[00:00:01] Speaker 00: case number fifteen fifty-two thirty-nine washington alliance of technology workers appellant versus united states department of homeland security mister miano for the appellant mister fresco for the athlete good morning your honors john miano for the washington alliance of technology workers and with me is dale wilcox at the at the table [00:00:27] Speaker 03: may please the court. [00:00:28] Speaker 03: The central issue in this case, Your Honor, is whether the Department of Homeland Security has the authority to transform student visas into a guest worker program designed to supply labor to industry. [00:00:39] Speaker 03: We go straight to the statute. [00:00:42] Speaker 03: What about the jurisdictional issue? [00:00:45] Speaker 03: I will be happy to answer your jurisdiction. [00:00:47] Speaker 03: Do you have any questions, Your Honor, about the jurisdiction? [00:00:49] Speaker 05: Well, our precedent for many years suggests that district court orders remanding to agencies are not final or otherwise reviewable in this posture, I believe. [00:01:02] Speaker 05: And we can question where that precedent came from, but it's there, right? [00:01:07] Speaker 05: So what's your response to all that? [00:01:09] Speaker 03: My response here, this is what the district court said to the order. [00:01:14] Speaker 03: The court will stay until February the 12th, 2016, during which time DHS can submit the 2008 rule for proper notice and comment. [00:01:24] Speaker 03: The DHS apparently determined that they're not subpoenaing the 2008 rule to produce and comment. [00:01:30] Speaker 03: So there will never be any subsequent rulemaking that arises out of this order. [00:01:38] Speaker 05: There's a new, I mean, they've gone with a new approach entirely, right? [00:01:44] Speaker 03: I don't understand your question, Your Honor. [00:01:46] Speaker 03: Well, keep going. [00:01:47] Speaker 03: The problem here, I think, is that the Court has created kind of an unusual remedy here in between. [00:01:54] Speaker 03: In the past, where there has been a remand, just remand, [00:02:00] Speaker 03: The court has said you will report back after a certain period of time. [00:02:05] Speaker 03: You're to do a specific thing. [00:02:07] Speaker 03: Here, the court has used the term remand. [00:02:10] Speaker 03: And I think maybe the court has used it without a lot of precision. [00:02:16] Speaker 03: In other cases here, for example, the high and long lines, the court. [00:02:21] Speaker 05: Well, remand is a term we use a lot, too, where someone brings a challenge to an agency rule. [00:02:28] Speaker 05: And we agree that there's some problem of some kind or another with the agency rule, but we're not going to vacate the effectiveness of the agency rule. [00:02:37] Speaker 05: Instead, we're going to send it back to the agency for a fix or a do-over or what have you. [00:02:44] Speaker 05: But in the meantime, the rule will continue in effect. [00:02:47] Speaker 05: And when district courts do that, [00:02:50] Speaker 05: We've said we're not going to review it until it comes back and then we look at the whole thing because it may never come back. [00:02:59] Speaker 05: It's a rule of judicial efficiency, arguably. [00:03:01] Speaker 03: All I have to understand, senior, the problem is normally when a district court makes a remand, they tell the agency to do something. [00:03:09] Speaker 03: Here the district court has not told the agency to do anything at all. [00:03:13] Speaker 03: I mean, isn't that applied? [00:03:16] Speaker 06: I mean, isn't it applied? [00:03:18] Speaker 06: I mean, Mr. Court didn't send it back for no reason, for nothing to happen. [00:03:25] Speaker 06: And we do know what happened. [00:03:27] Speaker 03: We do know what happened here. [00:03:29] Speaker 03: What happened subsequently is DHS created a new rule separate from this. [00:03:34] Speaker 03: And the order doesn't say DHS can create a new rule. [00:03:38] Speaker 03: It doesn't mention a new rule at all. [00:03:40] Speaker 03: But it doesn't prohibit DHS from doing a new rule. [00:03:43] Speaker 03: But they did it. [00:03:44] Speaker 03: What the district court? [00:03:44] Speaker 02: Why wouldn't the new rule then, alternatively, moot the case that you've brought before us? [00:03:51] Speaker 02: Your complaint is all about put aside the statute of limitations issues within 1992. [00:03:58] Speaker 02: the regulation. [00:04:02] Speaker 02: It's all about attack on 2008 and 2011, 2012, all of which are, or at least within a week, will be gone. [00:04:10] Speaker 03: Judge, really, that's not the case because the complaint attacks the entire policy of allowing aliens to work on student visas when they're not students. [00:04:20] Speaker 03: And when a complaint attacks a policy, a subsequent rulemaking does not move the case. [00:04:30] Speaker 02: But the whole basis for deciding that, your challenge to the policy, you'd have to challenge the current regulation. [00:04:37] Speaker 02: And we'd have to decide the lawfulness of that policy on the basis of administrative record that we don't have before us. [00:04:44] Speaker 03: Well, Your Honor, for example here, under the 1992 regulations, which we challenge, those regulations are still in effect. [00:04:51] Speaker 03: The work authorization under the 2000 and the 1992 regulations remains in effect today. [00:04:58] Speaker 02: So there's no... Right, but those were barred by the statute of limitations. [00:05:01] Speaker 03: But not, Your Honor, but not for being in excess of authority under the re-opener doctrine. [00:05:08] Speaker 02: Well, what are you saying reopened here, the 2008 rule or the 2016 forthcoming rule? [00:05:13] Speaker 02: Which one is the reopening? [00:05:14] Speaker 03: We have argued that by... It is well established that if a plaintiff challenges both a specific agency action and... [00:05:36] Speaker 03: Oh, sorry. [00:05:37] Speaker 03: It's