The Supreme Court turned away a legal challenge to an Obama-era immigration program that provides employment authorization to the spouses of H-1B visa holders.
The H-1B visa permits U.S. employers to hire foreign workers in specialty occupations. A specialty occupation is one that requires the application of specialized knowledge and a bachelor’s degree or the equivalent of work experience, according to the U.S. Department of Labor.
The Supreme Court’s decision leaves intact a March ruling by the U.S. District Court for the District of Columbia that dismissed a lawsuit filed by Save Jobs USA, which represents U.S.-born tech workers in California.
The group wanted to undo the employment authorizations for 90,000 holders of H-4 visas, which are given to the spouses and dependent children of temporary workers such as those with H-1B visas.
The Supreme Court on Oct. 30 turned away the petition for certiorari, or review, in an unsigned order in Save Jobs USA v. Department of Homeland Security (DHS), court file 23–22. The court provided no reasons for its decision. No justices dissented. At least four of the nine justices have to vote in favor of a petition for it to move forward to the oral argument stage.
The court noted that Justice Brett Kavanaugh didn’t participate in the consideration or decision of this petition.
The Immigration Reform Law Institute (IRLI), which represents Save Jobs, argued in its petition that the law governing the department’s ability to issue permits allowing the employment of “aliens who hold H-4 visas as accompanying spouses of certain H-1B guestworkers” was unclear.
“The statutory terms for the H-4 visa do not mention employment. When there is total silence on employment in a visa’s terms, does that confer on DHS the discretion to permit employment?” the petition reads.
The issue of what authority an agency has to regulate in the absence of clear congressional authority is already before the Supreme Court in the current term. The court will hear two similar cases, Loper Bright Enterprises v. Raimondo (court file 22-451) and Relentless Inc. v. Department of Commerce (court file 22-1219), in January 2024. Both cases deal with a federal rule forcing fishing companies to pay for at-sea government monitoring of their catch. The companies say the rule is an example of bureaucratic overreach.
At issue in the two fishing company cases is the so-called Chevron deference doctrine that the Supreme Court enunciated in 1984. In the landmark ruling in Chevron v. Natural Resources Defense Council, the nation’s highest court held that while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find that “Congress has not directly addressed the precise question at issue” and that “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
In other words, Chevron stands for the proposition that an executive agency’s interpretation of a statute it administers is entitled to deference unless Congress has said otherwise.
Conservatives and Republican policymakers have long been critical of the doctrine, saying it gives unelected regulators far too much power to make policy by going beyond what Congress intended when it approved various laws. The authority of regulatory agencies has been increasingly questioned in recent years as the conservative majority on the Supreme Court has grown. Conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have expressed skepticism about the Chevron doctrine.
Those on the other side say the Chevron doctrine empowers an activist federal government to serve the public interest without having to seek specific congressional authorization for everything it wants to do.
IRLI argued in the petition that even if the Chevron doctrine were to be reversed, the H-1B visa issue wouldn’t be fully resolved.
“The problem of agencies’ regulating without implementing statutory terms, with the full blessing of federal courts, extends beyond Chevron, and simply reversing Chevron will not provide a comprehensive solution,” the petition reads.
In a brief filed on Sept. 20, U.S. Solicitor General Elizabeth Prelogar urged the Supreme Court to deny the petition.
The Save Jobs group, which is “an advocacy association formed by ‘former technology workers at Southern California Edison’ who allege that they ‘lost their jobs and were replaced by’ H-1B workers,” lacks legal standing to challenge the rule, she wrote.
The district court correctly held that the DHS had the authority under the Immigration and Nationality Act to authorize work visas for the spouses of H-1B visa holders, she said.
Christopher Hajec, IRLI’s director of litigation, expressed disappointment in the new ruling.
“In the eternal war between labor and capital, the Court just chose capital—at a huge cost to Americans’ jobs. As we pointed out in our petition, at least half of the new jobs we create in this country go to aliens under these illegal DHS programs,” he said.
“That is unacceptable, and we will not stop trying to bring these programs down, and make our immigration system accountable to the people.”
Officials at the U.S. Department of Justice didn’t respond by press time to a request by The Epoch Times for comment.
