Tag Archive for: major questions doctrine

Cyrus Mehta & Kaitlyn Box*

Major Questions Doctrine in Immigration Cases after the Supreme Court Ruling in the Tariffs Case

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By Cyrus D. Mehta and Kaitlyn Box*

In a previous blog, we addressed the major questions doctrine, an idea articulated by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022). The major questions doctrine holds that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”. We have advocated for the major questions doctrine as a tool that can be used to challenge the Trump administration’s sweeping changes to the immigration landscape through executive power.

The major questions doctrine, which is triggered when executive actions have major economic or political significance,  was very recently employed by the Supreme Court to invalidate a Trump administration policy. On February 20, 2026, in Learning Resources, Inc. v. Trump, 24-1287, (02/20/2026), the Supreme Court struck down the tariffs imposed by the Trump administration. In his majority opinion, Chief Justice John Roberts leaned heavily on the major questions doctrine, writing: “Th[e] stakes dwarf those of other major questions cases…[t]he President must “point to clear congressional authorization” to justify his extraordinary assertion of the power to impose tariffs…He cannot.” The Court was not persuaded by the government’s argument that the major questions doctrine does not apply to emergency statutes, stating that: “Where Congress has reason to be worried about its powers ‘slipping through its fingers,’…we in turn have every reason to expect Congress to use clear language to effectuate unbounded delegations”. Additionally, the Court held that the major questions doctrine is applicable notwithstanding the President’s authority to handle foreign affairs matters. The Court reasoned that only Congress can regulate tariffs ordinarily, despite tariffs always have foreign policy implications, and any delegation of this power by Congress would surely have been outlined explicitly. The Court concluded that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs, holding that “IEEPA’s grant of authority to ‘regulate . . . importation’ falls short” of conferring such authority, and that “IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word ‘regulate’ to authorize taxation”. 

Justice Kagan’s concurring opinion, however, emphasized that one does not need to rely on the major questions doctrine to challenge Trump administration policies. Justice Kagan objected to “…the demand for a special brand of legislative clarity” introduced in the line of cases elucidating the major questions doctrine. Instead, she argued that “the proper way to interpret a delegation provision is through the standard rules of statutory construction”, or “examining a delegation provision’s language, assessing that provision’s place in the broader statutory scheme, and applying a ‘modicum of common sense’ about how Congress typically delegates”. Applying a standard statutory interpretation analysis, Justice Kagan concluded that “[t]he crucial provision of IEEPA, when viewed in light of the broader statutory scheme and with a practical awareness of how Congress delegates tariff authority, does not give the President the power he wants”.

Extrapolating the Supreme Court’s reasoning to the immigration context, the major questions doctrine could be employed to challenge Trump administration policies like restricting birthright citizenship, or implementing a $100,000 fee for many H-1B visa applications.  The Presidential Proclamation implementing the new fee points to INA 221(f) as the authority for the policy. INA 221(f) states that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This fee would radically reshape the H-1B visa program, qualifying as an “extraordinary case” in which the major questions doctrine should apply. The $100,000 fee poses severe consequences for not only foreign professionals seeking H-1B visas, but also U.S. employers that hire H-1B workers, many of whom will now be practically unable to avail of the H-1B visa program. However, nothing in INA 221(f) authorizes the president to impose new fees for visa applications, let alone practically eviscerate a visa category. If Congress intended for the president to have the authority to dismantle entire visa categories, it would surely have granted him that power explicitly.

Although Justice Kagan makes a compelling  argument that one can rely on statutory construction rather than the major questions doctrine, we believe that the major questions doctrine may give plaintiffs a better chance to slice through INA 221(f) that has previously been upheld in Trump v. Hawaii as  giving the president broad power over immigration. 

The fee was upheld in federal district court in Chamber of Commerce v. DHS, with the court making only a passing reference the major questions doctrine. In footnote 8, the court states that “During the hearing, which lasted over two hours, the major questions doctrine was not mentioned once. Any argument that a substantive version of the major questions doctrine is relevant to this issue has thereby been forfeited…” In a second lawsuit filed in the U.S. District Court for the Northern District of California to challenge the $100,000 fee, Global Nurse Force v. Trump, which has not yet been decided and see here a link to the pleadings, plaintiffs have forcefully argued that interpreting INA §§ 212(f) and 215(a) to authorize the president to establish the $100,000 fee would “violate the major questions doctrine because these provisions contain no clear Congressional authorization for this action of great political and economic significance. And, there is no basis for delegated authority for the President to raise and spend money as he sees fit.”Following the Supreme Court’s decision in Learning Resources, however, the major questions doctrine may become a more robust tool for future challenges to the fee and in other immigration cases. 

