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Face number 22-5074.

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IP SERV Alliance, Inc.

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at Balance versus United States Department of Homeland Security.

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Mr. Forney for the A Balance, Mr. Press for the Epoly.

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Good morning.

[00:00:19] Speaker 06:
Good morning.

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Thank you, Judge Katz.

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May I please support Jeffrey Forney for at Balance, IP SERV Alliance, Inc.

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Try to tuck in the mic.

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I'm not hearing it very well.

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IT service members have suffered and continue to suffer increased operational costs due to the rule USCIS announced in the matter of CIMEO, which the agency imposed prospectively, without exception, on all H1B employers through a policy memo.

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issued contemporaneously with that proceeding.

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However, the rule in Simeo was not the product of an adjudication.

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Rather, the agency must be characterized as such, but the proceeding was not an adjudication.

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It doesn't have any of the typical features of an education.

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Rather, it sounds as a legislative agency has imposed it on the regulated community as such.

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The agency had before it the question whether Simeo Solutions had improperly failed to get the second, apply for the second visa, the amended visa.

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Thank you for the question.

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The characterization

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may require some qualification.

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It wasn't a visa that was an issue.

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In that case, Your Honor is correct that the proceedings leading up to the appeal for the AEO did involve the foreign national appearing at a consulate for a visa interview, but that wasn't the crux of the matter.

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I may have the immigration terms wrong, and I apologize for that, but

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if I do, but I'm just making the point.

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The dispute came up in the context of what we would call a case or controversy if it were in an Article III court.

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It wasn't just the agency musing in the abstract.

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They had an actual dispute before them, and they had to resolve it.

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And in the course of resolving it, they had to construe this

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language in the agency regulation about what it means, what the phrase material changes means.

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Seems about as adjudicatory as you can get.

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Well, the administrative record suggests otherwise.

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Suggests what?

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Suggests otherwise.

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The government produced in the administrative record a rather interesting letter that was issued to CIMEO.

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who is the putative party in the case.

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That letter indicated that around 2011, the employer had already asked that its petition be withdrawn.

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And under the regulation, that request resulted in an automatic revocation of the petition.

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I understand that letter.

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Is there any evidence that Cineo withdrew that letter?

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not just before the appeals office ruled, but also before the director of the California service issued its letter.

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In other words, is there any evidence it was withdrawn before that decision?

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Well, all we have is the administrative record and Appendix 70, that letter in which I reference indicates that

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A letter of withdrawal or revocation was ordered on September 23, 2011.

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Therefore, the approval of your petition is automatic.

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Was that before or after the original decision?

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Well, the letter of withdrawal or revocation was ordered well before the decision issued in the AAL.

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Before the appeals decision.

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But doesn't it have to have been ordered before the original decision?

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Doesn't it have to have been withdrawn?

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Your point is that the withdrawal of that made this not an adjudication, correct?

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Yes.

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But there's no evidence that it was withdrawn before the original decision.

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Which original decision are we talking about?

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The office's decision.

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The administrative bill's office decision?

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No, before that.

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There were only two decisions at issue in this case.

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The first was the approval of the petition.

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Well, then there was a revocation.

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by the agency, and then there was the AEO proceeding that resulted in the published score by the AEO.

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This letter indicates, at least with the dates that we see here, that the petition was automatically revoked well before the AEO proceeding.

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Of course, by definition, it would have been automatically revoked after the original petition was approved.

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But that's what the revocation wouldn't the agency need to know about the revocation at the time it issued its opinion for this to matter.

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There's nothing I'm having trouble hearing.

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Oh, sorry.

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Wouldn't the agency need to know that the petition was revoked at the time they issued their opinion?

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And there's no evidence in the record that they knew that we can only review what's in the record before the agency.

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Well, the letter in the administrative record which the agency produced as part of this record of proceedings contains this letter of automatic review.

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I'm just saying it's not clear the AAO knew about it.

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Because it's not in the record that the AAO was considering.

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Well, it is.

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The AAO actually produced this record.

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It was certified by an official of the administrative council.

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It's in their record.

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Okay.

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So I actually have a different question for you.

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And that's about the case conference group LLC and how it applies to this case.

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And conference group held that in a situation such as this, you have standing to contest the rule to the extent it's a rule, but you do not have standing to contest the adjudication.

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And I'm interested in how that applies in this case, because it strikes me that if you want

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to challenge something as granular as a letter that allegedly withdrew the petition, that seems to me to be an attack on the adjudication and not the rule.

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The rule is the general principle that when you move your H-1B recipient to a different location, you have to amend your petition before the agency.

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But these sort of granular case-by-case

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things such as this beneficiary lived in Long Beach, but he was working in L.A.

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The petition was dismissed in the middle of this appeal.

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That seems to me to be a challenge to the adjudication and not the rule.