the wrong page, Your Honor. [00:05:40] Speaker 03: Where an agency reiterates a policy in such a way as to render the policy subject to a new challenge on any substantive grounds. [00:05:48] Speaker 02: No, I get what the re-opener doctrine is. [00:05:50] Speaker 02: I'm asking you which action you think is doing the reopening, the 2008 rule or the forthcoming 2016 rule? [00:05:57] Speaker 03: The 2008 rule, Your Honor, reopened the 1992 regulations. [00:06:01] Speaker 02: whether it reopened or not, it will disappear into the vapor. [00:06:04] Speaker 02: So there'll be nothing to challenge through, there'll be no 2008 rule to challenge as a reopening of the 1992 issue. [00:06:10] Speaker 03: Your Honor, but the 1992 rule is still in, the work authorization of the 1992 rule is still in effect. [00:06:16] Speaker 02: Which is barred by the statute of limitations, is it not? [00:06:17] Speaker 03: Which was reopened by the, by the. [00:06:20] Speaker 02: It could be reopened by a regulation that doesn't exist. [00:06:23] Speaker 03: Will exist right now, Your Honor. [00:06:25] Speaker 02: Okay, if we don't issue an opinion by May 10th, [00:06:30] Speaker 02: What happens to your re-opener argument then? [00:06:33] Speaker 03: Again, it doesn't say that. [00:06:36] Speaker 03: I've never seen that when something is reopened again, that a subsequent new rule moves the reopening later on. [00:06:45] Speaker 03: Because if that's the case, this could be going on forever and ever and ever. [00:06:49] Speaker 03: Because we could challenge the new rule. [00:06:51] Speaker 03: Jessica put out a new rule on appeal. [00:06:54] Speaker 03: This is an action that's capable. [00:06:56] Speaker 05: Can't she stay in the new rule? [00:06:59] Speaker 03: excuse me, could stay in the new rule. [00:07:02] Speaker 03: Your Honor, but then you would have to show show irreparable harm to get to get a stay in the new rule, which very high standard and our experiences in the court that they don't that the district courts not grant them here for this kind of thing. [00:07:17] Speaker 06: Isn't there a separate jurisdictional problem here in that there's still a claim to be ruled upon by the district court, which is the arbitrary and capricious claim? [00:07:27] Speaker 03: My understanding from the opinion is that there's no intention of the court to rule on that. [00:07:36] Speaker 03: I think it's typical that once the courts reach an outcome on certain count that's going to decide the outcome. [00:07:46] Speaker 03: So for example, here, the court decided that the rule was made without notice of comment, which normally requires a regular rule. [00:07:57] Speaker 03: which is the highest standard, that ruling on arbitrary and your preciousness doesn't get us any farther. [00:08:04] Speaker 03: We've already reached the end state with the notes and comments. [00:08:11] Speaker 06: I don't follow that argument because [00:08:15] Speaker 06: The agency could have simply reissued the exact same rule as it did in 2008, but this time after having notice and comment. [00:08:27] Speaker 06: And then you'd be back before the district court. [00:08:31] Speaker 06: And even though you had lost on your other challenges, your Chevron, etc. [00:08:35] Speaker 06: challenges, you would still have before the district court pending the arbitrary capricious. [00:08:42] Speaker 06: that's correct. [00:08:45] Speaker 06: But in this case, that's that event that, um, that happening is not going to occur. [00:08:59] Speaker 03: But DHS, your honor has said is not going to submit this rule, um, for us to comment. [00:09:06] Speaker 06: Well, you could. [00:09:08] Speaker 06: you could still challenge the 2016 rule in the district court on an arbitrary and capricious basis, right? [00:09:17] Speaker 06: Even if we assume that the district court would uphold the 2016 rule on Chevron and all the other grounds, you could still have a live [00:09:30] Speaker 06: count in your complaint with respect to the arbitrary and capricious argument, right? [00:09:37] Speaker 03: Judge, I disagree because I think that the new 2016 rules is a new lawsuit. [00:09:43] Speaker 02: But there's nothing... Well, you can't have it both ways. [00:09:45] Speaker 02: You can't tell us that the 2008 case is still open for purposes of re-opener doctrine, for bringing forward your 1992 argument, that it's still a live case there. [00:09:56] Speaker 02: but that it's actually moot, the 2008 rule doesn't exist for purposes of arbitrary and capricious challenges. [00:10:04] Speaker 03: Our argument is that the 2008 rule reopened judgment on the 1992 rule. [00:10:14] Speaker 03: It was made for various reasons, including reiterating the previous policy, [00:10:22] Speaker 03: because also because the previous, the 1992 rules were not made with notice and comment and the issues are inseparable. [00:10:32] Speaker 03: So they've been reopened, okay? [00:10:35] Speaker 03: Now that they're reopened, it sounds like you're saying, Your Honor, that once they put a new rule in place, [00:10:41] Speaker 03: Now they're closed and the re-opener doesn't stay in place. [00:10:44] Speaker 02: I thought you were saying that the re-opener doctrine was keeping alive your challenge to this policy through the 2008 rule. [00:10:52] Speaker 02: The 2008 rule is the vehicle for challenging the 1992 policy, which is otherwise barred by the statute of limitations. [00:11:00] Speaker 02: Is that correct, my understanding? [00:11:01] Speaker 03: No, Your Honor. [00:11:04] Speaker 03: In the complaint, the first three counts of the complaint address the policy. [00:11:08] Speaker 02: No, I get that, but the re-opener doesn't mean that we go, okay, here's a new rule. [00:11:13] Speaker 02: Now we'll ignore that 2008 rule and we'll actually go back and look at everything as if it was 1992. [00:11:18] Speaker 02: You look at it through the new rule that did the re-opening. [00:11:23] Speaker 02: So you have to look