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

How the Major Questions Doctrine Can Undo some of Trump’s  Policies, Including On Birthright Citizenship

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By Cyrus D Mehta and Kaitlyn Box*

Introduced by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022), the major questions doctrine holds that, “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”. Until now, the doctrine has largely been used by the conservative-majority Supreme Court to thwart Biden-era policies, but a recent New York Times op ed by Aaron Tang highlights the doctrine’s potential to be a tool in challenging Trump’s actions, including those relating to immigration. 

Lawsuits have been filed challenging Trump’s  tariffs questioning whether there is clear authorization as they present a matter of vast economic and political significance. Like his tariffs, Trump’s efforts to freeze federal funding, interfere with the states’ administration of their elections and slash the government using the Department of Government Efficiency “DOGE”) are all areas of major national significant that Congress has not authorized the president to decide, the lawsuits claim.

Even if the immigration arena, lawsuit’s invoking the major  questions doctrine challenging Trump’s modification of birthright citizenship question whether federal law has granted the president authority to revoke birthright citizenship. 

In a previous blog we examined the role of the major questions doctrine in the immigration context in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”) and Texas v. DHS. The dissent in Washtech indicated that the issue of whether DHS’ 2016 Optional Practical Rule for students in F-1 visa status exceeds its statutory authority was a “major question”, and finding that the doctrine applied, directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle. The major questions doctrine arose again in Save Jobs USA v. DHS, which involved a challenge to the regulation providing work authorization to some H-4 spouses.  There, the D.C. Circuit was not compelled by an argument that Washtech  should be disregarded because it did not address the major questions doctrine, holding that because Washtech had already interpreted the relevant regulations after West Virginia v. EPA, it remained good law. The court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. 

Trump may  be hoisted by his own petard through the major questions doctrine in a birthright citizenship case. Santa Clara County California, in a lawsuit aimed at blocking the implementation of the Trump administration’s executive order restricting birthright citizenship, invoked the major questions doctrine. On page 17 of its brief, Santa Clara County states: 

Even if Section 301(a) could be construed to leave any ambiguity about the meaning of the phrase “subject to the jurisdiction thereof,” there is no basis for any argument that in 1952 Congress intended that such an ambiguity serve as a delegation of broad authority to the President to define the parameters of a statute, let alone a constitutional right. It is difficult to imagine any question of greater “economic and political significance” than the scope of a provision that describes what group of people constitutes the American polity and may participate in its sovereignty. See, e.g., West Virginia v. EPA, 597 U.S. 697, 721 (2022) (statutory ambiguities should not lightly be construed to delegate decision making authority on major questions of economic or political importance). Given these stakes, it is untenable to read the INA as granting the President the authority to resolve or disturb the statutory meaning.

As Tang points out, the major questions doctrine was developed by the Supreme Court at a time when Chevron required the court to give broad discretion to agency decisions. As our previous blog discusses, courts may have now have more latitude to strike down agency actions since the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned Chevron and instructed courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the Administrative Procedure Act  requires”. 

The major questions doctrine can now serve as yet a further tool for courts to employ in resisting the Trump administration’s efforts to make sweeping and destructive changes to immigration law and policy through executive power. Another example is the Trump administration’s broad interpretation of the Alien Enemy Act beyond an armed conflict, to include migration and drug smuggling as an “invasion”, thus triggering sweeping executive removal power. Would the courts consider whether a matter of such “vast … political significance” ought to be decided by the executive branch absent clearer instruction from Congress under the major questions doctrine? 

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Court Upholds Regulation Issuing Employment Authorization to H-4 Spouses Even After the Demise of Chevron Deference

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By Cyrus D. Mehta and Kaitlyn Box*

On August 2, 2024, the D.C. Court of Appeals issued its opinion in Save Jobs USA v. DHS, upholding the regulation that provides employment authorization to certain H-4 spouses of H-1B nonimmigrants. Save Jobs USA, an organization aiming to “address the problems American workers face from foreign labor entering the United States job market through visa programs” had challenged this regulatory provision, 8 C.F.R. §§ 214.2, 274a, arguing that it “exceeded the [DHS]’s statutory authority, and that, in adopting it, [DHS] acted arbitrarily and capriciously.”