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And conference groups suggest that you can't challenge the adjudication.

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Yes, I appreciate the question.

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I think some of the confusion that falls around this issue maybe is the way in which district court judge

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view that and I think Your Honor is sort of re-iterating that position.

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It's understandable, but the critical point is that we're not challenging any particular aspect of the intuitive adjudication, including the letter and issue that we've been discussing.

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We're not challenging that.

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That letter is merely indicative of the fact, among other points, that this is not an adjudication because of what happened in the proceeding.

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Its characteristics

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including characteristics tied to that letter, show that it was perspective only, in effect, had no direct bearing on the putative party of the case, because their petition that was supposedly an issue was no longer in law.

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The AO, therefore, was addressing that abstract issue.

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That kind of characterization, at least according to this court's precedent, brings it over to the rulemaking side

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So you're saying that I'm just trying to understand the distinction between challenging an aspect of the adjudication, which is that the petition was dismissed and not doing that, but instead using it as evidence of that this is a rulemaking.

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Yes, precisely.

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Because an adjudication has two characteristics.

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case-by-case fact-sensitive in which the agency addresses those facts and during the course of the proceeding may come up with a principle.

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No, no.

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I understand all that.

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But basically, you are... The Simeo record is not actually before us.

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We're not actually... You are not a party to the Simeo proceedings.

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You are just trying to challenge the presidential effect of the ultimate holding of the Simeo.

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ruling, which is what you think is a legislative rule.

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But to do that, you are getting into the details of that same proceeding.

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And it strikes me as procedurally strange that you should get to do that.

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Oh, and this goes back to, I think, your honor's point about conference group, which, as I believe you correctly pointed out, suggests that you have

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A non-party to the case can't challenge the adjudicative aspect of an order that appears to affect.

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Of course, there's a couple of material points of distinction there.

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One is that, of course, the court found in that case there was an adjudication.

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We're contending here that this is not adjudication.

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It's characteristics.

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Among other things, the characteristics that appear in the administrative record show that it's a rulemaking.

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The second more critical point is that

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The party in the case challenging the rule in the conference room, the court noted that they would have actually had the opportunity to challenge the application of that rule or precedent that the agency formulated in a separate administrative proceeding to distinguish that case and show that they did not fall within the ambit of that precedent or rule.

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That's not the case here.

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There's no procedure by which

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Any member of ITServe can do that.

[00:11:05] Speaker 02:
I'm curious about that.

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Why not?

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When you apply for that, can't you say it's our position that if this person moves, we shouldn't have to?

[00:11:13] Speaker 02:
No, because there's no vehicle to do that.

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There's no vehicle to do that.

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Certainly not in the manner in which was noted in a conference group, which the FCC, of course, had more elaborate procedure in that case where

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the Bureau might review your practices, and then you can challenge whether or not your practices require you to pay into a fund.

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I mean, you can appeal that to the FCC before you incur any financial losses by being held to pay into a fund.

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That type of proceeding isn't available.

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I want to ask you about, so that was one way you distinguished conference group.

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But there's another way you distinguished conference group that I want to ask you about.

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You say in your brief that the plaintiff failed to show that the challenged action, and this is a quote from your brief, would have a pending certain harm, and that unlike here.

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But in conference group, the court, we were very clear there that the adjudication that the plaintiff was challenging there had found that

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companies like Petitioner, a particular type of telecommunication services, would have to contribute to the Universal Service Fund.

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They found that our case was based on that.

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And that sounds just like this case.

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There, they did show some harm.

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Namely, they had to contribute to the Universal Services Fund.

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They had to pay into the fund.

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And there was no question about this.

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And your client has to pay more for these petitions.

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And I don't see why they're different.

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If it wasn't enough in the conference group, why is it enough here?

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So I understand that conference group, one of the critical points was that, again, I think there's two critical points.

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One is that it was unclear that a non-party to that case was actually required to pay into the universe.

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into that fund.

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The only order at issue was that the conference group and related parties who were subject to the FCC's order were compelled into the fund because the order is directed at them.

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But order wasn't directed at any other party.

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And moreover, more critically, separate parties could actually challenge in the future whether the FCC was going to apply.

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No, I know that argument.

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I was just, I get your argument about that.

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I was just asking about this, what seems to be a separate argument in your brief that unlike here in conference group, they had failed to show any impending harm.

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And it looks to me like they did, that they would have to pay into the universal services fund.

[00:14:07] Speaker 06:
Oh, well, if your honor is indicating that the parties in the Congress did show imminent harm, I understand the question.

[00:14:15] Speaker 00:
I'm sorry.

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Well, you said in your brief that they didn't.

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That's why I asked you the question.

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Right.

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I mean, I think the case stood on the principle that they couldn't show impending harm because the order didn't apply it.