at the policy through either the 2008 rule-making, [00:11:30] Speaker 02: Or 2016. [00:11:31] Speaker 02: And you said not 2016. [00:11:35] Speaker 02: And if you mean 2008, then you must think you have live claims. [00:11:40] Speaker 03: Yes, Your Honor. [00:11:40] Speaker 03: I don't think we have live claims on the two. [00:11:42] Speaker 02: But then you're giving up. [00:11:42] Speaker 02: You don't have an arbitrary and capricious challenge as well for that same theory? [00:11:46] Speaker 03: We have, Your Honor. [00:11:47] Speaker 03: But it doesn't get us anywhere with the arbitrary and capricious claim. [00:11:52] Speaker 03: Because the district court has already said that it was made without notice and comment. [00:11:57] Speaker 03: And without notice of comment, which means the rule would be vacated. [00:12:01] Speaker 03: If the district courts were to say that the 2008 rule was arbitrary and pernicious as well, then the best that could happen is that they could be vacated, which is the same thing, Your Honor. [00:12:14] Speaker 02: Did you move for entry of a final judgment in the district? [00:12:16] Speaker 02: There's no entry of a final judgment by the district court. [00:12:20] Speaker 03: No, we did not make a motion for entry of final judgment. [00:12:24] Speaker 02: Because what you granted was a partial summary judgment, granted in part, denied in part. [00:12:28] Speaker 03: But granted all, they granted on both sides, and the only ones it didn't deal with were issues that essentially, I think, would be considered redundant. [00:12:41] Speaker 06: Well, I don't believe that the doctrine says that if you bring a nine count complaint, [00:12:50] Speaker 06: and there's no judgment on two of the counts that we just kind of ignore that and consider it to be a final judgment. [00:12:59] Speaker 06: We need to see a judgment entered in the district court as to all nine counts. [00:13:05] Speaker 06: I mean, can you direct me as to why that understanding is wrong? [00:13:11] Speaker 03: Your Honor, if that is your assertion of the law, then I have to accept your statement of the law. [00:13:19] Speaker 03: What I would then ask, if you think there's a jurisdictional issue, what gets us to a final judgment in this case? [00:13:28] Speaker 03: At the time the appeal was filed, [00:13:32] Speaker 03: case is marked closed in the ECF system. [00:13:36] Speaker 03: There's no provisions for future events in the opinion. [00:13:43] Speaker 03: It looks like a duck, cracks like a duck, and walks like a duck here. [00:13:48] Speaker 01: Sorry, you said is there an entry in the docket that says it's closed? [00:13:52] Speaker 01: Because I did not see that in the docket, but if I've missed it. [00:13:55] Speaker 03: If you go into the ECF system, it says case closed. [00:14:01] Speaker 03: And it said that when we filed the appeal. [00:14:05] Speaker 05: You wanted to say a couple things on the merits. [00:14:07] Speaker 05: We'll give you time for a button, but do you want to say a couple things on the merits? [00:14:10] Speaker 03: I'll try. [00:14:11] Speaker 03: There are two. [00:14:12] Speaker 03: I guess I'll try to keep it short. [00:14:15] Speaker 03: I mean, the basic issue here, it started, is whether the Department of Homeland Security has the authority to transform student visas into a guest work program that under the statute [00:14:29] Speaker 03: Student visa status defines a bona fide student solely pursuing a course of study at an approved academic institution that will report termination of attendance. [00:14:39] Speaker 03: So then it's clearly someone attending school. [00:14:42] Speaker 03: However, the regulations of the issue allow people to remain on student visas for years after graduation. [00:14:52] Speaker 03: and then work to provide their labor for the very purpose of providing labor to industry, which is incompatible with being a student. [00:15:02] Speaker 03: What I briefly would say is the implications of this, okay, under the district court's holding that the student [00:15:12] Speaker 03: the definition of student visa status is ambiguous that it could be interpreted as just an entry requirement where the agency is free to do what it wants once it gets here. [00:15:22] Speaker 03: Under that interpretation, every single protection for American workers in the entire immigration system can be wiped out through regulation. [00:15:31] Speaker 03: DHS can simply say, come here on a tourist visa and work. [00:15:37] Speaker 03: Plus, it creates the absurd situation where you have Congress and DHS legislating cross purposes that Congress has said, [00:15:46] Speaker 03: that has created a visa category for this very type of labor, put specific limits on the numbers of workers, created an additional category of quota for foreign students, and then DHS says, oh, we don't like what Congress did, so we're going to circumvent that. [00:16:06] Speaker 05: We'll hear from your opposing counsel, and we'll give you time back for a bottle. [00:16:11] Speaker 03: It would be possibly one other issue. [00:16:14] Speaker 03: I know we're going over time. [00:16:16] Speaker 03: I'll try to read. [00:16:18] Speaker 03: I would like to basically explain how these regulations work. [00:16:22] Speaker 03: And this is related to the re-opener doctrine. [00:16:25] Speaker 03: And the way the system works is under the 1992 regulations, the alien can work for one year. [00:16:32] Speaker 03: The 2008 regulations extended that so that he only could work for up to about 35 months, depends on certain circumstances. [00:16:41] Speaker 03: So the 1992 regulations are in effect to this day. [00:16:46] Speaker 03: The work authorization for the 1992 regulations is in effect to this day and will continue into the new regulations. [00:16:53] Speaker 03: So the district court said there was no standing to challenge the entire policy [00:16:59] Speaker 03: of aliens working on student visas. [00:17:03] Speaker 