[00:00:04] Speaker 00: I'm John Miano. [00:00:11] Speaker 05: With me is Christopher Hayek at the table. [00:00:34] Speaker 05: This court has repeatedly held that a party suffers an injury in fact when an agency action allows competition against it. [00:00:43] Speaker 05: My clients are in the technology industry and the evidence here is overwhelming that the regulation at issue allows competition against them. [00:00:54] Speaker 05: Let me go through some of this evidence in chronological order. [00:00:58] Speaker 05: First, we have the rule itself that allows alien workers in H4. [00:01:03] Speaker 02: Are you focusing on competition from HB1 workers? [00:01:08] Speaker 02: You have several theories of standing. [00:01:10] Speaker 02: Is that the one you're focusing on here? [00:01:12] Speaker 05: Right, I was going to start with the H4. [00:01:15] Speaker 02: Is that because you think that's your stronger case? [00:01:18] Speaker 05: No, because I think it's the simplest one to explain. [00:01:21] Speaker 02: Well, why don't you [00:01:23] Speaker 04: We may actually think the HB1 is the stronger one. [00:01:29] Speaker 05: You think H1B is stronger? [00:01:30] Speaker 04: It might be. [00:01:31] Speaker 04: Why don't you start with that? [00:01:33] Speaker 05: Okay, I'll start with H1B. [00:01:34] Speaker 05: My clients were all computer programmers at Southern California Edison who were all replaced by H1B workers. [00:01:43] Speaker 05: So they are in competition with these workers who are overwhelmingly in the technology job market. [00:01:50] Speaker 05: This rule in question is designed to attract and retain H-1B workers in the job market. [00:01:57] Speaker 05: This rule repeatedly states that, I think it's about 20 times in the rule itself, that it says its purpose is to attract and retain H-1B workers. [00:02:05] Speaker 04: There's a problem with relying on the purpose. [00:02:09] Speaker 04: We have held, for instance, a statute of Congress which articulates a theory of injury. [00:02:18] Speaker 04: doesn't affect the court's determination of whether there's injury in fact. [00:02:22] Speaker 04: Wouldn't that also be true of a regulation? [00:02:25] Speaker 05: It could well be, your honor, but here we know how the operation, the rule is. [00:02:31] Speaker 05: For example, we have Nikki who said that absent this rule, that their employees would leave. [00:02:39] Speaker 04: That is, of course, your strong argument. [00:02:43] Speaker 04: Not what the purpose of the regulation was, but the effect. [00:02:48] Speaker 05: The effect, Your Honor, because it's providing this incentive for you to remain in the job market and to attract more of these foreign workers by allowing spouses. [00:02:57] Speaker 04: And is there any evidence of that? [00:02:59] Speaker 05: The evidence of that is in the record. [00:03:02] Speaker 04: Is it referring to the comments? [00:03:05] Speaker 05: In the comments and the statement of purpose of the rule. [00:03:08] Speaker 04: I'll just explain to you, but I'm not sure the purpose of the rule can give you standing. [00:03:13] Speaker 05: Right. [00:03:14] Speaker 04: The question is whether... Wait, do you agree with that? [00:03:17] Speaker 05: I agree that it's possible, yes, Your Honor. [00:03:19] Speaker 05: You agree what? [00:03:21] Speaker 05: I agree that it is possible that just that the absence of the statement of the rule by itself does not do it. [00:03:30] Speaker 05: But we have all the other factors going on here as well that [00:03:36] Speaker 05: I'll also give the other point because there are two related injuries here, which is providing incentives to this. [00:03:49] Speaker 05: And this court has repeatedly stated that providing incentives is an injury in fact. [00:04:00] Speaker 05: For example, Judge Tatel, National Biodiesel versus EPA, it was self-evident that the plaintiffs had an injury in fact, because the plan at issue incentivized competitors. [00:04:18] Speaker 04: Yes. [00:04:19] Speaker 04: But you have actual evidence of that from the commenters, right? [00:04:24] Speaker 05: We have that for the comment and we also have that again from what the purpose of the rule and this is the effect. [00:04:31] Speaker 05: This is what the rule is saying it is doing. [00:04:33] Speaker 05: Otherwise this rule has no purpose. [00:04:35] Speaker 05: It wouldn't be the first time. [00:04:42] Speaker 05: Right? [00:04:44] Speaker 05: Could well be. [00:04:46] Speaker 05: But why would they go through all this effort to do it if it didn't provide this incentive to retain workers? [00:04:56] Speaker 01: But I think Judge Silverman's point is that the question isn't what their purpose is, it's what the effect is. [00:05:01] Speaker 01: Right. [00:05:02] Speaker 01: I mean, they could have misgaged things, and it's your obligation to show us that there are people who are actually harmed by this. [00:05:09] Speaker 05: Harnessed. [00:05:10] Speaker 05: But I've said there are two interrelated theories here of standing. [00:05:17] Speaker 05: One is the actual increase [00:05:18] Speaker 05: increasing competition, which is the purpose of the rule. [00:05:22] Speaker 05: The second is the actual providing of benefits to the competitors to remain in the job market. [00:05:28] Speaker 04: What