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Because the order did not apply to the parties in the judicial procedure.

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I mean, that's different here.

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We have a different situation here because the policy memo that was issued contemporary.

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And your whole distinction of conference group turns on your argument that there's no other remedy here for your client, right?

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There's no other way to challenge it other than through this.

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That's true.

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That's your distinction for conference group.

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That's the primary distinction.

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So I'd like to come back to that, because I think it's important.

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But it seems to me that you could challenge this in one of your client's proceedings, because one of your, I don't know, members could apply for the H-1B visa, get it, their person could move, they could

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get the LCA but not petition.

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And when they try to deport that person, you could raise all the issues that you're saying now, but that is not appropriate.

[00:15:35] Speaker 02:
All of your substantive arguments, such as now you're intruding into the Department of Labor's area.

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So you could challenge all of this.

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It wouldn't be pleasant for the H-1B visa person who's the beneficiary, but you could challenge this within one of your own

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These applications.

[00:15:53] Speaker 06:
Well, I'm sorry.

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This gets into some technical nuance about immigration.

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I apologize about that.

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But Your Honor mentioned challenging that type of issue in a removal proceeding.

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The employer can't be a party to a removal proceeding that is specific to a foreign national where the immigration and customs enforcement alleges that.

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How did Simeo bring it?

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Well, the foreign national issue in that case was outside the United

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states at the time, he was going to a consulate to get a visa.

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Initially, he was working for Simeo.

[00:16:31] Speaker 02:
I'm just trying to understand how Simeo brought that, because you're telling me that none of your members could bring the case before the AAL.

[00:16:40] Speaker 06:
Well, because there's no way to ventilate this issue before the agency, before the harm is actually suffered.

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In other words, the agency laid down a global rule of general applicability that applies to the members.

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It says, if you're going to move folks, file the LCA, but then you have to file an amended petition, full stop.

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And associated with that amended petition is the court's filing fee and other transactional costs.

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So you incur that harm before you can go to the agency and say, hey, we don't think this applies to us.

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There's just no procedural mechanism to raise that issue.

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Can't you move for declaratory relief, like in TIVA?

[00:17:20] Speaker 06:
The agency, to my understanding, has no procedure to petition for a declaratory.

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I mean, the FCC had a regulation, for example, which course is closed because it's preliminary injunction.

[00:17:34] Speaker 02:
It just seems to me that it's, it's.

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Not clear to me that you don't have a way of raising this issue other than attacking Simeo.

[00:17:42] Speaker 06:
Well, there's no there's no way of raising the issue before the agency before the harm is incurred.

[00:17:48] Speaker 02:
Why can't you move for a preliminary injunction?

[00:17:51] Speaker 06:
Well, of course, that would require civil action, which is exactly what we did.

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Right.

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So why can't you do that?

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Why can't you sort it?

[00:18:03] Speaker 06:
So, OK, so we did file civil

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So that's what we tried to do.

[00:18:12] Speaker 02:
No, but you brought a civil action attacking Simeo.

[00:18:14] Speaker 02:
I'm saying why not in one of your members own cases?

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Can't you litigate this?

[00:18:22] Speaker 06:
Because there's no way for the issue to be triggered before they actually comply with the

[00:18:29] Speaker 02:
uh the the rule in simia and then when they comply with it there's no way to actually go to and file a civil action and say hey we would have to not comply right you would have to not comply and then move for a declaratory judgment or a preliminary injunction or let it proceed where where you're

[00:18:49] Speaker 02:
Beneficiary gets reported and then you approve.

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It's just it's just not clear to me that you cannot litigate.

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There's no way to litigate.

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Right.

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But it's like a conference group.

[00:18:58] Speaker 06:
Exactly.

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There was an administrative proceeding to ventilate that issue before any actual harm.

[00:19:04] Speaker 06:
What your honor is suggesting is to about the rule that

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USCIS put forward in Cineo, wait for an enforcement act.

[00:19:11] Speaker 02:
That's what conference group would have had to do too.

[00:19:14] Speaker 02:
If somebody wanted to challenge this in their own case, they would have had to probably flout the conference group rule and then litigate it.

[00:19:21] Speaker 06:
Well, right, but it would have been ventilated through the Bureau who had delegated authority to hear the issue and the party could have raised the points before the Bureau and then had administrative appeal before the FCC.

[00:19:35] Speaker 06:
That type of proceeding is inevitable.

[00:19:37] Speaker 02:
But I just don't understand why Simeo could do it.

[00:19:40] Speaker 02:
And none of your members can.

[00:19:41] Speaker 06:
Simeo could do it because they were actually the main party in the case.

[00:19:45] Speaker 06:
But of course, they weren't anywhere to it.

[00:19:47] Speaker 06:
They didn't actually appear in the appeal.