03: And the effect of that is that we don't have standing to challenge the first year that the alien works on the student visa, but we do have standing to challenge the second and third years, which doesn't make any sense because the injuries act absolutely identical. [00:17:19] Speaker 03: Okay, thank you. [00:17:25] Speaker 04: Good morning, Your Honor. [00:17:26] Speaker 04: May it please the Court. [00:17:27] Speaker 04: My name is Leon Fresco from the Department of Justice. [00:17:29] Speaker 04: I have my colleagues Glenn Gertrude and Erez Redeni with me today. [00:17:34] Speaker 04: Your Honor, while we're certainly happy to discuss any part of the merits of this case, I think at this point we'd like to begin by saying that this lawsuit is no longer viable. [00:17:44] Speaker 04: How and when can they challenge what they see as a [00:17:49] Speaker 04: flagrantly unlawful program. [00:17:51] Speaker 04: Yes, Your Honor. [00:17:51] Speaker 04: I think as my brother counsel just indicated, when he talked about finding irreparable harm, he's going to need to find individuals in the United States who he claims are harmed by the 2016 rule, which he's going to sue about regardless of what would happen in this litigation. [00:18:08] Speaker 04: If this court were to say that the 2008 rule was perfectly fine, he's still going to file a lawsuit anyway under the 2016 rule. [00:18:15] Speaker 04: That lawsuit is inevitable. [00:18:16] Speaker 04: So he would find American workers who he claims have been harmed by the 2016 rule, and he would file that lawsuit, and he could argue again. [00:18:24] Speaker 04: He could argue even though the 2008 rule certainly didn't reopen the 1992 rule, he could argue it again. [00:18:30] Speaker 05: What is the status of the 2008 rule? [00:18:32] Speaker 04: The 2008 rule will be gone in its entirety in six days, on May 10th, Your Honor. [00:18:38] Speaker 04: Okay, and that's completely, it has no effect at all. [00:18:41] Speaker 04: It has no effect. [00:18:42] Speaker 04: It's been replaced by an entirely new program, and that entirely new program. [00:18:45] Speaker 05: They can seek a stay, or injunction, temporary. [00:18:48] Speaker 04: They could file that right now, and they have, as my brother counsel said, they've done that in the past, but they're gonna need to find, which we don't think they found in the prior case, but in their subsequent case, an American worker [00:19:00] Speaker 04: who they claim will actually be harmed by this 2016 rule. [00:19:04] Speaker 04: That's what they'd have to do. [00:19:05] Speaker 05: And this 2016 rule is a substantive... Well, any American worker who would have been a competitor for one of these jobs will be harmed. [00:19:13] Speaker 04: Well, this would clearly be an issue for adjudication, Your Honor. [00:19:17] Speaker 04: Sure. [00:19:17] Speaker 04: But understanding, though, is pretty well established. [00:19:19] Speaker 04: Well, I think, Your Honor, again, if we want to get into the standing question in this case that fits up to you... [00:19:26] Speaker 04: Let's stick with the finality. [00:19:29] Speaker 04: But the point is they can file that lawsuit, certainly. [00:19:31] Speaker 04: And they could argue the same. [00:19:33] Speaker 04: They could say, just like they claim that the 2008 law reopened in 1992, they can make that same claim about the 2016 rule that it reopened. [00:19:42] Speaker 05: And they're frustrated, understandably, because they keep challenging something and it feels like, [00:19:48] Speaker 05: They prevailed, but they didn't really prevail. [00:19:51] Speaker 04: Well, Your Honor, they only prevailed on the notice and comment part. [00:19:54] Speaker 04: They didn't prevail on... Well, only. [00:19:55] Speaker 04: I mean, the agency violated the law on how it promulgated. [00:19:58] Speaker 04: Well, yes, Your Honor. [00:19:59] Speaker 04: And so, if one could look at that on either side of the coin, they prevailed. [00:20:03] Speaker 04: The 2008 rule that they detested no longer existed, so there's no point in continuing with this litigation. [00:20:10] Speaker 04: because that rule no longer exists now. [00:20:12] Speaker 05: It's replaced by a rule that from their perspective is worse, but I guess, I mean, that's for future litigation. [00:20:17] Speaker 04: Well, yes, Your Honor, not only is it for future litigation, but it is just for the court's understanding. [00:20:22] Speaker 04: It is a substantively different rule. [00:20:24] Speaker 04: The employers now have to basically turn into educators. [00:20:28] Speaker 04: and have to have an educational plan in place before one of these OPT extensions is going to be approved. [00:20:35] Speaker 04: So they have to have, it's kind of like, you know, the whole law firm summer internship type thing, but even more, even more than that, where they sort of say, we're going to give you an award. [00:20:44] Speaker 04: I would guess the best example would be a judicial clerkship, in a sense, where you're an employer and an educator. [00:20:50] Speaker 04: And that's what's going to have to happen in these years. [00:20:52] Speaker 04: Well, the clerks aren't students. [00:20:53] Speaker 05: Well, they're not students, but it's certainly a vital part of their... One would say that in the law, that's recognized as a... I mean, this is in the mayors, but the word in the statute, student, to call people who are working full-time job students is... [00:21:06] Speaker 04: Well, there are, there are many, Well, there are many, Your Honor, there are many placements within this OPT. [00:21:14] Speaker 04: There are research grants. [00:21:16] Speaker 04: So, for instance, I finish my degree at, let's say, Stanford, and it's a science degree, and they say, okay, now we're gonna give you a position at Stanford to conduct research on this very thesis that you've done, and that is a quasi-student type of, That's not, that's not the situation they're