United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Filed February 1, 2023
`
`No. 21-5028
`
`WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
`APPELLANT
`
`v.
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
`AL.,
`APPELLEES
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:16-cv-01170)
`
`On Petition for Rehearing En Banc
`
`Before: SRINIVASAN, Chief Judge; HENDERSON**, MILLETT,
`PILLARD, WILKINS, KATSAS*, RAO***, WALKER, CHILDS, and
`PAN*, Circuit Judges.
`
`O R D E R
`
`Appellant’s petition for rehearing en banc and the
`responses thereto were circulated to the full court, and a vote
`was requested. Thereafter, a majority of the judges eligible to
`participate did not vote in favor of the petition. Upon
`
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Filed February 1, 2023
`
`No. 21-5028
`
`WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
`APPELLANT
`
`v.
`
`UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
`AL.,
`APPELLEES
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:16-cv-01170)
`
`On Petition for Rehearing En Banc
`
`Before: SRINIVASAN, Chief Judge; HENDERSON**, MILLETT,
`PILLARD, WILKINS, KATSAS*, RAO***, WALKER, CHILDS, and
`PAN*, Circuit Judges.
`
`O R D E R
`
`Appellant’s petition for rehearing en banc and the
`responses thereto were circulated to the full court, and a vote
`was requested. Thereafter, a majority of the judges eligible to
`participate did not vote in favor of the petition. Upon
`
`
`
`2
`
`consideration of the foregoing, it is
`
`ORDERED that the petition be denied.
`
`Per Curiam
`
`FOR THE COURT:
`Mark J. Langer, Clerk
`
`BY:
`
`/s/
`Daniel J. Reidy
`Deputy Clerk
`
`* Circuit Judges Katsas and Pan did not participate in this
`matter.
`
`** Circuit Judge Henderson would grant the petition for
`rehearing en banc. A statement by Circuit Judge Henderson,
`dissenting from the denial of rehearing en banc, is attached.
`
`*** Circuit Judge Rao would grant the petition for rehearing
`en banc. A statement by Circuit Judge Rao, joined by Circuit
`Judge Henderson, dissenting from the denial of rehearing en
`banc, is attached.
`
`
`
`
`KAREN LECRAFT HENDERSON, Circuit Judge, dissenting
`from the denial of rehearing en banc: For the reasons explained
`in my panel dissent, which is hereby incorporated by reference
`thereto, Wash. All. of Tech. Workers v. DHS (“Washtech”),
`50 F.4th 164, 194–206 (D.C. Cir. 2022) (Henderson, J.,
`concurring in part and dissenting in part), I dissent from the
`denial of rehearing en banc.
`
`
`
`
`
`
`
`RAO, Circuit Judge, with whom Circuit Judge HENDERSON
`joins, dissenting from the denial of rehearing en banc: For the
`reasons thoughtfully explained in Judge Henderson’s dissent,
`the panel’s interpretation of the F-1 student visa provision
`cannot be reconciled with the text and structure of the
`Immigration and Nationality Act (“INA”). Rehearing en banc
`is warranted because
`the panel decision has serious
`ramifications for the enforcement of immigration law. In
`holding that the nonimmigrant visa requirements are merely
`conditions of entry, the court grants the Department of
`Homeland Security (“DHS”) virtually unchecked authority to
`extend the terms of an alien’s stay in the United States. This
`decision concerns not only the large number of F-1 visa
`recipients, but explicitly applies to all nonimmigrant visas and
`therefore has tremendous practical consequences for who may
`stay and work in the United States. By replacing Congress’s
`careful distinctions with unrestricted Executive Branch
`discretion, the panel muddles our immigration law and opens
`up a split with our sister circuits. This is a question of
`exceptional importance, and I respectfully dissent from the
`decision not to rehear it as a full court.
`
`* * *
`
`This case involves a challenge to a DHS regulation that
`allows F-1 student visa holders to remain in the country after
`they graduate and to work in fields related to their area of study
`for up to 36 months. Improving and Expanding Training
`Opportunities for F-1 Nonimmigrant Students with STEM
`Degrees and Cap-Gap Relief for All Eligible F-1 Students, 81
`Fed. Reg. 13,040, 13,087 (Mar. 11, 2016). Under the INA, the
`F-1 designation requires an alien to be a “bona fide student
`qualified to pursue a full course of study” who “seeks to enter
`the United States temporarily and solely for the purpose of
`pursuing such a course of study.” Immigration and Nationality
`Act, Pub. L. No. 82-414, § 101(a)(15)(F), 66 Stat. 163, 168
`(1952) (codified as amended at 8 U.S.C. § 1101(a)(15)(F)(i)).