[00:19:49] Speaker 06:
So let's be clear about that.

[00:19:51] Speaker 02:
But I'm just saying that that issue was brought to the AAO.

[00:19:54] Speaker 02:
Simeo brought that issue to the AAO.

[00:19:56] Speaker 02:
And you're saying it's impossible for any of your members to do that.

[00:19:58] Speaker 06:
I'll technically submit Simeo did not bring the issue for the AAO.

[00:20:02] Speaker 06:
It was sort of applied by the district director.

[00:20:04] Speaker 06:
So Simeo did not appeal.

[00:20:06] Speaker 06:
It was certified, of course, after the petition had been revoked.

[00:20:12] Speaker 02:
OK.

[00:20:12] Speaker 02:
My point is simply Simeo brought that to the attention of a rule-making adjudicatory body.

[00:20:18] Speaker 06:
And I don't understand why none of your- Well, it didn't, because it didn't appear in the proceeding at the AAL.

[00:20:25] Speaker 06:
There's no indication in the administrative record that they appeared.

[00:20:28] Speaker 06:
But of course, if they chose to appear, that would be- I guess my question is, Simeo happened.

[00:20:32] Speaker 02:
How?

[00:20:33] Speaker 06:
Well, Simeo has, I think it's Simeo.

[00:20:40] Speaker 06:
It happened because of course they were a party to the administrator proceeding.

[00:20:45] Speaker 06:
It was their petition, the replication proceedings involved their petition and the certification to the AO involved their petition.

[00:20:53] Speaker 06:
So of course they were a party in that administrator proceeding.

[00:20:57] Speaker 06:
The whole point here is... So then what happened?

[00:20:59] Speaker 02:
So they said their petition was found

[00:21:03] Speaker 02:
to be insufficient, and then it went to the AEO, right?

[00:21:08] Speaker 06:
Well, certified to the AEO.

[00:21:10] Speaker 02:
Certified to the AEO.

[00:21:11] Speaker 02:
And why can't that whole process happen with one of your members?

[00:21:15] Speaker 06:
Because there's no way to bring up that issue before compliance.

[00:21:21] Speaker 06:
And if you fail to comply, then what happens is, as indicated in the agency's policy memo, you can be sanctioned by the employer and the employer

[00:21:32] Speaker 06:
the foreign national is out of status and put into removal proceedings.

[00:21:37] Speaker 06:
Those rule proceedings are not a vehicle by which the employer can challenge any of these issues.

[00:21:43] Speaker 06:
Immigration judges don't have the jurisdiction.

[00:21:45] Speaker 02:
Thank you.

[00:21:46] Speaker 02:
I understand the question.

[00:21:46] Speaker 05:
Can I just briefly on the merits, ask this rule or adjudication question.

[00:21:54] Speaker 05:
It's obviously significant for standing, but assuming we get over that hurdle.

[00:21:59] Speaker 05:
On the merits, you want to call this a rule

[00:22:03] Speaker 05:
in order to argue that the agency failed to comply with notice and comment.

[00:22:09] Speaker 05:
And your main reason for saying that is that they changed their mind on how to interpret material changes in the regulation.

[00:22:22] Speaker 05:
And that would have been a winning argument under our decision in paralyzed veterans, but that was unanimously reversed by the Supreme Court.

[00:22:33] Speaker 05:
So even if this is a rule, it's obviously interpretive.

[00:22:38] Speaker 05:
So your notice and comment claim doesn't get off the ground either way.

[00:22:50] Speaker 06:
I agree with you if we were talking about the agency changing course through the same proceeding.

[00:22:56] Speaker 06:
I believe it was mortgage bankers who took where the Supreme Court took issue with the paralyzed veteran, Alaska professional hunter case.

[00:23:07] Speaker 06:
But that's not an issue here.

[00:23:09] Speaker 06:
We're not raising the point about the agency changing course in the same proceeding.

[00:23:16] Speaker 06:
It is a different type of proceeding, but that's largely irrelevant for our argument.

[00:23:22] Speaker 06:
The argument is you have statutory provision which doesn't address the issue.

[00:23:27] Speaker 06:
It doesn't mention it.

[00:23:29] Speaker 06:
An agency publishes a regulation with a broad open-textured term like material change that changes with the facts and circumstances of the case.

[00:23:39] Speaker 06:
There's no way to flush out the meaning of that term except through further legislative rulemaking.

[00:23:45] Speaker 06:
If you flush out the meaning of that rule, you're necessarily putting flesh on it in a material way that would require rule.

[00:23:54] Speaker 06:
That's what the agency did in matter of simulant.

[00:23:57] Speaker 06:
That's what we're finding to be procedural.

[00:24:01] Speaker 05:
Okay.

[00:24:01] Speaker 05:
Thank you.

[00:24:03] Speaker 04:
We'll hear from the government.