did you think of the government's argument that these HB1, H1B persons are already committed to staying in the country, so this doesn't add anything to it? [00:05:45] Speaker 05: I don't think that's real because one said that we have this long, because of the way H1B program is that structured, we have this, that we've created this long for people to get green cards, which now is decades, decades long, that many of these people are going to eventually leave if they can't, and this spousal employment is supposed to keep them in the job market, so they would leave. [00:06:12] Speaker 05: Plus another problem is that [00:06:14] Speaker 05: While there is a cap on the H1B visa, in general there's a cap on the H1B visa, there's no cap on visas to academia. [00:06:23] Speaker 05: And so the number of H1B visas to academia or research institutions. [00:06:30] Speaker 05: So there is a facility for attracting more workers, and the number of workers does vary by year on the H1B visa, even though it hits a cap. [00:06:42] Speaker 01: What I'm troubled with, it seems the commentators' comments are all anecdotal. [00:06:48] Speaker 01: I was surprised that there was no statistical evidence that you offered showing a survey of the labor market and the likely effects of this. [00:06:58] Speaker 05: Well, remember this has occurred before, this complaint was filed before the rule goes into effect seeking a preliminary injunction and before the statistical numbers would have been known. [00:07:09] Speaker 01: We're at the summary judgment stage, right? [00:07:12] Speaker 01: Right. [00:07:12] Speaker 01: This is a motion to dismiss, so it would have been an opportunity for you to present that sort of evidence. [00:07:18] Speaker 01: Yes. [00:07:18] Speaker 02: I thought your point was that these comments were made before the rule went into effect, is that right? [00:07:25] Speaker 05: Right. [00:07:25] Speaker 05: I think we're talking to rule comments. [00:07:28] Speaker 04: I don't understand why it should be relevant whether it's summary judgment or motion to dismiss. [00:07:33] Speaker 04: This is a review of agency action, isn't it? [00:07:36] Speaker 05: Right. [00:07:37] Speaker 04: The district judge doesn't take any evidence. [00:07:41] Speaker 04: Right. [00:07:41] Speaker 04: The district judge essentially sits as an appellate judge reviewing agency action. [00:07:46] Speaker 04: That's true. [00:07:47] Speaker 04: So the rule is challenged, right? [00:07:49] Speaker 04: Right. [00:07:49] Speaker 04: Agency action. [00:07:50] Speaker 05: Yes. [00:07:51] Speaker 04: So I don't understand what the evidence you're talking about. [00:07:55] Speaker 04: I don't understand why summary judge. [00:07:56] Speaker 04: We've written opinions explaining that when a district judge sits in review of agency action, the district judge is sitting as an appellate judge. [00:08:05] Speaker 04: that he or she doesn't take evidence except in extraordinary circumstances. [00:08:11] Speaker 05: Well, the only evidence presented is for standing in these cases. [00:08:15] Speaker 04: Yes, I can see. [00:08:16] Speaker 04: So the question of standing could be separately an evidentiary question. [00:08:22] Speaker 04: That's a fair point. [00:08:24] Speaker 04: And all right, that's an interesting point. [00:08:29] Speaker 04: You're right. [00:08:31] Speaker 04: That would be different than the merits of the case. [00:08:35] Speaker 05: So would you like me to go from beyond H1B in competition to H4, or do you have any more questions? [00:08:42] Speaker 02: If you would like to, sure. [00:08:44] Speaker 05: Well, in the case of H4, which I think is actually the simpler one to injury to explain, that this rule also allows the entry of aliens into the job market. [00:08:55] Speaker 02: And in the evidence here, we... Would you describe, why don't you say what the evidence is in the record? [00:09:02] Speaker 02: In the record? [00:09:04] Speaker 05: Well, excuse me, Your Honor. [00:09:07] Speaker 05: Sorry for interrupting you. [00:09:08] Speaker 02: No, that's okay. [00:09:08] Speaker 02: I'm just asking you. [00:09:09] Speaker 02: You mentioned the evidence, so just tell us what is the actual evidence of competition from H4 visa law. [00:09:17] Speaker 05: Yes, Your Honor. [00:09:19] Speaker 05: First of all, we have the rule. [00:09:20] Speaker 05: The rule allows... I know, but beyond the new rule. [00:09:23] Speaker 05: Beyond the new rule. [00:09:24] Speaker 05: Second, in chronological order, before the rule went into effect, the agency had a press conference. [00:09:30] Speaker 05: in which it told the media that it expected that many of the workers in question would be of the type that normally get H1B visas. [00:09:40] Speaker 05: Those were overwhelmingly computer people. [00:09:44] Speaker 05: After the rule went in effect, within days, we have submitted job postings where employers were explicitly seeking workers on these H4 visas for computer jobs. [00:09:56] Speaker 05: often to the exclusion of Americans. [00:09:58] Speaker 04: And you can go to any computer... This was directed directly towards the beneficiaries of the rule? [00:10:03] Speaker 05: Yes. [00:10:05] Speaker 04: Do you have a copy of one of those? [00:10:14] Speaker 04: Directed towards the