complaining about. [00:21:34] Speaker 05: What they're complaining about is, [00:21:36] Speaker 05: people who have graduated from school or finished their coursework, who are allowed to stay in the United States for up to three years and replace American workers for these jobs. [00:21:49] Speaker 05: as an end run around the H1 visa category, which is capped by Congress at $65,000. [00:21:55] Speaker 05: And this is an end run by the executive branch because the executive branch, under multiple administrations, doesn't like the H1 cap because it limits the number of foreign workers, nor does Silicon Valley like the H1 cap. [00:22:07] Speaker 04: That's certainly their complaint, Your Honor. [00:22:09] Speaker 04: And my only response, obviously we know about the justiciability issues, but my only response substantively would be that the H-1B as it exists today was invented in 1990. [00:22:19] Speaker 04: And the ability for students to do what you have said is an end run around the statute has existed since 1947. [00:22:25] Speaker 04: Students have been able since 1947, after they graduate, to obtain employment, [00:22:31] Speaker 05: related to their field because Silicon Valley, I mean, I don't need to rehearse all this, but Silicon Valley complained about the limits on this in the 2000s, right on the H one and and proposed to the prior administration just expand this F one and just call them all students and keep them here for three years. [00:22:51] Speaker 04: I would say that that description is a partial description of what happened. [00:22:55] Speaker 04: It wasn't just Silicon Valley. [00:22:56] Speaker 04: It was the universities. [00:22:57] Speaker 04: It was members of Congress. [00:22:58] Speaker 04: I know, I know. [00:22:59] Speaker 04: It was many states. [00:23:00] Speaker 04: So certainly there was this rendition in the papers. [00:23:02] Speaker 04: At least according to the record, it came out of a Microsoft dinner. [00:23:05] Speaker 04: Right, right. [00:23:06] Speaker 04: And that Microsoft dinner was in 2007. [00:23:08] Speaker 04: Just as an example, if you wanted to search, you could find op-eds in the Minneapolis Tribune or whatever the paper is in 2005. [00:23:15] Speaker 04: We should let students work for longer. [00:23:16] Speaker 04: You could go to Congressional Research Service papers from the early 2000s that talk about we should let students work for longer in the OPT status. [00:23:26] Speaker 04: which one shows that congress knows about this because these are in congressional concerns. [00:23:30] Speaker 05: Well, congress knows about it. [00:23:31] Speaker 05: Have they ever approved this? [00:23:32] Speaker 05: Has the administration or the prior administration ever proposed this to congress? [00:23:36] Speaker 04: I think the 1990 statute which said and authorized people to work off campus, not in a park of their field, of their major, was clearly tailoring legislation around the fact that they knew there was a reg available that allowed for [00:23:55] Speaker 04: practical training for education geared toward their major. [00:23:58] Speaker 04: That's why it was drafted that way. [00:24:00] Speaker 04: It wouldn't make any sense to create only educational opportunities for students that were not related to their major. [00:24:07] Speaker 04: But that would be a very bizarre statute to pass in my opinion. [00:24:10] Speaker 02: But then I limited, well I can find it to the STEM category. [00:24:13] Speaker 02: If this really is because we want people to be able to have that [00:24:18] Speaker 02: hands-on learning experience, why wouldn't it apply to teachers who need to be teacher's aides? [00:24:24] Speaker 04: Why confine me reg to the STEM category, Your Honor? [00:24:27] Speaker 04: Yeah, because I think it is an important point to say that as Judge Kavanaugh recognized, this is not a limitless, boundless statute that allows people to work for all people for all purposes. [00:24:39] Speaker 04: There's something unique about [00:24:41] Speaker 04: the STEM fields that require more of an ability to get practical training. [00:24:50] Speaker 02: You know, it's one thing to say, I'm learning about my- Did the agency find that, that teachers don't actually need to be teacher's aides in the classrooms? [00:24:56] Speaker 04: Well, so the 2016 rule goes through all of this and says, here are the nature, the lengths of grants that happen for scientific research here. [00:25:04] Speaker 02: I'm not disputing that you have a theory for that category. [00:25:09] Speaker 02: What I'm trying to understand is why, if this really is all about education, where the agency found in the past, or you can tell me, look at 2016 if you want, that [00:25:19] Speaker 02: Outside this dumb category, that's utterly irrelevant, and there is no such hands-on learning opportunities. [00:25:26] Speaker 04: Well, no, there's 12 months right now for everybody. [00:25:28] Speaker 04: So if your major wasn't sociology, you can do 12 months of sociology. [00:25:32] Speaker 02: Well, why don't sociologists or teachers or teachers in training need 24 months or 48 months? [00:25:38] Speaker 04: I think that was just a policy choice, Your Honor, that the agency made. [00:25:42] Speaker 02: Was it a pedagogically grounded policy choice or the demand from the employers? [00:25:47] Speaker 04: Again, that's not discussed in the 2008 rule. [00:25:50] Speaker 04: It's discussed in the 2016 rule about the tethering of the length of time to the tasks that are needed to get the practical experience that you would get under your educational background. [00:26:05] Speaker 04: I take your honor's point that that's not discussed in the 2008 rule, but that doesn't make the 2008 rule illegal in the end, because the question that would be asked under the 2008 rule would be, is the experience that's being given to these people who are graduating from school furthering their pedagogical training, and I believe it certainly