`
`
`
`2
`
`Despite the requirements that an F-1 visa go to a person who is
`a “bona fide student” seeking “solely” to pursue a course of
`study in the United States, the majority concludes that DHS has
`general authority to extend an F-1 visa for any “reasonably
`related” purpose. See Wash. All. of Tech. Workers v. DHS
`(“Washtech”), 50 F.4th 164, 178 (D.C. Cir. 2022). On the
`majority’s reading, the highly specific requirements of the F-1
`provision define only requirements of entry, rather than
`ongoing conditions for an alien to remain in the United States.
`The majority explicitly recognizes that its reasoning and
`analysis applies to all nonimmigrant categories. See id. at 169,
`189.
`
`The panel opinion turns Congress’s carefully calibrated
`scheme on its head. The INA enumerates 22 categories of
`“nonimmigrants” who may be eligible for visas to come to the
`country temporarily, with many categories further divided into
`specific subcategories. See 8 U.S.C. § 1101(a)(15)(A)–(V).
`The nonimmigrant categories are precisely delineated,
`reflecting Congress’s judgments as to which aliens may be
`admitted into the country and for what reason. For instance, an
`E-3 visa is available to an alien seeking “to perform services in
`a specialty occupation in the United States” but only “if the
`alien is a national of the Commonwealth of Australia.” Id.
`§ 1101(a)(15)(E)(iii). An H-2A visa is available to an alien
`seeking to perform “agricultural labor,” but only such labor as
`explicitly “defined in section 3121(g) of title 26,” “as defined
`in section 203(f) of title 29,” or “the pressing of apples for cider
`on a farm.” Id. § 1101(a)(15)(H)(ii)(a).
`
`These provisions exemplify Congress’s detailed attention
`to the very specific conditions that attach to each nonimmigrant
`visa. Nonetheless,
`the panel concludes such statutory
`requirements apply only at the moment of entry. DHS therefore
`may “regulate how
`long and under what conditions
`
`
`
`3
`
`nonimmigrants may stay in the country.” Washtech, 50 F.4th at
`170. Although Congress has set out the conditions for entry,
`the panel draws the surprising conclusion that DHS may
`prescribe different criteria for staying in the United States.
`
`Under the majority’s approach, DHS is left with wide
`discretion to determine which aliens may remain in the country
`even after the grounds for their visa have lapsed. The only
`constraint identified by the panel is that an extended stay must
`be “reasonably related” to the particular visa category. See id.
`at 178–79. This capacious standard could distort other
`nonimmigrant
`categories,
`allowing,
`for
`instance,
`an
`agricultural worker admitted under an H-2A visa to remain in
`the country even if he abandons his agricultural work and opts
`instead to pursue a degree in agricultural sciences. Glossing
`over Congress’s delineation of dozens of discrete categories,
`the majority’s interpretation effectively erases the INA’s very
`specific requirements the moment an alien enters the United
`States.1
`
`The panel’s holding that DHS has general discretion to
`permit lengthy work stays for nonimmigrants is similarly
`difficult to square with the detailed statutory requirements for
`work visas. Congress has enumerated specific pathways for
`aliens to work. Some, such as the H-1B visa for skilled workers
`and the H-2B visa for nonagricultural workers, are subject to
`annual numerical limits. See 8 U.S.C. § 1184(g)(1). Allowing
`
`1 The fact that DHS has long granted some extensions of the F-1 visa
`does not change the question of whether the agency has authority to
`do so. Agencies may exercise only the authority granted by Congress
`and such authority cannot be conferred by silence. See Bowen v.
`Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic
`that an administrative agency’s power to promulgate legislative
`regulations is limited to the authority delegated by Congress.”).
`
`
`
`4
`
`F-1 students to work does an end run around these numerical
`limits
`for
`skilled workers because
`they are often
`interchangeable. See Washtech, 50 F.4th at 203 (Henderson, J.,
`concurring in part and dissenting in part) (observing that F-1
`visa holders working after completion of their studies have
`“surpassed the H-1B visa program as the greatest source of
`highly skilled guest workers”).
`
`The INA’s provisions for work visas reflect political
`judgments balancing the competing interests of employers and
`American workers. Such detailed legislation is incompatible
`with assuming a broad delegation to DHS to confer additional
`work visas through regulation. As the Supreme Court recently
`emphasized, “extraordinary grants of regulatory authority”
`require not “a merely plausible textual basis for the agency
`action” but “clear congressional authorization.” West Virginia
`v. EPA, 142 S. Ct. 2587, 2609 (2022) (cleaned up). Here, as
`Judge Henderson explained, there is not even a plausible
`textual basis for DHS to allow student visa holders to remain
`in the country and work long after their student status has
`lapsed. See Washtech, 50 F.4th at 198–204 (Henderson, J.,
`concurring in part and dissenting in part).
`
`The majority’s argument to the contrary rests on a
`fundamental misreading of the statute. The central claim for
`DHS’s broad authority is that the INA contemplates a two-step
`process: nonimmigrant categories specify “entry conditions,”
`while the “post-arrival” requirements are “spelled out pursuant
`to section 1184(a)(1).” Id. at 169–70 (majority opinion).