spouses. [00:10:16] Speaker 04: Yes, Your Honor. [00:10:20] Speaker 05: Okay. [00:10:22] Speaker 05: Would you like me to approach [00:10:25] Speaker 02: No, just read it. [00:10:28] Speaker 05: Job opportunity for H-4 OPT candidates. [00:10:31] Speaker 02: I'm sorry, what? [00:10:32] Speaker 05: Job opportunity for H-4 OPT candidates. [00:10:36] Speaker 05: Who published this? [00:10:39] Speaker 05: This was on DICE, the job board DICE. [00:10:43] Speaker 05: This is at page 58 in the appendix. [00:10:47] Speaker 04: Is this a company? [00:10:48] Speaker 04: Yes. [00:10:49] Speaker 04: What's the company? [00:10:50] Speaker 05: DICE is the largest technology job board on the internet. [00:10:55] Speaker 05: So these are companies posting job boards, and they're saying here, if you're looking for a job, you're on this visa, on the H-4 visa, you can apply for the job. [00:11:06] Speaker 05: Excludes American workers. [00:11:09] Speaker 05: Technically, this job posting is unlawful. [00:11:14] Speaker 02: But you don't have any evidence. [00:11:16] Speaker 02: There's no evidence in the record like there is for your H-1B case, where you actually have declarations from [00:11:26] Speaker 02: members of your organization lost their jobs to H1B, these voters, right? [00:11:31] Speaker 02: You don't have anything like that. [00:11:33] Speaker 05: No, they've not, right? [00:11:35] Speaker 02: But in the comments, and you don't have any comments in the record like you do for H1B, correct? [00:11:41] Speaker 05: Correct, your honor. [00:11:43] Speaker 05: However, the standard has always been that are they allowed to compete? [00:11:50] Speaker 05: Compete in the market. [00:11:51] Speaker 05: So here, for example, we got [00:11:54] Speaker 04: We don't know what the spouses are. [00:11:59] Speaker 04: What do we know about the spouses? [00:12:03] Speaker 04: They could be doctors. [00:12:05] Speaker 04: They could be... They could be, Your Honor. [00:12:08] Speaker 04: They could be judges. [00:12:09] Speaker 04: The Lord knows what they could be. [00:12:11] Speaker 05: But we knew that the agency expected most of these would be technology workers. [00:12:15] Speaker 05: And the amici, after the fact here, brought two studies to the court's attention that showed that the majority of these workers were in technology with the most common occupation being software developer. [00:12:29] Speaker 05: So this is after that. [00:12:30] Speaker 01: You admit, wouldn't you, that this is more speculative than your previous standing argument, right? [00:12:37] Speaker 01: You ask us to engage in some inferences here, and you keep going back to the purpose, and I thought we had decided that purpose can't get you there. [00:12:45] Speaker 01: You've got to show actual [00:12:46] Speaker 05: I didn't think I was speaking purpose, Your Honor, here, because this is the injury that's most firmly based in law, because... But it's most speculative. [00:12:55] Speaker 01: You'll concede that your argument here is more speculative than the H1B argument. [00:13:02] Speaker 05: No, actually, your Honor. [00:13:05] Speaker 05: And the reason why I will disagree with you is because the standard is, are they allowed? [00:13:10] Speaker 05: And yes, they are allowed. [00:13:11] Speaker 05: Now, I'll give you an example. [00:13:13] Speaker 05: One of my favorite cases is Judge Stoverman's opinion in National Credit Union versus First National Bank versus National Credit Union. [00:13:21] Speaker 05: I think we all agree with you. [00:13:23] Speaker 05: That's all one of our favorite cases. [00:13:24] Speaker 05: Well, that's one of mine. [00:13:26] Speaker 05: I mean, I use this all the time. [00:13:27] Speaker 05: In that case, we have four North Carolina banks. [00:13:30] Speaker 04: Did it help to the Supreme Court to affirm? [00:13:32] Speaker 05: Yes. [00:13:35] Speaker 04: Although that doesn't necessarily mean I was right. [00:13:38] Speaker 05: Well, in that case, we have an AT&T credit union, and they got administrative action that allowed them to recruit to enlist members outside of AT&T in a few other businesses, such as a local television station. [00:13:54] Speaker 05: And in that case, it was no dispute that there was an injury in fact because they were allowed to compete. [00:14:04] Speaker 05: And the Supreme Court also echoed, there was no dispute that there was an injury in fact because they were allowed to compete. [00:14:11] Speaker 05: There's no discussion in your opinion, the Supreme Court opinion on how do we know that these people at the television station are going to go to one of these three banks or [00:14:23] Speaker 05: How do we know that these banks even have customers who are at the TV station? [00:14:31] Speaker 05: It was indisputable that there was an injury in fact because they were allowed to compete. [00:14:37] Speaker 04: How did you get a television station? [00:14:40] Speaker 04: I thought it was involved a credit union. [00:14:42] Speaker 05: Well, the credit, the credit, the AT&T credit union was the one that backed it, and they were allowed to list members at additional businesses. [00:14:50] Speaker 04: I see what you're saying. [00:14:51] Speaker 05: And the television station wanted, wanted a total of 16 business, total of 16 business, business, and