The DC Circuit found that DHS is authorized to extend employment authorization to H-4 spouses under 8 USC 1184(a)(1), INA 214(a)(1) (stating that “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…”) and 8 USC 1103(a)(3), INA 103(a)(3) (stating that the DHS Secretary “…shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.”). Moreover, the court held it had already “interpreted the relevant provisions of the INA to answer a similar question in favor of DHS in Washington Alliance of Technology Workers v. DHS, 50 F.4th 164 (D.C. Cir. 2022) (“Washtech”). As discussed in a prior blog, Washtech involved a challenge to the 24 month Optional Practical Training (OPT) extension for STEM graduates by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech further asserted INA § 101(a)(15)(F)(i) authorizes DHS to allow F-1 students to remain in the U.S. only until they have completed degree program, not to pursue post-graduation practical training. The DC Circuit upheld DHS’ STEM OPT rules, reasoning that the STEM OPT extension is a valid exercise of DHS’ authority under INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation, noting that practical training is critical to STEM students’ ability to apply skills learned during their degree programs once they return to their home countries. Judge Pillard, who authored the opinion, noted that the U.S. has long permitted foreign students to remain in the country for practical training, beginning with a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training was authorized even prior to the enactment of the INA in 1952.

Because Save Jobs USA did not meaningfully distinguish its case against H-4 work authorization from the precedent established in Washtech, the DC Circuit affirmed the district court’s grant of summary judgment in favor of DHS. Save Jobs USA argued that Washtech should be disregarded because it did not address the major questions doctrine established by the Supreme Court in West Virginia v. EPA, 597 U.S. 697, 716 (2022), which holds that courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” The DC Circuit gave short shrift to this argument, though, stating that the purpose of the major questions doctrine is a tool of statutory construction “to help courts figure out what a statute means”. Because Washtech had already interpreted the relevant regulations after West Virginia v. EPA, the court found that there was no need to overturn Save Jobs USA v. DHS as Washtech remained good law. Under stare decisis a future court lacks the authority to say a previous court was wrong about how it resolved the actual legal issue before it. As Washtech was decided after the major questions doctrine was established by the Supreme Court in West Virginia v. EPA, it was assumed that Washtech already considered it and there was no need to upset the Court’s holding in Save Jobs USA, which relied on Washtech.

Save Jobs USA v. DHS also represents one of the first instances of a federal court upholding a regulatory provision notwithstanding the demise of Chevron deference. In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine, which held that courts were required to defer to the government agency’s reasonable interpretation of an ambiguous statute. We have discussed Loper Bright at length in a previous blog. In footnote 2 in Save Jobs USA v. DHS, the DC Circuit stated that “Washtech did not depend on Chevron” because Washtech had applied Chevron as a “counter-factual, fallback argument”, but this did not alter Washtech’s holding that INA 214(a)(1) and INA 101(a)(3) were not ambiguous in the first place.

Save Jobs USA v. DHS affirms that courts can rely on direct authorization from DHS to promulgate regulation to issue employment authorization to noncitizens. Despite the evisceration of Chevron deference, courts need not rely on an agency’s interpretation of an INA provision in order to provide noncitizens with work authorization, such as the INA provisions that extend STEM OPT work authorization to F-1 students or provide work authorization to H-4 spouses, because these statutory provisions are not ambiguous in the first instance.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government

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By Cyrus D. Mehta and Kaitlyn Box*

On January 31, 2024, the Board of Immigration Appeals (BIA) issued a decision in Matter of Aguilar Hernandez.

Mr. Aguilar Hernandez, a noncitizen from Mexico, had been served a Notice to Appear (NTA) in 2019 that did not list the date and time of his individual hearing. He objected that this NTA was defective at both his individual hearing and moved to terminate the removal proceedings against him, but the Immigration Judge denied his motion. In October 2022, Mr. Aguilar Hernandez again moved to terminate the removal proceedings due to the defective NTA. The Department of Homeland Security objected, arguing that the IJ had the discretion to allow it to cure the defective NTA rather than terminating removal proceedings. DHS filed a Form I-261 containing the date and time of the next hearing, and also listing the date and time of the original hearing, and served this form on Mr. Aguilar Hernandez. Over Mr. Aguilar Hernandez’s objections, the IJ denied his motion to terminate once again, without issuing a decision concerning DHS’ submission of the Form I-261. Mr. Aguilar Hernandez then appealed to the BIA.