[00:24:21] Speaker 04:
Thank you, Your Honor.

[00:24:22] Speaker 01:
Joshua Press from the Department of Justice here on behalf of the Department of Homeland Security.

[00:24:27] Speaker 01:
Mr. Payne, I want to get right to your question about seems sort of critical here.

[00:24:33] Speaker 01:
Is there a procedure by which one of IT service member companies could challenge the Senate?

[00:24:39] Speaker 01:
The answer is absolutely yes.

[00:24:41] Speaker 01:
And it is, this type of situation happens very frequently.

[00:24:46] Speaker 01:
In fact, today there are

[00:24:50] Speaker 01:
visa petitions with applicants in India who left during the COVID-19 pandemic.

[00:24:57] Speaker 01:
They are waiting, sometimes very long periods of time, but they are waiting with very old LCAs, very old H-1B petitions that were previously approved by USCIS, and they're waiting for a consular interview.

[00:25:10] Speaker 01:
And the reason I bring that up is the exact same fact kind of in accordance with those H-1B visa applicants, they will be beneficiary

[00:25:18] Speaker 01:
We clear the companies that are sponsoring them are the applicants themselves, per se.

[00:25:23] Speaker 01:
But the beneficiaries are the ones who have to go from the interview.

[00:25:27] Speaker 01:
It was in that size factual context where the consular officer from the State Department, which the council was putting out, makes the determination as to whether they issued a visa.

[00:25:38] Speaker 01:
Now, that is slightly different than, to be sure, what USCIS does and what the Ministry of Appeals Office, the AO, did in this case.

[00:25:47] Speaker 01:
But I think the critical point in why CIMIA was necessary for USCIS and the AO to actually adjudicate an issue of a presidential decision, that they were seeing this factor again and again, where essentially sponsoring employers would try to gain the system by including a lower wage area of the country.

[00:26:10] Speaker 01:
And then they would sort of use consultants in specialty occupation visa.

[00:26:18] Speaker 01:
maybe different places across the country for six months or years, instead of the actual wage rate that was initially determined, I think, within a seven day period of time, long ago, by the department of labor.

[00:26:30] Speaker 01:
So when the consular officer sees the blatant mismatch between what a decent applicant is telling him or her, oh, I'm going to work in Hoboken, Hoboken, for better or worse, is not Long Beach College.

[00:26:42] Speaker 01:
And that actually sort of raises a lot of suspicion with a constant officer.

[00:26:46] Speaker 01:
They might think, well, why are you lying to me?

[00:26:48] Speaker 01:
They might think, is this guy a security threat?

[00:26:51] Speaker 01:
And they have to be followed up with that.

[00:26:53] Speaker 01:
So the follow-up in this case was, oh.

[00:26:56] Speaker 01:
Sorry, you're talking about the initial.

[00:26:59] Speaker 01:
Oh, yes, that's right.

[00:27:00] Speaker 01:
The follow-up in CIMEO was, hey, you need to check out the initial application, the labor condition application that the Department of Labor approved as a prerequisite.

[00:27:12] Speaker 01:
within seven days.

[00:27:14] Speaker 01:
And to be clear, they're only looking for completeness and more, the obvious inaccuracies.

[00:27:20] Speaker 01:
So they're not going to catch if a work site gets substantially moved across the country.

[00:27:25] Speaker 05:
This problem arises when an H1B recipient comes into the country to work in River Long Beach and then is moved to a local.

[00:27:38] Speaker 05:
Yeah, it could easily arise in that because it's there.

[00:27:41] Speaker 05:
Is there any mechanism?

[00:27:42] Speaker 05:
What's the mechanism at that point?

[00:27:46] Speaker 05:
For judicial review, if I'm short of.

[00:27:54] Speaker 05:
DHS notices.

[00:27:56] Speaker 05:
the violation, the lack of a second filing, they deport the alien, the employer is not a party to the deportation proceeding, but then somehow once the alien has been removed from the country, that seems to be the posture in which Simeo or Simeo came up.

[00:28:16] Speaker 05:
Is that the mechanism?

[00:28:18] Speaker 01:
The normal mechanism would be if DHS or USCIS actually understands that the initial

[00:28:24] Speaker 01:
petition grant was made under false pretenses.

[00:28:29] Speaker 01:
They could revoke a petition or they could issue a notice of intent to revoke and they could flag for the employer who was the actual.

[00:28:36] Speaker 05:
Sorry, DHS does that?

[00:28:38] Speaker 01:
Yes.

[00:28:38] Speaker 01:
Okay.

[00:28:38] Speaker 01:
And they could flag, Hey, we noticed that your Department of Labor condition application said Long Beach.

[00:28:46] Speaker 01:
It looks like he, the actual beneficiary is working a lot in Hoboken, which is

[00:28:54] Speaker 01:
has a different prevailing way.