there were just four, four banks. [00:14:59] Speaker 05: And in that case... The competitors were banks. [00:15:02] Speaker 04: Right. [00:15:02] Speaker 04: The television station. [00:15:04] Speaker 05: Not the television, right. [00:15:05] Speaker 05: There were banks and the AT&T television station. [00:15:07] Speaker 05: And so we have no discussion of whether there can be or there actually is. [00:15:15] Speaker 05: And I also point out Judge Tatel's opinion in... Don't you have an opinion, Judge Griffiths? [00:15:25] Speaker 02: Don't be discouraged. [00:15:26] Speaker 05: I want to hear about mine. [00:15:29] Speaker 05: In Judge Tatel's opinion, in American Institute of Certified Public Accountants, [00:15:34] Speaker 05: versus the IRS. [00:15:36] Speaker 02: And I'm going to let you go over your time to finish this. [00:15:39] Speaker 05: But this court has never required a showing of actual entry into market to establish competitive entry. [00:15:47] Speaker 02: Okay, your time is up. [00:15:48] Speaker 02: Thank you. [00:15:50] Speaker 02: We'll hear from the government. [00:16:01] Speaker 00: May it please the Court, I'm Matthew Glover and I represent Appellee, the Department of Homeland Security. [00:16:06] Speaker 00: This Court should affirm the ruling of the District Court because Safe Jobs has not shown that its members are in actual competition with H-4 visa holders who may get work authorization or... Let's assume you're right about that. [00:16:19] Speaker 02: Would you start with the H-1B visa holder, please? [00:16:23] Speaker 00: Yes. [00:16:23] Speaker 00: So the H1B, the H4, if I can sort of give a global view as to the... No, we got that. [00:16:30] Speaker 02: Why don't you just focus on H1B. [00:16:31] Speaker 00: What I mean to say is the only H1B visa holders who are receiving a benefit here are those whose spouses would get a work permit. [00:16:38] Speaker 00: Correct. [00:16:39] Speaker 00: And in order to be in that category, you must have applied for lawful permanent residence. [00:16:43] Speaker 00: Well, you have to be married. [00:16:45] Speaker 00: Yeah, or have a dependent child. [00:16:47] Speaker 00: Yes. [00:16:50] Speaker 00: You must have applied for lawful permanent residence. [00:16:53] Speaker 00: And to apply for lawful permanent residence, you would need to seek a green card. [00:16:58] Speaker 00: And the provisions that they seek a green card under are provisions in which the employer has to identify the job that they want to give you lawful permanent residence status for. [00:17:07] Speaker 00: And that job needs to be one which the employer certifies and the Department of Labor agrees no US person is available for the job. [00:17:15] Speaker 00: This is explained in the district court's preliminary injunction opinion where she's discussing the two categories, employment-based preference two and employment-based preference three. [00:17:25] Speaker 00: So the H-1B workers who are receiving the benefit here are people who are in and going to stay in the United States to work permanently, or get green card status, to work in a job for which the Department of Labor has determined no U.S. [00:17:40] Speaker 00: worker is available. [00:17:42] Speaker 00: They're not in competition with SAVE. [00:17:44] Speaker 02: Well, what about the three affidavits that say affidavits from three SAVE members who say they lost their jobs to H-1B visa holders? [00:17:56] Speaker 00: So, Your Honor, this goes to the difference between all H-1B visa holders, not all of whom get a benefit from the H-4 rule. [00:18:04] Speaker 02: No, but they lost their jobs to H-1B visa holders. [00:18:09] Speaker 02: Understood, Your Honor. [00:18:10] Speaker 02: Doesn't that show that they're in competition, at least some of them? [00:18:13] Speaker 00: They may be in competition with those H1B visa holders. [00:18:16] Speaker 00: But that's all they need to show to headstand it? [00:18:18] Speaker 00: No, Your Honor, because not all H1B visa holders are beneficiaries of the H4 rule. [00:18:23] Speaker 02: I mean, maybe the three in this case didn't have spouses. [00:18:28] Speaker 00: No, it doesn't require merely having a spouse. [00:18:31] Speaker 00: Your spouse doesn't have the ability under the H4 rule to seek employment until you have begun the process for legal permanent residence or lawful permanent residence. [00:18:41] Speaker 00: My apologies for misspeaking there. [00:18:43] Speaker 00: And you don't begin the process for lawful permanent residence until your employer has identified the job for which they want to give you the green card. [00:18:50] Speaker 00: I'll use green card so I don't mix it up again. [00:18:53] Speaker 00: And when the employer identifies that, one of the initial steps, again, before you are applying as the H1B holder, is that the employer shows to the Department of Labor and the Department of Labor certifies that there are no available U.S. [00:19:06] Speaker 00: jobs. [00:19:06] Speaker 04: You know, unfortunately, in this case, you're talking to a former Undersecretary of Labor. [00:19:12] Speaker 04: And I remember how those decisions are made. [00:19:16] Speaker 04: And I have to tell you, they aren't made exactly with the same deliberation [00:19:22] Speaker 04: that a decision in