Save Jobs USA v. United States Department of Homeland Security, Office of General Counsel

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted April 26, 2024 Decided August 2, 2024
No. 23-5089
SAVE JOBS USA,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
OFFICE OF GENERAL COUNSEL, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00615)
John M. Miano and Christopher Hajec were on the briefs
for appellant.
Carl E. Goldfarb and Megan Nyman were on the brief for
appellees Immigration Voice and Anujkumar Dhamija.
Brian M. Boynton, Principal Deputy Assistant Attorney
General, U.S. Department of Justice, Glenn M. Girdharry,
Assistant Director, and Alessandra Faso, Trial Attorney, were
on the brief for appellee United States Department of
Homeland Security. Joshua S. Press, Attorney, entered an
appearance.

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Leslie K. Dellon and Jennifer R. Coberly were on the brief
for amici curiae American Immigration Council and American
Immigration Lawyers Association in support of appellees.
Before: SRINIVASAN, Chief Judge, WILKINS and WALKER,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: The Department of Homeland
Security issued a rule that allows certain visa holders to work
in the United States. Save Jobs USA challenged the rule,
arguing that DHS exceeded its authority under the Immigration
and Nationality Act. See 8 U.S.C. § 1101 et seq., see also 8
U.S.C. §§ 1103(a)(3), 1184(a)(1).
But this court has already interpreted the relevant
provisions of the INA to answer a similar question in favor of
DHS. See Washington Alliance of Technology Workers v.
DHS, 50 F.4th 164 (D.C. Cir. 2022) (“Washtech”). Because
Save Jobs USA has not meaningfully distinguished this case
from that binding precedent, we affirm the district court’s grant
of summary judgment.
I
The Immigration and Nationality Act includes two
provisions relevant to this case. The first is 8 U.S.C.
§ 1184(a)(1) — when an alien is admitted into the country as a
nonimmigrant, the admission “shall be for such time and under
such conditions as the [Secretary of Homeland Security] may
by regulations prescribe.” The second is 8 U.S.C.
§ 1103(a)(3) — the Secretary of Homeland Security “shall
establish such regulations . . . and perform such other acts as he

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deems necessary for carrying out his authority under the” INA.
The upshot, according to our recent precedent, is that Congress,
through the INA, “granted the Executive power to set the
duration and terms of statutorily identified nonimmigrants’
presence in the United States.” Washtech, 50 F.4th at 177.
Two related classes of “statutorily identified
nonimmigrants” are specialized foreign workers (H–1B visa
holders) and their dependent spouses (H–4 visa holders). See
8 U.S.C. § 1101(a)(15)(H). H–1B holders are allowed to work
in the United States for up to six years. But H–4 dependent
spouses are generally not permitted to work.
This can lead to problems for H–1B visa holders seeking
to become lawful permanent residents. See Save Jobs USA v.
DHS, 942 F.3d 504, 506-08 (D.C. Cir. 2019) (outlining the
process). Becoming a lawful permanent resident can take
years, and frequent processing delays require numerous
extensions of time. See id.
As for H–1B visa holders’ dependent spouses (the H–4
visa holders), their “inability to work during these delays leads
to personal and economic hardships that worsen over time,
increasing the disincentives for H–1B nonimmigrants to pursue
lawful permanent resident status and thus increasing the
difficulties that U.S. employers have in retaining highly
educated and highly skilled nonimmigrant workers.” Id. at
507-08 (cleaned up).
In 2015, DHS promulgated a rule to address that situation,
relying on the two INA provisions described above. Its “H–4
Rule” allows select H–4 visa holders to work in the United
States while their H–1B spouses transition to lawful permanent
resident status. See Employment Authorization for Certain H–
4 Dependent Spouses, 80 Fed. Reg. 10,284, 10,311 (Feb. 25,

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2015) (codified at 8 C.F.R. §§ 214.2, 274a.12, 274a.13) (“H–4
Rule”); see also Save Jobs USA, 942 F.3d at 507-08 (explaining
the rule in detail). With the H–4 Rule, DHS hopes to
“ameliorate certain disincentives for talented H–1B
nonimmigrants to permanently remain in the United States and
continue contributing to the U.S. economy as” lawful
permanent residents. 80 Fed. Reg. 10,284, 10,284 (Feb. 25,
2015) (codified at 8 C.F.R. §§ 214.2, 274a.12, 274a.13).
Save Jobs USA challenged DHS’s authority to issue the
rule. See Save Jobs USA v. DHS, 664 F. Supp. 3d 143, 148-51
(D.D.C. 2023). The district court granted DHS’s motion for
summary judgment. See id. at 148 (citing Washtech, 50 F.4th
at 164).1 Save Jobs USA appealed.
II
DHS says this court’s recent decision in Washtech
interpreted the Immigration and Nationality Act to authorize
immigration-related employment rules like the H–4 Rule. Save
Jobs USA makes little effort to dispute that reading of
Washtech. We therefore affirm the district court’s decision
awarding summary judgment to DHS.
A
Washtech reviewed an employment rule promulgated by
DHS pursuant to the INA. 50 F.4th at 169-72 (citing 8 U.S.C.
§ 1184(a)(1)). The rule allowed foreign students (F–1 visa
holders) who had completed their coursework to work for a
1 The district court initially held that Save Jobs USA lacked standing
and granted summary judgment to DHS. See Save Jobs USA v. DHS,
210 F. Supp. 3d 1, 13 (D.D.C. 2016). Our court reversed and
remanded. See Save Jobs USA, 942 F.3d at 512.