The BIA held that “DHS cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez.” In Niz-Chavez v. Garland, 593 U.S. 155, 160-62 (2021), the Supreme Court held that DHS cannot cure a defective NTA by issuing a hearing notice that contains the date and time of the initial hearing in removal proceedings. The BIA also cited to Pereira v. Sessions, 138 S. Ct. 2015 (2018), in which the Supreme Court held that the “stop-time rule” at INA 240A(d)(1) is not triggered by an NTA that does not contain the time and place of a hearing in removal proceedings. The BIA reasoned that “The plain text of 8 C.F.R. § 1003.30 does not support DHS’ argument, because it does not allow amendment of the date and time on the notice to appear by using a Form I-261. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (requiring agencies to follow the plain language of a regulation).” The BIA noted that the Supreme Court had held that INA 239(a)(1) requires one “single document” in Niz-Chavez, and rejected the idea that DHS could provide adequate notice by issuing multiple successive documents containing the relevant information. See Niz-Chavez, 593 U.S. at 160-61.

Matter of Aguilar Hernandez is a victory for noncitizens seeking to terminate removal proceedings on the basis of a defective NTA, but it is interesting for another reason, as well – it represents one of the rare instances in which the BIA has cited Kisor v. Wilkie. As prior blogs have noted (here, here, and here) Kisor v. Wilkie laid out a three-step test for how it would view an agency’s interpretation of its own  genuinely ambiguous regulation.. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.” In Kisor, the Supreme Court narrowed the previous standard set forth in Auer v. Robbins, which held that courts would give deference to an agency’s interpretation of its own ambiguous regulation.  In Aguilar Hernandez it does not appear that the BIA thought that 8 C.F.R. § 1003.30 was ambiguous, and so it did not even need to defer to the government’s interpretation of this regulation even under the narrower standard as set forth in Kisor v. Wilkie. The plain language of 8 C.F.R. § 1003.30 did not support an expansive reading that would allow the government to cure a defective NTA by amending it through the submission of an I-261. An I-261 under 8 C.F.R. § 1003.30 only allows the government to add or substitute charges in an NTA or to add or substitute factual allegations.

The requirement that the government interprets the plain meaning of the regulation is part of a trend. The “Auer deference” standard as modified by Kisor v. Wilkie is quite similar to “Chevron deference”, which holds that courts will give deference to a federal agency’s interpretation of an ambiguous federal statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). However, when a statute is not ambiguous, the court does not need to even rely on Chevron deference and can side step the analysis all together.  While requiring an agency to adhere to the plain meaning of a statute or regulation helped the respondent in Aguilar Hernandez, it may not always come to the aid of plaintiffs. For instance,  the DC Circuit Court of Appeals in Wang v. Blinken  held that it was clear that INA 203(d) required the counting of both the principal and derivative beneficiaries in the employment-based fifth preference. Indeed, the Court in Wang v. Blinken also rejected the government’s argument that it was entitled to Chevron deference in interpreting INA 203(d) by counting derivatives as INA 203(d) was not ambiguous in the first place.

Two upcoming Supreme Court cases –  Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo –  may narrow Chevron or even eviscerate it altogether. If the Supreme Court’s holdings in Relentless and Loper Bright deprive agencies of the ability to interpret ambiguous statutes without explicit Congressional authorization, it may result in both good and bad outcomes in the immigration context. According to the Think Immigration Blog: “For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or Board of Immigration Appeals decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.   However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.”

At present, courts also rely on the “major questions” doctrine in West Virginia v. EPA, 142 S. Ct. 2587 (2022) to side step Chevron deference even if a statute is ambiguous. Here the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance. The dissent in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”), for example, argued that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority was a “major question”. Similarly, in a footnote, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. The standard articulated in West Virginia v. EPA requires agencies to assert clear Congressional authorization when implementing a new policy of major significance, while Chevron imposes an almost opposite standard by saying that if the court cannot identify clear congressional authority disapproving what the agency proposes to do, the court should uphold the agency action if it is reasonable.  The Supreme Court’s decisions in Relentless and Loper Bright could help to resolve this discrepancy. If Chevron deference is eliminated, courts need not even need to go into the “major questions” doctrine.

Matter of Aguilar Hernandez gives us a taste of how courts will interpret INA provisions and regulations in a post Chevron world although it remains to be seen whether the end result will always be beneficial.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

A Tale of Two Cases – Washtech v. DHS and Texas v. USA: To What Extent can the Executive Branch Allow Noncitizens to Remain and Work in the US

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By Cyrus D. Mehta and Kaitlyn Box*

To what extent can the Executive Branch allow noncitizens to remain and work in the US when there is no explicit provision in the Immigration and Nationality Act (INA) covering these categories of noncitizens? Two courts of appeals have ruled differently in recent decisions. One court found authority while the other court did not. The D.C. Circuit addressed the question of F-1 students and whether they could remain in the U.S. after graduation for practical training. Citing DHS’ authority under INA § 214(a)(1) and the long history of post-graduation practical training, the court upheld OPT. The Fifth Circuit confronted a different issue – that of young people who came to the U.S. and whether they could remain in the country through deferred action. Finding that DACA exceeds DHS’ inherent authority to exercise prosecutorial discretion, the court struck down the program, though deferred action is a well-established practice like OPT.

