[00:00:00] Speaker 03: The first appeal is docket number 23-1052, ITServe Alliance versus the United States. [00:00:08] Speaker 03: Mr. Fanias, you've reserved four minutes, right? [00:00:12] Speaker 02: Yes, sir. [00:00:12] Speaker 04: Please begin whenever you're ready. [00:00:15] Speaker 04: Thank you, Honors, and may it please the Court. [00:00:16] Speaker 04: My name is Brad Bannas. [00:00:17] Speaker 04: I represent the appellants in this case. [00:00:22] Speaker 04: Congress intended to exact the enhanced board security fee on certain H-1B employers. [00:00:28] Speaker 04: and in certain applications from certain H-1B employers. [00:00:31] Speaker 04: It limited those to those filing applications on behalf of beneficiaries who would seek admission with the United States, not those that were already here and would not seek admission, not use the border. [00:00:41] Speaker 04: It's no surprise that Congress would seek to raise funds for border security from employers that used the border. [00:00:49] Speaker 04: And because the tech structure and history reinforces that and reinforces that interpretation, this court should reverse the lower court's decision and remand it for further proceedings on damages. [00:00:58] Speaker 04: The text of the statutes in question here both include one key phrase. [00:01:05] Speaker 04: That key phrase is an application for admission. [00:01:11] Speaker 04: Admission is a bedrock principle in immigration law. [00:01:14] Speaker 04: The definition of application for admission made its first appearance in 1952 in the Immigration and Nationality Act, which the government still works off of, was implemented. [00:01:23] Speaker 04: Admission is the concept that someone from outside the United States appears at a port of entry [00:01:28] Speaker 04: presents an application for admission and is inspected and admitted into that status. [00:01:34] Speaker 03: But as I understand your argument, you yourself are not asking for a literal insertion of the statutory definition for application for admission into these public laws. [00:01:47] Speaker 03: Is that right? [00:01:48] Speaker 04: Your Honor, we are looking for credence to the definition of the word admission. [00:01:52] Speaker 03: But let me make sure I understand you and you understand me. [00:01:58] Speaker 03: Am I being correct when I'm saying that you are not seeking a literal insertion of the statutory definition into these two public laws? [00:02:09] Speaker 04: I think we are, but I want to explain. [00:02:11] Speaker 03: Because if you are, then we are [00:02:15] Speaker 03: left with the temporal disconnect the claims court observed. [00:02:24] Speaker 03: paying these filing fees or fraud fees at the time a foreign national is at a port of entry seeking to physically enter the United States. [00:02:33] Speaker 03: I think we agree with that, right? [00:02:35] Speaker 04: I agree with that, Your Honor, but that's the consequence of the agency's unlawful interpretation. [00:02:39] Speaker 04: I would point you to their regulation. [00:02:41] Speaker 04: There was a final regulation in 2020 before it was set aside for procedural problems. [00:02:45] Speaker 04: where the agency addressing this fee specifically said the statutory text refers to, among other things, an increase in H-1B and fraud prevention detection fees. [00:02:54] Speaker 04: Such fees are typically collected by DHS either upon USCIS upon filing or CBP for certain visa-exempt non-immigrants. [00:03:02] Speaker 03: The statutory text clearly shows that Congress intended DHS... I'm getting lost right now because as I understood your argument in your briefing, it was [00:03:13] Speaker 03: an acknowledgement that a literal insertion of the statutory definition doesn't quite make sense. [00:03:18] Speaker 03: And so the best way to deal with this uncomfortable situation is to try to think more broadly about what application for admission means into these two statutes. [00:03:29] Speaker 03: And the way to do that is to think about application for admission to actually mean all of the elements that go into [00:03:36] Speaker 03: what ultimately becomes an application for admission by a foreign national, which would include the initial petition for the initial grant of an H-1B for a foreign national that is located outside of the United States that's trying to enter into the United States. [00:03:53] Speaker 03: Is that an incorrect or correct understanding of what you argued in your brief? [00:03:58] Speaker 04: I think in our brief we argued two alternatives. [00:04:01] Speaker 04: One was the definition of it at 1101A4, which is the definition of application for admission. [00:04:09] Speaker 04: We also argued for 1101A13A, which is the definition of admission. [00:04:15] Speaker 03: Are you saying that what