the Court of Appeals is made. [00:19:26] Speaker 04: In other words, when employers assert that, there's not a hell of a lot of investigation. [00:19:33] Speaker 04: And when an employer asserts that nobody's available in the domestic market, it's usually [00:19:39] Speaker 04: I really want this fellow or a woman who's a foreign. [00:19:44] Speaker 04: But there's no question there can be competition. [00:19:47] Speaker 04: I understand your argument, but that assumes the Labor Department is absolutely perfect in their judgment that there is no available person in the United States. [00:20:00] Speaker 00: So I would start with, I won't pretend to have a greater knowledge of the Department of Labor than, Your Honor, obviously, nor of labor law. [00:20:08] Speaker 00: But the presumption of regularity would be that the Labor Department, when it's agreeing and certifying, is making some degree of analysis, but even assuming that errors... But even assuming that's true. [00:20:23] Speaker 04: Anything that would keep [00:20:25] Speaker 04: that person there would be competition for Americans. [00:20:33] Speaker 04: Although your theory is by definition there's no American that can perform this job. [00:20:38] Speaker 00: Yes, that is our theory. [00:20:41] Speaker 04: That's your basic idea, there's no competition because no American can perform this job. [00:20:45] Speaker 00: Yes, well, because the lawful permanent resident, the job that is the basis for your green card application, the Department of Labor has made that agreement. [00:20:55] Speaker 02: But Your Honor, they're- I still don't understand how that argument's consistent with the evidence in the record that three people actually lost their jobs to H-1B visa holders. [00:21:04] Speaker 02: Well, so Your Honor, it gets to the- Those three people were employed, and now they're not, and their jobs are filled by H-1B visa holders. [00:21:12] Speaker 02: So- [00:21:13] Speaker 00: True, Your Honor. [00:21:15] Speaker 00: It gets to the distinction between all H-1B visa holders. [00:21:18] Speaker 02: But they don't have to show, all they have to do is show that, evidence of competition. [00:21:26] Speaker 02: They don't have to show that all of them are competing. [00:21:30] Speaker 00: What I'm trying to get at, and I apologize if I'm not being clear, is if a person gets an H-1B visa and they work a job, there's no requirement for the H-1B that you show that there's no available U.S. [00:21:42] Speaker 00: worker. [00:21:44] Speaker 00: In an example, a person is working in job X, the employer replaces them, as the affidavit says, with an H1B holder. [00:21:51] Speaker 00: That H1B holder, that person comes with a spouse on an H4. [00:21:56] Speaker 00: That H4 visa holder does not have access to the H4 rules employment opportunities unless that H1B visa holder applies for a green card. [00:22:07] Speaker 00: And it's at that point before they can apply for the green card. [00:22:10] Speaker 04: Yes, but they may go home if they can. [00:22:13] Speaker 04: It takes a long time to get the green card. [00:22:15] Speaker 04: If your wife can't work or your husband can't work, there's a disincentive to stay in the United States even if you've applied for a green card. [00:22:23] Speaker 00: Understood, but prior to that... So therefore you'll be a competitor. [00:22:27] Speaker 00: No, Your Honor, because prior to you applying for the green card, you, the H-1B visa holder, must be in a job for which the Department of Labor has said there's no available U.S. [00:22:37] Speaker 00: person. [00:22:38] Speaker 00: And I would just point to their affidavit discusses the past harm, but their affidavit doesn't say [00:22:43] Speaker 00: And those H1B workers at Southern California Edison were seeking lawful permanent residence. [00:22:49] Speaker 00: They don't identify a single one. [00:22:50] Speaker 00: They don't identify any people in that class of H1B in the past who have sought lawful permanent residence and therefore would benefit from the H4 rule. [00:23:00] Speaker 00: And so insofar as Your Honor raised questions with me that maybe the Department of Labor is certifying and making some mistakes when they're certifying, there's nothing in the record showing a single instance of an H-1B visa holder who's seeking a green card that the Department of Labor has agreed the job is one for which no American worker is available, that they've said, but I applied for that job, but here's why I'm qualified. [00:23:22] Speaker 00: They provided no evidence. [00:23:23] Speaker 00: And so it's this subset of H1B visa holders whose spouses would be able to work under the rule. [00:23:30] Speaker 00: Those are the only H1B visa holders who get a benefit here. [00:23:33] Speaker 00: So arguing that they have to compete with H1B visa holders doesn't mean the rule is actually affecting people they're competing with. [00:23:41] Speaker 00: They have put nothing in the record showing they're competing with that subset of H1B visa holders. [00:23:46] Speaker 00: And I apologize if I'm not super, I'm trying to be clear about the process. [00:23:50] Speaker 00: I think footnotes six are. [00:23:51] Speaker 02: How do you distinguish this case from Washtec? [00:23:53] Speaker 00: So a couple of points to that, Your