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IMMIGRATION OCTOBER 21, 2022 | The Indian Eye 44

A Tale of Two Cases – Washtech v. DHS

and Texas v. USA:

To What Extent can the Executive Branch Allow

Noncitizens to Remain and Work in the US

BY CYRUS D. MEHTA AND The Fifth Circuit confronted a workers. DHS allows eligible recommended by their school”. recently introduced in West
KAITLYN BOX* different issue – that of young students in STEM fields an Under Lorillard v. Pons, 434 Virginia v. EPA, 142 S. Ct. 2587
people who came to the U.S. additional 24 month OPT ex- U.S. 575, 580 (1978), Congress (2022). There the Supreme
o what extent can the and whether they could re- tension beyond the usual 12 is presumed to be aware of an Court held that “in certain
Executive Branch allow main in the country through month OPT period. Washtech administrative interpretation extraordinary cases” where it
Tnoncitizens to remain deferred action. Finding that argued that “the statutory defi- of a statute and to adopt that is unclear whether an agency
and work in the US when there DACA exceeds DHS’ inherent nition of the F-1 visa class pre- interpretation when it reenacts action was authorized by Con-
is no explicit provision in the authority to exercise prosecuto- cludes the Secretary from exer- its statutes without change. gress, “given both separation
Immigration and Nationality rial discretion, the court struck cising the time-and conditions Practical training has been au- of powers principles and a
Act (INA) covering these cat- down the program, though authority to allow F-1 students thorized even prior to the en- practical understanding of leg-
egories of noncitizens? Two deferred action is a well-es- to remain for school recom- actment of the INA in 1952. islative intent, the agency must
courts of appeals have ruled tablished practice like OPT. mended practical training after In previous blogs, we have dis- point to ‘clear congressional
differently in recent decisions. On October 4, 2022, the they complete their course- cussed Congressional authority authorization’ for the author-
One court found authority U.S. Court of Appeals for the work”. Washtech read INA § for OPT at length, see here, ity it claims”. Such extraordi-
while the other court did not. D.C. Circuit issued its opin- 101(a)(15)(F)(i) as authorizing here, here, and here. nary cases where the “major
The D.C. Circuit addressed ion in Washington Alliance DHS to allow F-1 students to In Texas v. U.S., decided questions” doctrine is invoked
the question of F-1 students of Technology Workers v. the remain in the U.S. only un- on October 5, 2022, the U.S. have vast economic and politi-
and whether they could remain U.S. Department of Homeland til they have completed their Court of Appeals for the Fifth cal significance. Interestingly,
in the U.S. after graduation Security (“Washtech v. DHS”). course of study, as the provi- Circuit ruled that the Deferred the dissent in Washtech indi-
for practical training. Citing The case involved a challenge sion does not specifically men- Action for Childhood Arrivals cated that the issue of whether
DHS’ authority under INA § to the STEM Optional Practi- tion post-graduation practical (DACA) program is unlawful, DHS’ 2016 OPT Rule exceeds
214(a)(1) and the long history cal Training (OPT) rules by the training. The court affirmed a upholding an earlier decision its statutory authority is a “ma-
of post-graduation practical Washington Alliance of Tech- district court judgment that up- by Judge Andrew Hanen of the jor question”. Finding that the
training, the court upheld OPT. nology Workers (Washtech), held DHS’ current OPT rules. United States District Court major questions doctrine ap-
a union representing tech The court reasoned that the for the Southern District of plied, the dissent in Washtech
STEM OPT extension is Texas. Although the practice directed the district court upon
a valid exercise of DHS’ of deferred action, of which remand to examine whether
authority under in INA § the DACA program is a form, DHS had the authority to is-
214(a)(1) to promulgate has also existed for decades, sue OPT regulations under this
regulations that authorize the Fifth Circuit’s decision was principle.
an F-1 student’s stay in the much less favorable than that In footnote 206, the court
U.S. beyond graduation. of the D.C. Circuit. The court in Texas v. USA cited West
The court further noted reasoned that the DACA pro- Virginia v. EPA in holding
that “practical training not gram exceeds DHS’ inherent that DHS had no Congres-
only enhances the educa- authority to exercise prosecu- sional authority to implement
tional worth of a degree torial discretion, as “declining DACA. The court also held
program, but often is es- to prosecute does not trans- that DACA did not pass the
sential to students’ abil- form presence deemed un- first step of the Chevron test,
ity to correctly use what lawful by Congress into lawful which asks “whether Congress
they have learned when presence and confer eligibility has ‘directly addressed the pre-
they return to their home for otherwise unavailable ben- cise question at issue.’” Chev-
countries. That is espe- efits based on that change”. ron, U.S.A., Inc. v. Nat. Res.
cially so in STEM fields, Further, the court found that Def. Council, Inc., 467 U.S. 837
where hands-on work is there is no “clear congressio- (1984). The court in Washtech
critical for understanding nal authorization” for DACA. analyzed the OPT rule under
fast-moving technologi- In light of a recent regulation the lens of Chevron also, but
cal and scientific devel- promulgated by the Biden ad- gave DHS’ interpretation of
opments.” Judge Pillard, ministration to “preserve and INA § 214(a)(1) deference.
who authored the opinion, fortify” DACA, the case was If the major questions
noted that the concept of remanded to the U.S. District doctrine is implemented in this
post-coursework practical Court for the Southern Dis- way, it could result in fewer
m of training for foreign stu- trict of Texas. Although DACA agency actions receiving Chev-
CYRUS D. MEHTA & PARTNERS PLLC dents predates the Immi- lives for now, it remains on the ron deference. Chevron gives
gration and Nationality respirator as both the district the Biden administration the
Act of 1952, pointing to a court and the Fifth Circuit have ability to interpret the INA by

1947 rule which “allowed consistently held that DACA is implementing OPT and DACA
foreign students ‘admitted not authorized by the INA, and programs, so it is hoped that

  temporarily to the United notwithstanding the new regu- the major questions doctrine
   
­ States . . . for the purpose lation, may still be held to be
€
‚   does not impede the applica-
of pursuing a definite unlawful. tion of this longstanding prec-
course of study’ to remain Though the courts in these edent. Moreover, immigration
here for up to eighteen cases arrived at few different decisions unlike environmen-
months following com-
tal cases ought not to be cases
outcomes, the two decisions
pletion of coursework for share at least one commonal- involving vast economic and
2 6th Floor ‘employment for practical ity – both made reference to political significance. The

   
training’ as required or the “major question” doctrine majority decision in Washtech
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