is in that situation. [00:26:31] Speaker 04: not graduating. [00:26:33] Speaker 04: Well, yes, they graduated, your honor, but they are obtaining students. [00:26:37] Speaker 04: Well, they are the if we want to take a look at what that category is in 8 15, that category, when you look at it tied to 11 84 USC 11 84 is it's [00:26:50] Speaker 04: It's a requirement that's telling an adjudicator at a consulate abroad or here at the border, this is the category of person it has to be to grant them a visa. [00:27:00] Speaker 04: This is a critical point, Ron. [00:27:02] Speaker 04: I understand to get you a visa originally. [00:27:05] Speaker 04: Yes. [00:27:06] Speaker 04: But that's what it is, because in A-15, the student visa, it actually says, who seeks to enter. [00:27:12] Speaker 04: If it says, those words, seek to enter, wouldn't make any sense if this wasn't an adjudicatory requirement. [00:27:20] Speaker 05: Couldn't they just stay forever then? [00:27:21] Speaker 04: Well, no, Your Honor, they can't stay forever. [00:27:23] Speaker 05: I think the terms... Couldn't the agency allow them to stay forever by a new regulation under that interesting statutory interpretation? [00:27:33] Speaker 04: Well, the AUSC 1184 gives the Secretary broad authority to set the time and conditions for a visa, but I think there certainly can be a point [00:27:42] Speaker 04: that the times and conditions could become so unpeathered from, so we're not going to say you can stay for 80 years and do whatever you want, but here's a key point, and actually the analogy my brother counsel made was the perfect analogy. [00:27:54] Speaker 04: He said, could they just let visitors work? [00:27:57] Speaker 04: And in fact, Congress actually spoke about this in the B visa. [00:28:01] Speaker 04: It says, you cannot be a visitor here who's performing skilled or unskilled labor. [00:28:05] Speaker 04: They wrote that in the statute because they didn't want someone who was coming on a visitor visa to perform skilled or unskilled labor. [00:28:13] Speaker 04: That provision is not in the F visa, and if you go, which is the student visa? [00:28:18] Speaker 02: If it's just an entry requirement, why does the statute also require them, the schools to report a renewal, even the employers to report if someone stops working or stops going to school? [00:28:30] Speaker 04: What the requirement is that you cannot get that visa, Your Honor, if you're not attending a school that does this. [00:28:37] Speaker 02: I don't know, but once you're in and attending, there's an obligation under the statute to report if someone stops attending, is there not? [00:28:45] Speaker 04: Yes, but that's not in A-15F. [00:28:47] Speaker 04: A-15F says, we will not grant you a visa unless it's to attend a school that does this reporting. [00:28:55] Speaker 04: It's a separate statute that talks about the reporting requirements that are done, what the school has to follow, and that statute was enacted in 2002. [00:29:03] Speaker 02: Why is that there if it's just an entry requirement? [00:29:06] Speaker 04: Well, no, the entry requirement, because that's not an entry requirement, the entry requirement is that a student visa will not be granted if it's not for a school. [00:29:14] Speaker 02: I got that, but then why do we care if they stopped attending school once they're in? [00:29:17] Speaker 02: As long as they came in planning to go to school and then dropped out after six months, that's got, their visa would seem to still be perfectly balanced. [00:29:23] Speaker 02: So what's the point of the report? [00:29:25] Speaker 04: Congress has made the choice that if you are not going to be attending school and you are, you know, basically, well, what Congress has made the choice actually is that the school has to monitor the attendance of that student to determine if the student is attending school or not. [00:29:43] Speaker 04: And that was for safety purposes. [00:29:45] Speaker 04: That was not for, this was done after 9-11, post 2001. [00:29:49] Speaker 04: because people were worried about people entering here on student visas and committing terrorist acts. [00:29:54] Speaker 04: It had nothing to do with fear of workforce situations. [00:29:59] Speaker 04: That was why that was done here. [00:30:01] Speaker 02: Are they still obligated to report when these folks graduate even though they're going off to work? [00:30:04] Speaker 04: So when these folks graduate, they are still in the SEVIS system, which is the Student Exchange Visitor Information System, but now the student is interfacing with the SEVIS system rather than interfacing with the school. [00:30:15] Speaker 02: My question, though, is does the school have to then report this person graduated and is no longer attending? [00:30:20] Speaker 04: The school places on the SEVA system a notation that the student graduated, and then the student would interface with the SEVA system, you know, back through the school when they're on this OPT. [00:30:31] Speaker 04: But I think the 2016 rule actually addresses that issue as well, Your Honor. [00:30:36] Speaker 04: And so that would be another thing that would get, if the court is interested in it, [00:30:41] Speaker 04: would again be more appropriately adjudicated to the 2016 rule. [00:30:45] Speaker 04: And there actually are the cases from this court that talk about when a new rule is in place. [00:30:50] Speaker 04: We prefer to adjudicate under the new rule as opposed to under a rule that no longer exists. [00:30:56] Speaker 04: And more importantly, [00:30:57] Speaker 04: that we need to find people that actually show harm from the new rule. [00:31:01] Speaker 04: We just can't presume that this new rule is harmed. [00:31:03] Speaker 04: And we shouldn't presume it here, because this new rule is actually going to place a lot of burdens on employers that maybe the employers won't want to use this new rule, as a matter of fact. [00:31:14] Speaker 04: And