`Section 1184(a)(1), however,
`is not about post-arrival
`requirements. Rather, it provides that “[t]he 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.” 8 U.S.C. § 1184(a)(1) (emphasis
`added). DHS’s regulatory authority to set time and conditions
`
`
`
`5
`
`applies only to “admission.” If there were any doubt about the
`plain meaning of the term, “admission” is explicitly defined as
`“the lawful entry of the alien into the United States.” 8 U.S.C.
`§ 1101(a)(13)(A) (emphasis added).
`
`It is therefore quite clear that section 1184(a)(1) allows
`DHS to prescribe regulations that govern aliens’ entry into the
`country, but does not provide independent authority for
`expanding “post-arrival” stays and work authorization. If the
`nonimmigrant categories define only the terms of “entry,” as
`the majority holds, then DHS’s regulatory authority over
`“admission” is similarly limited to the terms of entry.
`
`The interpretation most consistent with the text and
`structure of the INA is that the criteria that apply at admission
`continue to govern a nonimmigrant’s stay in the country after
`entry. DHS has authority to fill in the details of these statutory
`requirements by promulgating regulations under section
`1184(a)(1). For instance, DHS has permitted F-1 students a
`short period of time to remain in the country after they
`graduate, because students are not expected to depart the
`moment their studies end. See 8 C.F.R. § 214.2(f)(5)(iv).
`Providing such details is reasonably within the authority to set
`the time and conditions of admission.
`
`Section 1184(a)(1), however, does not provide authority
`for DHS to allow F-1 visa holders to stay and work in the
`United States for years after they are no longer students. Such
`valuable benefits are entirely distinct from the time and
`conditions of admission. This plain meaning is consistent with
`binding circuit precedent, in which we have held the F-1 visa
`provision imposes ongoing conditions. See Anwo v. INS, 607
`F.2d 435, 437 (D.C. Cir. 1979) (per curiam) (holding that if an
`F-1 student visa holder “did intend to make the United States
`his permanent home and domicile, then he violated the
`
`
`
`6
`
`conditions of his student visa and was not here ‘lawfully’”).
`The panel majority, however, fails even to cite this binding
`circuit precedent.2
`
`In light of the clear statutory directives, it is unsurprising
`that no court of appeals has adopted the approach taken by the
`panel majority. In fact, the Supreme Court and other circuits
`have consistently held nonimmigrant visa holders must satisfy
`the statutory criteria both at entry and during their presence in
`the United States. See, e.g., Elkins v. Moreno, 435 U.S. 647,
`666–67 (1978) (“Of course, should a G-4 alien terminate his
`employment with an international treaty organization, both he
`and his family would lose their G-4 status.”); Khano v. INS,
`999 F.2d 1203, 1207 & n.2 (7th Cir. 1993) (stating the
`immigration authorities may deport “those nonimmigrants who
`fail to maintain the conditions attached to their nonimmigrant
`status while in the United States”); Graham v. INS, 998 F.2d
`194, 196 (3d Cir. 1993) (holding that if an alien on a temporary
`worker visa planned “to make the United States his domicile,
`then he violated the conditions of his visa and his intent was
`not lawful”); Castillo-Felix v. INS, 601 F.2d 459, 464 (9th Cir.
`1979) (holding that aliens who “are here for a temporary
`purpose” yet intend to remain in the country “violate the terms
`of their admission and are no longer here lawfully”).
`
`
`2 The majority primarily relies on a nearly fifty-year old Third Circuit
`decision. See Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977). But that
`opinion merely stated a particular nonimmigrant visa provision was
`“silent as to any controls to which … aliens will be subject after they
`arrive in this country.” Id. at 622–23. The opinion nowhere stated the
`nonimmigrant requirements apply only at entry, and the Third Circuit
`has subsequently interpreted a nonimmigrant visa provision as
`imposing ongoing conditions during an alien’s presence in the
`United States. Graham v. INS, 998 F.2d 194, 196 (3d Cir. 1993).
`
`
`
`7
`
`Inconsistent with the text and the structure of the INA, the
`panel’s decision has also created a lopsided circuit split.
`
`* * *
`
`The program at issue here may be longstanding; it may
`even be good policy for retaining high-skilled graduates who
`will further innovation and economic development. But
`irrespective of the benefits of DHS’s regulations, neither the
`agency nor this court is authorized to rewrite the immigration
`laws established by Congress. The panel decision
`is
`inconsistent with the detailed nonimmigrant visa program,
`which precisely specifies who may enter and for what
`purposes. And the panel’s reasoning applies not just to F-1 visa
`holders, but extends DHS’s authority to confer valuable
`benefits to all nonimmigrant visa holders. Because the legal
`questions are weighty and have important consequences for the
`enforcement of immigration law, I would grant rehearing en
`banc.
`
`
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