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limited time to gain practical training. Id. at 172 (citing 8
C.F.R. § 214.2(f)(5)(i), (f)(10), (f)(11)). To support the rule,
DHS relied on § 1184(a)(1) and § 1103(a) of the INA. Id. at
177, 179.
Washtech upheld the F–1 Rule for two key reasons
relevant on this appeal.2
First, according to Washtech, § 1184(a)(1) “specifically
provides” DHS with “time-and-conditions authority.” Id. at
190, 193. Because the F–1 Rule “regulates the ‘time’ and
‘conditions’ of admission for F–1 visa-holders, and because it
is reasonably related to the distinct composition and purpose of
that visa class, as defined in the F–1 provision, the Secretary
had authority to promulgate it.” Id. at 177.
Second, according to Washtech, our precedents recognize
“broad authority conferred upon DHS by sections 1184(a) and
1103(a).” Id. at 179 (cleaned up). Washtech read those
precedents to mean “that the INA need not specifically
authorize each and every action taken by DHS, so long as its
action is reasonably related to the duties imposed upon it.” Id.
(cleaned up).
2 Washtech did not depend on Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), overruled by
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). True,
Washtech applied Chevron as a counter-factual, fallback argument.
See 50 F.4th at 192 (“even if [the INA] is ambiguous on the point,
the statute may reasonably be understood as the Department has read
it”) (emphasis added); id. (“[e]ven if alternative readings are
available”) (emphasis added). But that did not alter Washtech’s
holding that the “best” and “most straightforward reading of the
INA” authorized the challenged rule. Id.

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With that understanding, we turn to our case. Here, DHS
authorized certain nonimmigrants to work in the United
States — just like in Washtech. And to do so, DHS relied on
§ 1184(a)(1) and § 1103(a) of the INA — just like in
Washtech.
Save Jobs USA makes little effort trying to meaningfully
distinguish this case from Washtech. Instead, it disparages
Washtech, arguing that it “held that the Immigration and
Nationality Act confers on DHS the vast power to permit alien
employment through regulation through ancillary provisions
that do not even mention employment.” Save Jobs USA Br. at
16 (emphasis added).3
As the end of that last sentence suggests, Save Jobs USA
disagrees with Washtech — and would like us to overrule it.
See id. at 10, 15, 16-17. But we “cannot overrule a prior panel’s
decision, except via an Irons footnote or en banc review.”
Robinson v. DHS Office of Inspector General, 71 F.4th 51, 56
n.1 (D.C. Cir. 2023) (cleaned up).4
3 In the district court, Save Jobs USA did “not cite, much less contest,
the explicit statutory grant of time-and-conditions authority to DHS
in 8 U.S.C. § 1184(a)(1).” Save Jobs USA, 664 F. Supp. 3d at 150.
And on appeal, Save Jobs USA argues Washtech is inconsistent with
past precedents, but does not name any relevant to this case. See
Save Jobs USA Br. at 16-17.
4 Last year, the court denied the petition for en banc review in
Washtech. Washington Alliance of Technology Workers v. DHS, 58
F.4th 506, 508 (D.C. Cir. 2023) (en banc); cf. Robinson, 71 F.4th at
56 n.1 (“In an Irons footnote, named after the holding in Irons v.
Diamond, 670 F.2d 265, 267-68 & n.11 (D.C. Cir. 1981), the panel
seeks for its proposed decision the endorsement of the en banc court,
and announces that endorsement in a footnote to the panel’s
opinion.”) (cleaned up).

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B
Save Jobs USA wants us to displace Washtech because it
did not address the major questions doctrine. See Save Jobs
USA Br. at 8-10, 16-17; cf. Washtech, 50 F.4th at 206 & n.11
(Henderson, J., concurring in part and dissenting in part)
(raising major questions doctrine concerns); Washington
Alliance of Technology Workers v. DHS, 58 F.4th 506, 508-11
(D.C. Cir. 2023) (Rao, J., dissenting from the denial of
rehearing en banc). But that’s not how stare decisis works.
The major questions doctrine holds that courts “expect
Congress to speak clearly if it wishes to assign to an agency
decisions of vast economic and political significance.” West
Virginia v. EPA, 597 U.S. 697, 716 (2022) (cleaned up). Like
a dictionary, or expressio unius, or the extraterritoriality canon,
the major questions doctrine is a tool of statutory interpretation.
That’s true whether you think it’s a linguistic canon, or a
substantive canon with a constitutional basis safeguarding the
separation of powers, or both. Compare Biden v. Nebraska,
143 S. Ct. 2355, 2376-83 (2023) (Barrett, J., concurring), with
West Virginia, 597 U.S. at 736-46 (Gorsuch, J., concurring).
Regardless, the function of the major questions doctrine is
simple — to help courts figure out what a statute means. And
so far as today’s case is concerned, Washtech has already done
that.
To be sure, vertical stare decisis requires fidelity to West
Virginia when deciding any open question of statutory
interpretation. It also requires a circuit panel to depart from a
circuit precedent decided before West Virginia if the circuit
precedent’s reasoning was later “eviscerated” by the reasoning
in West Virginia. Dellums v. U.S. Nuclear Regulatory
Commission, 863 F.2d 968, 978 n.11 (D.C. Cir. 1988); see also
Bahlul v. United States, 77 F.4th 918, 925 (D.C. Cir. 2023)

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(“We may depart from the law of the case and from circuit
precedent . . . based on an intervening Supreme Court
decision.”).
But Washtech was decided after West Virginia. So the
relationship between those two cases was Washtech’s legal
issue, not ours. And “if stare decisis means anything, it means
a future court lacks the authority to say a previous court was
wrong about how it resolved the actual legal issue before it.”
Gibbons v. Gibbs, 99 F.4th 211, 215 (4th Cir. 2024).
* * *
We affirm the district court.
So ordered.

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