[00:28:57] Speaker 01:
The average wage rate, which I think for an applicant who is getting about $50,000 a year is a 20% difference.

[00:29:04] Speaker 01:
It's a big difference.

[00:29:06] Speaker 01:
You need to respond to those.

[00:29:08] Speaker 01:
Otherwise, we're going to revoke the petition that was previously granted.

[00:29:11] Speaker 01:
That would leave them unable to employ the applicant.

[00:29:15] Speaker 01:
And the beneficiary would then be out of status if that status gets revoked.

[00:29:19] Speaker 01:
That does not mean they might not be able to change status to something else.

[00:29:24] Speaker 05:
It also does not mean they're going to when DHS notices that violation and does what you're describing is the action against the employee or the employer employer.

[00:29:34] Speaker 01:
Now the deportation proceedings are removed.

[00:29:39] Speaker 01:
Those against the employee, the beneficiary individual applicant, but that I want to be clear here.

[00:29:46] Speaker 01:
We're not talking about any sort of scenario here.

[00:29:48] Speaker 01:
Any of the IT service members, employees today,

[00:29:52] Speaker 01:
They're here on H1B visas, who are being threatened with deportation because ICE, Immigration and Customs Enforcement, is a separate sub-agency within DHS.

[00:30:03] Speaker 01:
They make that determination.

[00:30:05] Speaker 01:
And they have their own prosecutorial discretion, their priorities, and that's all under very different litigation from this one.

[00:30:13] Speaker 01:
But that's sort of it.

[00:30:14] Speaker 01:
And then I'm hoping to explain the procedural posture that DHS uses.

[00:30:18] Speaker 01:
I know it's very complicated.

[00:30:19] Speaker 02:
Can I just ask, so when the agency issues the notice of intent to revoke your petition, can you appeal that for a say of that?

[00:30:28] Speaker 01:
Yes, you can move to reopen or reconsider or the AO could take that decision.

[00:30:36] Speaker 01:
Let's say the director's office does revoke.

[00:30:40] Speaker 01:
We're in a slightly different factual background, but we're basically in the exact same posture, cooperatively.

[00:30:45] Speaker 01:
They could take that revocation.

[00:30:48] Speaker 01:
The AAO could do the exact same thing here.

[00:30:50] Speaker 02:
They would have to actually revoke, though, to get to the AAO.

[00:30:53] Speaker 02:
The notice of the revocation would not be sufficient.

[00:30:55] Speaker 02:
Actually, the AAO could take it on its own if it wanted to.

[00:30:58] Speaker 02:
OK.

[00:30:58] Speaker 02:
Even before the actual revocation takes place?

[00:31:00] Speaker 01:
Yes.

[00:31:01] Speaker 01:
That's very, very rare.

[00:31:03] Speaker 01:
Because, of course, they like to have something actually developed for them.

[00:31:06] Speaker 01:
But it could happen, I believe.

[00:31:09] Speaker 01:
But nonetheless, the proper way to challenge that, I think the core of what we're trying to argue

[00:31:14] Speaker 01:
uh, in our briefing and what we argued below, part of the standing and conference group.

[00:31:18] Speaker 01:
Probably the challenge that is to bring an action in district court challenging revocation, uh, as our research precious and violation of the A. They could talk about Simeo or whatever you call it.

[00:31:31] Speaker 01:
The reason of course, they're not here to actually pronounce their name there as this is an improper application of that or that rule or the judicative rule that was laid down in that opinion by the A. L.

[00:31:43] Speaker 01:
is ultraviaries or something along those lines.

[00:31:45] Speaker 05:
There's no specialized review scheme that would attach to that.

[00:31:49] Speaker 05:
The INA is just, of course, chock full of these things that tend to.

[00:31:53] Speaker 01:
Not beyond the AO.

[00:31:54] Speaker 01:
The AO would be the limit or within DHS, and then it would be up to a kind of employer or employee.

[00:32:03] Speaker 05:
You could go to district court through the APA without having some kind of channeling argument.

[00:32:07] Speaker 01:
That's correct.

[00:32:08] Speaker 01:
That happens.

[00:32:09] Speaker 01:
It's not uncommon for that exact scenario

[00:32:14] Speaker 00:
I'm just going to change the subject.

[00:32:19] Speaker 00:
Go ahead.

[00:32:20] Speaker 00:
Assume I think they have standing to raise their argument that this is a rulemaking in the guise of an adjudication, okay?

[00:32:30] Speaker 00:
Assume for a minute that that's what I think.

[00:32:34] Speaker 00:
What's your best argument that this is in fact an adjudication?

[00:32:37] Speaker 01:
Well, it had immediate impact to Sineo Solutions.