Honor. [00:23:55] Speaker 00: First of all, Washtek was at the motion to dismiss, and we're at summary judgment here. [00:24:00] Speaker 00: And second, in Washtek, the court made clear that at the motion to dismiss, they were accepting Washtek's statements in their complaint that our employees work in STEM fields, our employees have applied for jobs with employers who currently have, at that time it was students who were working on what was called occupational practice training, [00:24:22] Speaker 00: So I've applied for a job with an employer that has occupational practice training students there. [00:24:27] Speaker 00: And some of those students are going to renew their occupational practice training under the 2016 rule and get additional time. [00:24:34] Speaker 00: Here, there's no affidavit saying company X has an H1B visa holder who applied for lawful permanent residence and whose spouse will now be able to work so that it's an H1B visa holder benefiting from the rule. [00:24:47] Speaker 00: And company X told me, you can't have this job. [00:24:51] Speaker 00: We have someone else in this job. [00:24:53] Speaker 00: There's no evidence that they've applied for any of these jobs. [00:24:57] Speaker 00: They've just provided nothing as to H1B visa holders who benefit from the rule. [00:25:02] Speaker 00: Washtec, again, now that we're at summary gender, is putting in affidavits saying, I applied for a job at company X. I think Microsoft is one of the examples. [00:25:16] Speaker 00: There are a few others. [00:25:19] Speaker 00: And they have so many people who are in the OPT or students who are in this occupational practice training system. [00:25:26] Speaker 00: So I think the two distinctions are, first, it was a lower standard. [00:25:29] Speaker 00: And second, they did plead that they had employees who were seeking jobs at companies where students were receiving the benefit of the 2016 rule that was at issue here. [00:25:40] Speaker 00: They have not pled that they are seeking employment at companies for which H1B workers who would receive a benefit from the H4 rule are currently employed. [00:25:50] Speaker 00: But even if they did, their competition with those H1B visa holders would require, what Judge Silverman raised with me, the prospect that the H1B visa holder was in a job for which no US worker was available, but instead they were available. [00:26:07] Speaker 00: And I'd make one other point about market definition versus Washtec. [00:26:12] Speaker 00: Washtec purported to represent people across the STEM fields. [00:26:16] Speaker 00: There's a broad array of STEM fields. [00:26:18] Speaker 00: Same jobs purports to represent former employers of Southern California Edison. [00:26:22] Speaker 00: Employees. [00:26:23] Speaker 00: Employees, excuse me. [00:26:24] Speaker 00: Thank you, Your Honor. [00:26:25] Speaker 00: My assumption is Southern California Edison is operating in Southern California, but they've provided no evidence to sort of the range or geographic place that their members are formally employed or are looking for work. [00:26:38] Speaker 00: And they also haven't specified, you know, they talk about computer jobs, but there's a whole range of computer jobs from someone who programs software for apps on an iPhone to someone who works in tech support at the Department of Justice. [00:26:52] Speaker 00: And so they haven't shown any actual, you know, [00:26:55] Speaker 00: defined market for labor aside from computer jobs, and they haven't set a geographic limit on it. [00:27:01] Speaker 00: And as to the geographic limit, I would point to DEK Power, which I think is cited in our brief at 18, where this court said that a Northern California natural gas supplier had not shown it was going to be injured by a FERC allowing a gas supplier from Canada to ship gas into Oregon, because there was 700 miles and there was no explanation for how the gas was going to get there. [00:27:23] Speaker 00: We've seen no explanation for [00:27:25] Speaker 02: That's not a competitive injury case, is it? [00:27:31] Speaker 02: That's not a competitive injury case. [00:27:34] Speaker 04: We in the Supreme Court have gone far in the competitive injury cases. [00:27:39] Speaker 04: I think Judge Tatel is telling you that. [00:27:41] Speaker 00: Understood. [00:27:42] Speaker 00: They did raise competitor injuries standing there, I believe. [00:27:47] Speaker 00: But again, I think I'll just close saying the competitor injury cases like Shirley, where you had the NIH competition, you know, the court emphasizes you're in clear competition in a defined market. [00:27:58] Speaker 00: I'm over time, Your Honor, I apologize. [00:28:00] Speaker 04: One question before you leave. [00:28:02] Speaker 04: Why in Lord's name is it taking the department so long to revoke this rule, which they've proposed? [00:28:10] Speaker 04: Where is it sitting? [00:28:11] Speaker 00: Your Honor, and I apologize. [00:28:13] Speaker 00: I know we had two followings on this, and so it sounds like we didn't convey. [00:28:17] Speaker 00: It is sitting at OIRA in what I understand is called the pass back process. [00:28:22] Speaker 00: And in the OIRA process, one of the things that the agency that seeks to have the NPRM, in this case GHS, can do is have shared stakeholder