so that might mean that there's no harm for the American workers as part of this rule. [00:31:21] Speaker 05: No, their positions [00:31:23] Speaker 05: that are going to be filled by people on the student visas. [00:31:27] Speaker 05: And if those positions were otherwise filled, they'd have to be filled by U.S. [00:31:30] Speaker 05: citizens. [00:31:32] Speaker 04: Well, that presupposes, again... Correct. [00:31:34] Speaker 04: Unless they don't fill the position. [00:31:36] Speaker 04: I think that... I think... Right. [00:31:37] Speaker 04: That presupposes that there are people here who can fill those positions. [00:31:41] Speaker 04: They don't want... [00:31:42] Speaker 04: And sometimes they really are not, Your Honor. [00:31:44] Speaker 04: I mean, this was sort of my whole experience prior to being in the Department of Justice in the policymaking realm, and there are really not sometimes this fit. [00:31:53] Speaker 04: And I think one of the key standing difficulties that was in this case is that unlike bricklayers or unlike goat herders where there's a one-for-one replacement, all the plaintiffs ever did was show us ads [00:32:05] Speaker 04: that said, well, if you're on OPT, you can apply for our company. [00:32:09] Speaker 04: But they didn't actually show that there was an increase in OPT programmers. [00:32:13] Speaker 04: All of these OPT folks could have been businesses, could have been engineers, could have been designers, could have been a lot of things. [00:32:18] Speaker 04: And if you don't actually show that there's an actual human being on this, even one. [00:32:23] Speaker 04: Show me that there's one human being that's a programmer that's added to your competition. [00:32:28] Speaker 04: They never did it here. [00:32:29] Speaker 04: And the court below never said that. [00:32:32] Speaker 04: And so I always say as an analogy, this would be like if I said I wanted to play football for the Dallas Cowboys, and they hired athletes under the athlete visa to be figure skaters in the halftime show. [00:32:42] Speaker 02: Would they be injured if the company put out an ad saying, we have openings for computer programmers? [00:32:51] Speaker 02: We'd like an OPT applicant. [00:32:55] Speaker 02: No U.S. [00:32:55] Speaker 02: citizens need apply. [00:32:57] Speaker 02: Is that an injury or not? [00:32:59] Speaker 04: I think, first of all, that company is committing an employment law violation. [00:33:03] Speaker 02: Here's my question. [00:33:05] Speaker 02: Would they be injured? [00:33:06] Speaker 04: And I would tell you again, no, Your Honor, unless they prove there's actually an OPT person that exists. [00:33:11] Speaker 02: No U.S. [00:33:12] Speaker 02: citizens need apply, and that's not an injury. [00:33:15] Speaker 04: Well, first of all, that's an illegal act, so we always talk about standing. [00:33:17] Speaker 02: I'm not asking about his lawfulness. [00:33:19] Speaker 02: I'm asking about whether there's a standing injury. [00:33:21] Speaker 02: This person's qualified for that job. [00:33:23] Speaker 04: Right, but the reg doesn't permit that conduct. [00:33:25] Speaker 04: The reg does not permit an employer to do it. [00:33:28] Speaker 02: I'm asking whether that would be an Article III injury. [00:33:32] Speaker 04: No, because the reg doesn't, here's why you're on it. [00:33:35] Speaker 04: It's an Article III injury if the reg had said an employer could do that. [00:33:39] Speaker 04: Of course, then yes, it's an article. [00:33:41] Speaker 04: But if the reg doesn't say that an employer can do that, that's just a, there's tons of case law in this circuit about actions of third parties that are illegal don't create standing. [00:33:52] Speaker 04: That's what you've just described. [00:33:54] Speaker 04: You've described a third party act that's illegal. [00:33:57] Speaker 04: That's not what creates the standing. [00:33:58] Speaker 04: What creates standing is if the rule itself [00:34:00] Speaker 02: is increasing the pool of competition, and what I'm saying is... Let's show us an ad here that said only OPT applicants. [00:34:09] Speaker 04: Right, but the ad just... Was that illegal? [00:34:11] Speaker 04: To give an extreme, it's illegal, but it's an illegal act of a third party. [00:34:14] Speaker 04: It's not being done under the rule. [00:34:16] Speaker 02: Did you guys do something to the company that did that advertisement? [00:34:20] Speaker 04: Well, I have constantly communicated with the Office of Special Counsel who does this at DOJ, as you know, but I can't do anything more than that. [00:34:28] Speaker 04: I pass them emails along all the time about companies who do that, but that's their role. [00:34:33] Speaker 04: My role is to defend the immigration litigation that's in the federal courts, your honor. [00:34:38] Speaker 04: But let me say that to take an extreme example of this question, the ad could say we're only looking for [00:34:46] Speaker 04: people who visited Mars, the ad can say that. [00:34:48] Speaker 04: That doesn't mean there are people who can fill that criteria. [00:34:52] Speaker 04: And that's the point here. [00:34:53] Speaker 04: All they've shown are ads. [00:34:54] Speaker 04: They haven't shown that the OPT program created one additional programmer. [00:34:58] Speaker 04: That's just assumed all through the litigation, but that's not, that's not for you. [00:35:02] Speaker 04: But anyway, the key point is we don't have a life case now, Your Honor, to get back to the beginning. [00:35:07] Speaker 04: And I'm sorry we've gone through this digression. [00:35:10] Speaker 04: That was fascinating. [00:35:11] Speaker 04: But the point is the 2008 rule is there's nothing more to decide. [00:35:17] Speaker 04: They've gotten what they've wanted. [00:35:18] Speaker 04: They're victorious. [00:35:19] Speaker 04: Now there's a 2016 rule, which is substantively different and should be challenged in the court, Your Honor. [00:35:24] Speaker 