[00:32:41] Speaker 01:
in the sense that they could no longer employ that employee whom they actually had petitioned for, whom they essentially wanted to employ.

[00:32:47] Speaker 00:
And of course... What about their argument that they had withdrawn the petition before them?

[00:32:54] Speaker 01:
Frankly, I was also frustrated by the record in the sense that I didn't... Me too.

[00:33:00] Speaker 01:
So can you help us?

[00:33:02] Speaker 01:
I think in terms of reading the opinion from the... Yeah.

[00:33:07] Speaker 01:
It reads...

[00:33:08] Speaker 01:
Not as well as your honor's opinions here, of course, but it is in a judicial opinion in that mold, to be sure.

[00:33:15] Speaker 01:
And I just don't think anyone can claim otherwise.

[00:33:18] Speaker 01:
Now, in terms of adjudicative facts that were there, they were presented with a clear record, a problem that they were seeing.

[00:33:24] Speaker 01:
Now, it's not, it wasn't a general problem that you would normally see in a notice of rules rulemaking.

[00:33:29] Speaker 01:
It was actual circumstances of specific locations, specific wage rates in different metropolitan statistical areas, visa applicant at

[00:33:38] Speaker 01:
with a consular interview.

[00:33:41] Speaker 01:
Those are, I don't know how to say it, real world facts, and they were applying what they saw as the INA and their regulations, i.e.

[00:33:49] Speaker 01:
law, to facts.

[00:33:51] Speaker 01:
And that's what we see in an adjudication differentiation from rulemaking, which is policymaking via actually announcing a rule, having notice and comment, discussing the weighing benefits and costs.

[00:34:04] Speaker 00:
Okay, so let me go on then to

[00:34:07] Speaker 00:
So you also say that they don't have standing to raise their other arguments, not just the argument that this is a rulemaking in disguise, but they can't raise their other arguments.

[00:34:20] Speaker 00:
And you rely on a conference group for that, right?

[00:34:23] Speaker 01:
Yes, there's a lot of discussion.

[00:34:24] Speaker 00:
Yeah.

[00:34:24] Speaker 00:
So this conference group, I'm just curious.

[00:34:28] Speaker 00:
In conference group, that was a petition for review, whereas here they file an APA action just like in TIVA.

[00:34:35] Speaker 00:
Does that make a difference?

[00:34:37] Speaker 01:
But I think the core of our standing argument is that, frankly, they could never actually show the definite time that one of their members were subject to Simeo other than once in the course of litigation.

[00:34:52] Speaker 01:
But they actually could never show anything beyond some day of filing other HOP petitions.

[00:34:58] Speaker 00:
OK, well, suppose I think their declarations are adequate.

[00:35:02] Speaker 00:
OK, what's the other argument?

[00:35:03] Speaker 01:
I do think that if you apply Judge Siltman's opinion

[00:35:06] Speaker 01:
If you do what?

[00:35:08] Speaker 01:
I agree with what you're getting at is that the conference group does make this differentiation between whether it's an adjudication that's being reviewed or as a rule being reviewed.

[00:35:19] Speaker 01:
And the same sort of scenario could support standing for one, that is, if it were a rule, they would have... No, let's assume I agree with you that it's an adjudication.

[00:35:32] Speaker ?:
Okay.

[00:35:33] Speaker 01:
I don't think they would have standing because it would be the same thing as someone coming in.

[00:35:41] Speaker 01:
What do you do with Tiva?

[00:35:43] Speaker 01:
I think within Tiva contrast is that they were actually pointed to a case.

[00:35:48] Speaker 01:
Frankly, we never presented with any dates other than we might have 63 more of these.

[00:35:53] Speaker 00:
They have affidavits telling us exactly how much this is costing them and how many applications they're going to have to pay for in the next year.

[00:36:02] Speaker 01:
Yes, but I think that's my point is projecting 63 within the next three years and how that projections of what it might cost is far from impending or certain or actual.

[00:36:12] Speaker 01:
And I think that's the distinction that we're trying to make between this case.

[00:36:15] Speaker 00:
It's an awfully fine line.

[00:36:17] Speaker 00:
I mean, the affidavits are pretty clear, the declarations.

[00:36:22] Speaker 01:
I respectfully disagree with that just because I would read that those things is what might occur within three years considering what we've all gone through in the last three years as some of the intentions.

[00:36:32] Speaker 01:
And if something is coming up within the next six months and they could point to that.

[00:36:35] Speaker 00:
Well, what else should they have said?

[00:36:37] Speaker 00:
What more should they have said?

[00:36:39] Speaker 01:
I think they would actually say, we have this employee, we believe that he or she is going to need to be moved from X location to Y location with a different wage rate.

[00:36:49] Speaker 01:
And if we don't actually, if we're not able to do that, we're certain that USAS will revoke that petition.

