Supreme Court Should Decide Whether DHS Has Independent Authority To Allow Visa Holders To Work In The United States

The certiorari petition in Save Jobs USA v. Department of Homeland Security (24-923) asks the Supreme Court to decide whether DHS has authority under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(15), to decide, independently of Congress, which statutorily defined classes of nonimmigrant alien visa holders can work while in the United States. Resolution of this important, long-percolating, and recurring separation of powers and statutory interpretation issue will directly affect the size, composition, and permanence of the nation’s workforce, including in the highly competitive, technology sector.

Issue Areas:

Free Enterprise, Limited Government, Separation of Powers

Case:

Save Jobs USA v. Dep’t of Homeland Security (24-923) (Supreme Court) (petition)

Read the Amicus Brief:

Question(s) Presented:

1. Whether the Department of Homeland Security can grant work authorization for classes of nonimmigrants for whom Congress has refused to grant work authorization.

2. Whether the statutory terms defining nonimmigrant visas in 8 U.S.C. § 1101(a)(15) are mere threshold entry requirements that cease to apply once an alien is admitted or whether they persist and dictate the terms of a nonimmigrant’s stay in the United States.

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Additional Background:

The petitioner in Save Jobs USA is a group of California-based technology workers who allege that their former employer replaced them with nonimmigrant alien H-1B “specialty occupation” visa holders. They are challenging a 2015 DHS regulation that allows the spouses of H-1B visa holders to work in the United States. Such spouses, classified as H-4 visa holders, never before had been allowed to work while in the United States. DHS changed that decades-long policy, and authorized H-4 spouses to work, as an incentive for H-1B workers to stay while pursuing the long process of becoming permanent U.S. residents.

The D.C. Circuit held in Save Jobs USA that DHS authority to allow H-4 spouses to work is controlled by Washington Alliance of Technology Workers v. U.S. Department of Homeland Security (“Washtech”), 50 F.4th 164 (D.C. Cir. 2022), cert. denied 144 S. Ct. 78 (2023). In a 2 to 1 decision, the court of appeals held in Washtech that 8 U.S.C. § 1101(a)(15) (defining “classes of nonimmigrant aliens”) merely “identifies entry conditions” for nonimmigrant aliens, and that a different INA provision, 8 U.S.C. § 1184(a)(1), vests DHS with separate and independent authority “to set the time and conditions of . . . nonimmigrants’ stay” in the United States, including the “power to authorize employment reasonably related to the nonimmigrant visa class.” 50 F.4th at 168, 169.

ALF’s Amicus Brief:

ALF’s amicus brief argues that the “major questions doctrine” applies to the statutory construction question presented by this case. Under that doctrine, courts “presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.” West Virginia v. EPA, 597 U.S. 697, 723 (2022). For this reason, the agency “must point to clear congressional authorization for the power it claims.” Id. ALF contends in its brief that the issue of whether DHS has the power to decide for itself which particular statutorily defined classes of nonimmigrant alien visa holders should be allowed to work in the United States is a “major question” because it involves complex, policy-driven decisions that affect millions of nonimmigrant aliens and American workers, and can have vast economic, social, national security, and foreign relations ramifications.

Status:

Petition-stage briefing is underway.

Contact:

Email ALF Executive Vice President & General Counsel Lawrence Ebner.