On October 4, 2022, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”). The case involved a challenge to the STEM Optional Practical Training (OPT) rules by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In Texas v. U.S., decided on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful, upholding an earlier decision by Judge Andrew Hanen of the United States District Court for the Southern District of Texas. Although the practice of deferred action, of which the DACA program is a form, has also existed for decades, the Fifth Circuit’s decision was much less favorable than that of the D.C. Circuit. The court reasoned that the DACA program exceeds DHS’ inherent authority to exercise prosecutorial discretion, as “declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change”. Further, the court found that there is no “clear congressional authorization” for DACA. In light of a recent regulation promulgated by the Biden administration to “preserve and fortify” DACA, the case was remanded to the U.S. District Court for the Southern District of Texas. Although DACA lives for now, it remains on the respirator as both the district court and the Fifth Circuit have consistently held that DACA is not authorized by the INA, and notwithstanding the new regulation, may still be held to be unlawful.

Though the courts in these cases arrived at few different outcomes, the two decisions share at least one commonality – both made reference to the “major question” doctrine recently introduced in West Virginia v. EPA, 142 S. Ct. 2587 (2022). There the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance.  Interestingly, the dissent in Washtech indicated that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority is a “major question”. Finding that the major questions doctrine applied, the dissent in Washtech directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle.

In footnote 206, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement DACA. The court also held that DACA did not pass the first step of the Chevron test, which asks “whether Congress has ‘directly addressed the precise question at issue.’” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The court in Washtech analyzed the OPT rule under the lens of Chevron also, but gave DHS’ interpretation of INA § 214(a)(1) deference.

If the major questions doctrine is implemented in this way, it could result in fewer agency actions receiving Chevron deference. Chevron gives the Biden administration the ability to interpret the INA by implementing OPT and DACA programs, so it is hoped that the major questions doctrine does not impede the application of this longstanding precedent. Moreover, immigration decisions unlike environmental cases ought not to be cases involving vast economic and political significance.  The majority decision in Washtech involved challenges to the INA provisions that provide the authority for noncitizens to remain in the U.S. The court gave due deference under Chevron to the executive’s interpretation of INA § 214(a)(1) and upheld OPT. The majority did not reference the “major questions” doctrine in Virginia v. EPA.  The Fifth Circuit, on the other hand, held that  DHS cannot rely on INA § 103(a)(3) as a basis for implementing DACA, and cited Virginia v. EPA. This provision states that the DHS Secretary “shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of the Act.” This provision is comparable to INA § 214(a)(1), which the First Circuit held provided the basis for F-1 OPT. INA § 214(a)(1) provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…….”

Although the Washtech case dealt with students, the D.C. Circuit’s decision can serve as a template for the Supreme Court to uphold the authority for other categories of noncitizens to remain in the U.S., including DACA recipients. The same deference that the D.C. Circuit afforded to the executive’s authorization of OPT ought to also be given to the government’s interpretation of INA § 103(a)(3) and 6 USC § 202(5) so that the DACA program is upheld.

Another interesting issue discussed in both cases is whether the Executive Branch can issue work authorization to noncitizens. The court in Washtech upheld the authority of the executive to grant employment authorization documents (EADs) under INA § 274(a)(h)(3), which has long provided authority for the Executive Branch to provide employment authorization to broad categories of noncitizens. The executive’s authority to grant EADs under this provision had been soundly rejected by the Fifth Circuit in the earlier DAPA decision and Judge Hanen’s lower court decision in Texas v. U.S. In footnote 37, Hanen’s decision makes reference to INA §274a(h)(3) as a definitional miscellaneous provision, which cannot provide the basis for DACA and the grant of EADs, while the First Circuit relied on the same provision as a statutory basis for OPT EAD.

Charles Dickens opened his A Tale of Two Cities with the following famous line: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.” Like London and Paris in Dickens’ novel, Washtech and Texas are comparable in some respects and very different in others. Though Texas may represent the worst of times and the age of foolishness, Washtech ushers in an age of wisdom and the best of times for foreign students hoping to gain practical training in the U.S.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.