meetings. [00:28:30] Speaker 00: I think we described there's eight. [00:28:32] Speaker 00: I checked yesterday. [00:28:33] Speaker 00: I believe the most recent one was May 1st. [00:28:36] Speaker 00: And so there's both the OIRA review cost benefit and everything that's entailed in OIRA review and OIRA in addition with DHS engaging with stakeholders. [00:29:00] Speaker 03: on behalf of the interveners. [00:29:02] Speaker 03: I'd like to make three points, if I may. [00:29:04] Speaker 03: First, in response to Judge Tatel's questions about the affidavits. [00:29:10] Speaker 03: The affidavits talk about loss of jobs in 2014. [00:29:13] Speaker 03: That was before the rule was enacted. [00:29:16] Speaker 03: So to have standing, the plaintiffs have to show injury as a result of the rule. [00:29:21] Speaker 03: Obviously, 2014 loss of a job before the rule was enacted was not a result of the rule enacted in 2015. [00:29:29] Speaker 03: There's no evidence that there's going to be an increase in the number of H1B workers. [00:29:36] Speaker 02: If someone lost their job to an H1B visa holder, [00:29:44] Speaker 02: Doesn't that show they're in competition with them? [00:29:48] Speaker 02: And in any event, true, pre-rule, but now the rule makes that competition even stronger. [00:29:55] Speaker 02: Why would we disregard that? [00:29:57] Speaker 03: Because, Your Honor, the question is whether there's going to be more H-1B workers as a result of the rule. [00:30:04] Speaker 02: If there's this... The first question is, are they competing? [00:30:07] Speaker 02: And the second question is, will the rule cost more? [00:30:10] Speaker 03: Well, and I'm not disputing that there's competition with H-1B workers, but to show injury, they have to show an increase in the number of H-1B workers, because the rule is— Well, the government counsel was essentially arguing there is no competition. [00:30:24] Speaker 02: Well— You don't agree with that, I think. [00:30:27] Speaker 03: I want to make a separate point. [00:30:29] Speaker 02: Yes or no? [00:30:30] Speaker 02: You don't agree with that, right? [00:30:32] Speaker 02: Do you think there is competition between HB1 visa law? [00:30:36] Speaker 03: I think it's a fair point that you need to look at. [00:30:39] Speaker 03: Wait, wait. [00:30:39] Speaker 03: Who's making a fair point? [00:30:40] Speaker 03: Me or the government? [00:30:42] Speaker 03: I think the government made a fair point that you need to drill down a little bit into the H1B worker. [00:30:49] Speaker 03: and see if they're in competition. [00:30:51] Speaker 03: The case law says there has to be direct and current competition for there to be standing under this line of cases. [00:30:59] Speaker 03: And there isn't evidence that there's direct and current competition. [00:31:02] Speaker 03: But what I'm trying to say is there's also, you talked about, Judge Sullivan and others talked about commentators' statements, but those are predictions. [00:31:13] Speaker 03: Those are pre the rule taking effect. [00:31:16] Speaker 03: It's not clear that there is gonna be [00:31:19] Speaker 03: H1B workers who were deterred from leaving the country. [00:31:23] Speaker 02: But they're in direct response to the comments which said this rule will not accomplish its purpose. [00:31:31] Speaker 02: And the department responded by saying, false. [00:31:36] Speaker 02: Look at all these comments. [00:31:37] Speaker 03: But that's still not evidence, Your Honor. [00:31:39] Speaker 03: Those are predictions. [00:31:40] Speaker 04: They could have... Well, you can never have... There are case after case after case in which we've held their standing [00:31:49] Speaker 04: the moment there's a competitor enters into the field, whether or not the competitor has an impact. [00:31:57] Speaker 03: Well, Your Honor, for example, in... Sorry. [00:32:05] Speaker 02: That's right. [00:32:06] Speaker 02: You can answer Judge Sogan's question, but then your time is up. [00:32:10] Speaker 03: So this court's case is that an actual and impending increase in competition suffices provided that this court recognizes that that competition is almost certainly going to cause injury. [00:32:28] Speaker 03: And to show that it's almost certainly going to cause injury, you mean... No, no, no, no, no. [00:32:32] Speaker 04: I think all we have to do is establish competition, and that alone constitutes injury. [00:32:39] Speaker 04: We've never said you have to be the petitioner or a plaintiff has to be driven into bankruptcy before there's a standing. [00:32:51] Speaker 03: No, that's not. [00:32:56] Speaker 03: But what I said was from Washtak 892F3rd at 339, which is a case which is very similar to this one. [00:33:05] Speaker 03: And I'll read so I get exactly right. [00:33:07] Speaker 03: The plaintiff must show actual or imminent increase in competition, which increase we recognize will almost certainly cause an injury in fact. [00:33:16] Speaker 04: That's it. [00:33:17] Speaker 04: That's all you have to do is show us an increase in competition. [00:33:21] Speaker 04: Then injury is assumed. [00:33:23] Speaker 04: That's all. [00:33:23] Speaker 04: You just read exactly my point. [00:33:26] Speaker 03: But it says almost certainly cause an injury in fact. [00:33:29] Speaker 