association representing Southern California Edison workers, challenges a Department of Homeland Security rule that permits certain visa holders to seek lawful employment. The district court found that Save Jobs lacked Article III standing and granted summary judgment in the Department’s favor. We reverse. For the reasons set forth in this opinion, we conclude that Save Jobs has demonstrated that the rule will subject its members to an actual or imminent increase in competition and that it therefore has standing to pursue its challenge. I. Our nation’s immigration laws distinguish between two categories of foreign nationals seeking admission to the United States: “nonimmigrants,” who plan to stay in the country only temporarily, and “immigrants,” who plan to stay permanently. See 8 U.S.C. § 1184(b) (“Every alien . . . shall be presumed to be an immigrant until he establishes . . . that he is entitled to a nonimmigrant status . . . .”); id. § 1101(a)(15) (setting forth nonimmigrant classifications). The rule challenged here 3 attempts to ease the burdens faced by certain nonimmigrants during their often-lengthy transition to immigrant status. The Immigration and Nationality Act authorizes the admission of nonimmigrants “to perform services . . . in a specialty occupation,” id. § 1101(a)(15)(H)(i)(b), and those specialty workers’ spouses, id. § 1101(a)(15)(H). Specialty workers admitted under this provision receive H–1B visas, which permit them to work in the occupation for which they were admitted. 8 C.F.R. § 214.2(h)(1)(i), (ii)(B). The specialty workers’ spouses receive H–4 visas, which permit the spouses to reside in the United States but do not authorize them to work. Id. § 214.2(h)(9)(iv). Generally, H–1B visa holders and their H–4 spouses may reside in the country for a maximum of six years, after which time they must depart and remain abroad for at least one year before seeking to reenter in the same status. 8 U.S.C. § 1184(g)(4); ...

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