05: One last question is LLC ever passed on this not that I know of your attack. [00:35:30] Speaker 06: Thank you Why before you sit down, but that doesn't mean that I just don't know I just don't know yeah Why is the 2008 rule actually in effect? [00:35:43] Speaker 06: Because in other words, what if the district court didn't have jurisdiction to extend its stay of the 2008 [00:35:53] Speaker 04: If the court had said, Rita, I'm not going to do it or I don't have jurisdiction to do it, we would have had thousands of kids, I don't know what they're called, young people and their wives and their children who would have had to immediately flee the country because they would have lost their visa. [00:36:10] Speaker 04: And we would have had employers who would have had to fire these thousands of kids. [00:36:14] Speaker 04: And so nobody wanted to cause that kind of disruption. [00:36:17] Speaker 04: They would want a sort of gradual [00:36:19] Speaker 04: If a process like this was going to happen, it would have to be a gradual process so as to not impose that kind of. [00:36:24] Speaker 06: I understand why the district court did it, but if I find today or if this court were to find today that the district court didn't have jurisdiction to take that action. [00:36:36] Speaker 06: then there is no 2008 rule in effect, right? [00:36:39] Speaker 06: Because it's been vacated. [00:36:41] Speaker 04: Well, you're right, Your Honor. [00:36:42] Speaker 04: The 2008 rule would have been vacated, would have been remanded, and a new rule would have had to happen. [00:36:47] Speaker 04: And if you're saying that at the time that the court remanded the proceeding, [00:36:51] Speaker 04: there was no jurisdiction to then extend the vacatur stay, which we think is incorrect, Your Honor. [00:36:58] Speaker 04: We think that's just part of any sort of order that the court had. [00:37:03] Speaker 04: The court can grant relief from its timing of its order. [00:37:07] Speaker 04: But having said that, Your Honor, as a functional matter, I don't know if this is the case to [00:37:13] Speaker 04: to decide that given that in six days we will have a new rule anyway, where all of this will be moved anyway. [00:37:18] Speaker 04: But it is an important point, but one that perhaps isn't necessary to decide here, given that we'll have the new rule and there won't have been a vacating of the 2008 rule. [00:37:31] Speaker 04: Thank you. [00:37:32] Speaker 04: Thank you. [00:37:34] Speaker 03: We'll give you two minutes for rebuttal. [00:37:37] Speaker 03: My wishlist then for the court is that you put out a ruling that says that people and student visas have to be remanded back to the district court. [00:37:49] Speaker 03: As far as this later rule, we can amend the complaint under rule 15 on the rules of civil procedures and later action and add this later rule as part of an amended complaint. [00:38:01] Speaker 03: If you decide that there is a jurisdiction, we pray that you put out an order that says what has to be done to make this a final rule. [00:38:10] Speaker 02: And just quickly, the... Would you even want that? [00:38:14] Speaker 02: By the time that happens, a new file, an amended complaint, if that were what were to happen, 2008 is going to be gone. [00:38:21] Speaker 02: I would think you'd want to focus your... [00:38:23] Speaker 02: lasers on the 2016 rule. [00:38:25] Speaker 02: Am I wrong? [00:38:26] Speaker 02: Is there something about 2008 you really want to challenge that you can't get through the 2016? [00:38:30] Speaker 03: We want the world like you to say the policy of allowing aliens to work on student visas when they're not students is unlawful. [00:38:38] Speaker 02: So your position as a 2016 rule does not qualify as a re-opener? [00:38:41] Speaker 03: It could as well, Your Honor. [00:38:45] Speaker 02: If it doesn't, you could do that there. [00:38:47] Speaker 02: I'm trying to figure out if there's something you need in 2008 that you can't argue with respect to 2016. [00:38:53] Speaker 03: Well, Your Honor, the district court has already decided that DHS does have this power. [00:38:59] Speaker 03: So we're going back to ask the district court to make a decision on what's already decided. [00:39:03] Speaker 02: Well, then maybe you would want us to rule that this case is moot and vacate the district court's decision. [00:39:08] Speaker 02: But I haven't heard that argument from you. [00:39:10] Speaker 03: We would have thought through that possibility that you're throwing out, Your Honor. [00:39:15] Speaker 03: But we would like an order that states from the court that says that you have to be a student to be on a student visa. [00:39:24] Speaker 03: And quickly, in regard to standing, the rule is that under the rule of Louisiana Energy, that allowance of competition is the injury and that private conduct [00:39:37] Speaker 03: that is traceable to an action that is allowed by agency action is an injury. [00:39:42] Speaker 03: I also point out just right quickly that the reason this was limited to STEM is because of the declared labor shortage in STEM. [00:39:51] Speaker 03: It had absolutely nothing to do with educational needs at all. [00:39:56] Speaker 03: And I would conclude is that the... You can keep going. [00:40:00] Speaker 03: I can keep going. [00:40:00] Speaker 03: I didn't give you a minute. [00:40:02] Speaker 03: And the statute for student visa status says solely for purpose of study at an approved academic institution. [00:40:11] Speaker 03: I would say that's the only thing. [00:40:12] Speaker 03: A tourist visa says that you're being admitted not for work, but under the district's court's interpretation that those are only entry requirements. [00:40:22] Speaker 03: You can come here on a tourist visa and not for the purpose of work, and then DHS can allow you to work. [00:40:31] Speaker 03: Thank you. [00:40:32] Speaker 03: Thank you, Your Honor. [00:40:33] Speaker 03: Case is submitted.