[00:36:57] Speaker 05:
But that's an argument about the imminence of the future injury.

[00:37:05] Speaker 05:
It's not an argument about

[00:37:07] Speaker 05:
is this an adjudication or is this a rule?

[00:37:10] Speaker 05:
I thought that was the whole point of Teva.

[00:37:14] Speaker 05:
I mean, you know, you have Scalia, but I have Tatel.

[00:37:18] Speaker 05:
I mean, Teva seemed pretty persuasive on that point, right?

[00:37:24] Speaker 05:
If you have a rule, if you have an adjudication, there might be reason for thinking like, who knows how it's going to apply in some future case, but that doesn't prevent

[00:37:36] Speaker 05:
a non-party to the adjudication from saying, look, it established a perfectly clear principle of law, whether we call it a rule or not, and it's going to have an imminent impact on me or my members.

[00:37:50] Speaker 01:
So I agree with what you're saying there in terms of, and this is the same distinction in conference room.

[00:37:55] Speaker 01:
There are two analyses and two different distinctions.

[00:38:00] Speaker 01:
I just think that if you're going to talk about Tiva, the distinction was that they could actually point to it.

[00:38:07] Speaker 01:
Just say I just I didn't hear what you said if you're going to talk about Tiva thought that yes relying on Tiva for standing purposes in this case I think is a vastly different circumstance because there was a date there was a there was there was a date certain and so I think the Supreme Court case that came to mind imminently was where a pre-regulatory challenge of we're sure that this regulation is going to go into effect on five months from now it will then cause us millions of dollars

[00:38:34] Speaker 01:
That's a completely different situation from what we think we might file 63 petitions within the next three years.

[00:38:40] Speaker 01:
And if we had to do that, 63 times about $460.

[00:38:45] Speaker 01:
Sorry, I went to law school.

[00:38:47] Speaker 05:
But it's really, again, maybe I'm repeating myself, but that's really a question not about rule versus adjudication.

[00:38:56] Speaker 05:
That's a question about whether this case falls within Lujan's Sunday intentions.

[00:39:01] Speaker 05:
That's correct.

[00:39:02] Speaker 02:
The district court, though, found standing based on the business model of the member companies.

[00:39:10] Speaker 00:
Is that appropriate?

[00:39:12] Speaker 02:
It says the court finds based on the member company's business models, they face increased costs.

[00:39:20] Speaker 01:
So we disagree with that.

[00:39:21] Speaker 01:
We respectfully disagree with that, with that approach, because essentially

[00:39:26] Speaker 01:
Any employer could say our business model requires us to shift people across the country.

[00:39:32] Speaker 01:
They still need to show imminent or impending injury.

[00:39:36] Speaker 01:
And that requires being up more than some day.

[00:39:40] Speaker 01:
Frankly, we read the affidavits, never be more than the, never anything more than some day attentions.

[00:39:47] Speaker 01:
And that's why we.

[00:39:54] Speaker 01:
Thank you.

[00:40:09] Speaker 04:
Thank you.

[00:40:10] Speaker 04:
Just two points.

[00:40:13] Speaker 06:
Your Honor, I guess I do need to correct a statement.

[00:40:15] Speaker 06:
I see your point.

[00:40:17] Speaker 06:
I've just reviewed a conference group again.

[00:40:19] Speaker 06:
And for standing purposes on challenging the rule, Your Honors, the court noted that they actually did show additional financial costs because of the regulation.

[00:40:32] Speaker 06:
Nevertheless, later in the opinion, what changed on the matter was that

[00:40:39] Speaker 06:
The conference group, please go, and before the Bureau and the FCC, before they pay the costs to the fund.

[00:40:50] Speaker 06:
That's just not available here.

[00:40:53] Speaker 06:
And one of the points that my team, the Post and Council, mentioned about those types of proceedings challenging an H-1B revocation is that the revocation actually has to be entered before an appeal to the EA

[00:41:08] Speaker 06:
It's taken.

[00:41:11] Speaker 06:
But what the critical point here is that the employers in this regulatory regime suffer an immediate harm and consequence, unlike what was in the conference group, because what they do is risk not only revocation of their petition, but then the foreign national being out of status and being removed.

[00:41:34] Speaker 06:
And therefore, if that happens, of course,

[00:41:38] Speaker 06:
have no vehicle necessarily to challenge that revocation because they no longer have a employee here in the United States.

[00:41:46] Speaker 06:
The removal proceedings take place separately.

[00:41:48] Speaker 06:
They have no standing in that matter.

[00:41:57] Speaker 06:
And if the court doesn't have any other questions, I think that was it.

[00:42:01] Speaker 05:
Thank you.

[00:42:02] Speaker 05:
We appreciate the eight seconds seated back.

[00:42:04] Speaker 05:
The case is submitted.