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IMMIGRATION AUGUST 30, 2024 | The Indian Eye 42

Court Upholds Regulation

Issuing Employment Authorization

to H-4 Spouses Even After the

Demise of Chevron Deference

BY CYRUS D. MEHTA AND problems American work- tion to H-4 spouses under 8 conditions authority to al- interpretation of a statute
ers face from foreign labor USC 1184(a)(1), INA 214(a) low F-1 students to remain and to adopt that interpreta-
KAITLYN BOX*
entering the United States (1) (stating that “The admis- for school recommended tion when it reenacts its stat-
job market through visa pro- sion to the United States of practical training after they utes without change. Practi-
n August 2, 2024, the grams” had challenged this any alien as a nonimmigrant complete their coursework”. cal training was authorized
D.C. Court of Ap-
Opeals issued its opin- regulatory provision, 8 C.F.R. shall be for such time and Washtech further asserted even prior to the enactment
§§ 214.2, 274a, arguing that it under such conditions as
INA § 101(a)(15)(F)(i) au-
of the INA in 1952.
ion in Save Jobs USA v. DHS, “exceeded the [DHS]’s stat- the Attorney General may thorizes DHS to allow F-1 Because Save Jobs USA
upholding the regulation that utory authority, and that, in by regulations prescribe…”) students to remain in the did not meaningfully distin-
provides employment autho- adopting it, [DHS] acted ar- and 8 USC 1103(a)(3), INA U.S. only until they have guish its case against H-4
rization to certain H-4 spous- bitrarily and capriciously.” 103(a)(3) (stating that the completed degree program, work authorization from
es of H-1B nonimmigrants. The DC Circuit found DHS Secretary “…shall es- not to pursue post-gradua- the precedent established
Save Jobs USA, an organiza- that DHS is authorized to ex- tablish such regulations; pre- tion practical training. The in Washtech, the DC Circuit
tion aiming to “address the
tend employment authoriza- scribe such forms of bond, DC Circuit upheld DHS’ affirmed the district court’s
reports, entries, and STEM OPT rules, reason- grant of summary judgment
other papers; issue such ing that the STEM OPT ex- in favor of DHS.
instructions; and per- tension is a valid exercise of Save Jobs USA argued
form such other acts as DHS’ authority under INA that Washtech should be dis-
he deems necessary for § 214(a)(1) to promulgate regarded because it did not
carrying out his author- regulations that authorize an address the major questions
ity under the provisions F-1 student’s stay in the U.S. doctrine established by the
of this chapter.”). More- beyond graduation, noting Supreme Court in West Vir-
over, the court held it that practical training is criti- ginia v. EPA, 597 U.S. 697,
had already “interpreted cal to STEM students’ ability 716 (2022), which holds that
the relevant provisions to apply skills learned during courts “expect Congress to
of the INA to answer a their degree programs once speak clearly if it wishes to
similar question in favor they return to their home assign to an agency decisions
of DHS in Washington countries. Judge Pillard, who of vast economic and polit-
Alliance of Technol- authored the opinion, noted ical significance.” The DC
ogy Workers v. DHS, that the U.S. has long per- Circuit gave short shrift to
50 F.4th 164 (D.C. Cir. mitted foreign students to re- this argument, though, stat-
2022) (“Washtech”). main in the country for prac- ing that the purpose of the
As discussed in a prior tical training, beginning with major questions doctrine is
blog, Washtech involved a 1947 rule which “allowed a tool of statutory construc-
a challenge to the 24 foreign students ‘admitted tion “to help courts figure
month Optional Practi- temporarily to the United out what a statute means”.
m of cal Training (OPT) ex- States . . . for the purpose of Because Washtech had
CYRUS D. MEHTA & PARTNERS PLLC tension for STEM grad- pursuing a definite course of already interpreted the rel-
uates by the Washington study’ to remain here for up evant regulations after West

Alliance of Technology to eighteen months following Virginia v. EPA, the court
Workers (Washtech), completion of coursework found that there was no

  a union representing for ‘employment for practical need to overturn Save Jobs
   
­
€
‚   tech workers. Washtech training’ as required or rec- USA v. DHS as Washtech
argued that “the stat- ommended by their school”. remained good law. Un-
utory definition of the Under Lorillard v. Pons, der stare decisis a future
F-1 visa class precludes 434 U.S. 575, 580 (1978), court lacks the authority
the Secretary from ex- Congress is presumed to be to say a previous court was
2 6th Floor

    ercising the time-and aware of an administrative wrong about how it resolved

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