03: And I think there has to be some analysis whether there's going to almost certainly be an injury in fact. [00:33:34] Speaker 04: I think you're misreading that. [00:33:35] Speaker 04: I think you're misreading that. [00:33:37] Speaker 04: I think we've concluded it. [00:33:38] Speaker 04: There's competition. [00:33:39] Speaker 04: there's injury in fact. [00:33:40] Speaker 03: Well, in Washtec, as the government noted, there was evidence, there was evidence that the Washtec workers applied to Microsoft where the beneficiaries of the rule... You know, the problem is, as Judge Shittle keeps pointing out, you've got three people in this case who claim they lost their jobs. [00:33:59] Speaker 04: And there's now an incentive for the group of people who competed with them and caused them to lose their job [00:34:07] Speaker 04: to an incentive for these people to stay in the country longer. [00:34:11] Speaker 03: But as the government pointed out, one, it's not clear that they lost their job to folks who could be beneficiaries of the rule, and two, it's not clear that the rule, even if it's intended to, increased the number of H1B workers [00:34:24] Speaker 03: will actually do so. [00:34:25] Speaker 03: There's no evidence in the record. [00:34:27] Speaker 03: The government did not attempt to predict in publishing the rule. [00:34:31] Speaker 03: It didn't say there's X number of H-1B workers who've left the country because they got tired of waiting to get a green card. [00:34:38] Speaker 03: It didn't predict that what percentage of those workers... But they have evidence in the comments. [00:34:42] Speaker 02: There are comments who said that's exactly what happened. [00:34:45] Speaker 02: There are people who said they left. [00:34:47] Speaker 03: But it's not clear that those people are going to stay, Your Honor. [00:34:52] Speaker 03: All right. [00:34:52] Speaker 03: We have your point. [00:34:53] Speaker 02: Thank you very much. [00:34:55] Speaker 02: Do the Council have any time left? [00:34:57] Speaker 02: You can take a minute if you'd like it. [00:35:03] Speaker 05: This thing about the LPR lawful permanent resident division. [00:35:08] Speaker 04: What do you say about the government's Labor Department argument? [00:35:12] Speaker 04: That after all, these people have been certified, these people, the ones who are beneficiaries, [00:35:17] Speaker 04: of the regulation have been certified as indispensable and there's nobody that can compete with them because there's nobody in the American market is qualified to do the job. [00:35:27] Speaker 05: I have two parts to respond to that. [00:35:30] Speaker 05: First, as you noted that things are shady, you could go to... No, I didn't say they were shady. [00:35:38] Speaker 05: But you could go, for example, on YouTube and search for Cohen and Grigsby, where the law firm has a tutorial on how to not define American workers during that certification process. [00:35:50] Speaker 05: The second part, though, to that specific question is that we have this phenomenon what we call body shopping in the industry, that the largest use of H1B workers is companies that supply bodies to other companies. [00:36:05] Speaker 05: So, for example, when the plaintiffs here were replaced by H1B workers, Southern California Edison didn't hire them. [00:36:11] Speaker 05: They hired a company called Tata to bring them in. [00:36:14] Speaker 05: So Tata could go do this certification out somewhere else, and then stick the bodies with another company. [00:36:22] Speaker 04: Ah, another merchant city, a labor contractor. [00:36:25] Speaker 05: Labor thing. [00:36:27] Speaker 05: And in regard to Lord DeWashtec, the problem, which I know well. [00:36:33] Speaker 04: Well, wait a minute. [00:36:34] Speaker 04: But theoretically, when this contractor hires the HB1B, [00:36:43] Speaker 04: or a worker, and gets the certification from the Labor Department. [00:36:48] Speaker 04: The Labor Department has made the determination that there's no one in the American economy that can perform this job. [00:36:56] Speaker 04: So why does it matter whether it's a contractor or Southern California Edison? [00:37:00] Speaker 05: Okay, so they've determined that there's no one at some specific point in time, let's say they've got in New York, they've got, let's say the workers in New York, he hires, they say there's no specific point in time, so now [00:37:12] Speaker 05: Southern California Edison or some other energy competition, direct competition with my clients wants to bring in one of these workers. [00:37:21] Speaker 05: All the employer then needs to do is file a new labor condition application, which the law requires to automatically be approved for Southern California Edison. [00:37:30] Speaker 05: And that New York worker now is in Southern California Edison. [00:37:33] Speaker 05: Anything else? [00:37:37] Speaker 02: Thank you. [00:37:38] Speaker 05: I would just say I did have quotes from Judge Griffith. [00:37:42] Speaker 02: That's OK. [00:37:42] Speaker 02: He knows what his opinion said. [00:37:44] Speaker 02: And it's really a good opinion. [00:37:46] Speaker 02: Thank you. [00:37:47] Speaker 02: Case is submitted. [00:37:50] Speaker 02: We're going to take a brief recess so that the clerk can close the courtroom.