I summarized is not in your briefing? [00:04:20] Speaker 04: I think it is, but I think both of those are in our briefing, that we suggested that the word admission [00:04:26] Speaker 04: whether it's in the definition of application for admission or specifically the definition for admission has to be given credence. [00:04:32] Speaker 04: And the lower court wrote that definition out of the statute. [00:04:35] Speaker 04: I would also point you to page 128 of the record, because I think this clarifies specifically this issue. [00:04:41] Speaker 04: That's going to be the part of form I-129, OK, where [00:04:46] Speaker 04: The employer chooses two boxes, two different things. [00:04:51] Speaker 04: One is whether it's a new employment, whether it's an extension. [00:04:55] Speaker 03: We understand form I-129, and there's two different boxes. [00:04:58] Speaker 03: I don't, at the moment, understand how one could literally use the statutory definition and plug it into these two public laws and put it to make sense. [00:05:08] Speaker 03: Sure, Your Honor. [00:05:08] Speaker 03: Can you explain that? [00:05:09] Speaker 04: I can. [00:05:10] Speaker 04: When an employer files a form I-129, they check one of two boxes under parked [00:05:15] Speaker 04: Question three of part two of page two of that form. [00:05:18] Speaker 04: One of them seeks an application for admission. [00:05:20] Speaker 04: One of them seeks a change of status. [00:05:22] Speaker 04: When they check the top box, the fee is not due. [00:05:24] Speaker 04: When they check the bottom box, the fee is due. [00:05:26] Speaker 00: Counsel, can I ask you a question about the 2015 [00:05:31] Speaker 00: law, it's public law, 111-230, there, why shouldn't I understand that when it says an application for admission as a non-immigrant, including an application for an extension, that that language would make it so that term, application for admission, is not as limited as you suggest? [00:05:52] Speaker 00: Because it also, according to the statute, using the word includes, including an application for an extension. [00:06:00] Speaker 00: And a person who would have an application for an extension would be somebody who would already be in the United States. [00:06:06] Speaker 04: The government certainly argues that, and it's incorrect. [00:06:08] Speaker 04: Why? [00:06:09] Speaker 04: You can seek an extension for someone who's outside of the United States. [00:06:12] Speaker 04: I would point you again to page 128 of the record. [00:06:15] Speaker 04: The top box asks, what's the basis for your H-1B? [00:06:18] Speaker 04: A continuation of employment with the same employer? [00:06:21] Speaker 04: That would be an extension. [00:06:22] Speaker 04: The second part asks, do you want that person to pick up the visa outside of the country and seek admission, or are they already inside of the country? [00:06:29] Speaker 00: You're saying because Steve, when it talks about extend stay, doesn't say now in the United States that I should interpret that differently? [00:06:37] Speaker 04: It uses the term admission. [00:06:38] Speaker 04: It doesn't need to say now in the United States. [00:06:40] Speaker 00: It actually says extend the stay of each beneficiary because the beneficiaries now holds this status. [00:06:46] Speaker 04: Your Honor, again, it doesn't eliminate application for admission. [00:06:50] Speaker 04: And the extension and the requested action versus the basis for the application are two totally different things. [00:06:57] Speaker 00: I'm just trying to understand, like, does the person have to be in the United States or not? [00:07:02] Speaker 00: And you're saying that they... [00:07:05] Speaker 00: should not be in the United States. [00:07:06] Speaker 00: The fee should be limited to somebody who's outside the United States, even if it applies to someone who's extending their stay in the United States. [00:07:14] Speaker 04: No, Your Honor. [00:07:15] Speaker 04: Let me give an example. [00:07:16] Speaker 04: Let's say employer A hires a non-immigrant. [00:07:19] Speaker 04: They enter the United States. [00:07:21] Speaker 04: They stay for three years. [00:07:22] Speaker 04: That's the duration of the first grant from H-1B status. [00:07:25] Speaker 04: At the end of those three years, they leave. [00:07:27] Speaker 04: They go back to their country of nationality and they maybe work for the same company, maybe work for a different company. [00:07:32] Speaker 04: Then the employer wants to rehire that same employee. [00:07:35] Speaker 04: They would not be asking for new employment. [00:07:38] Speaker 04: They would not be asking for, they would be asking for an extension. [00:07:41] Speaker 04: That person would be outside the United States. [00:07:43] Speaker 04: They would check box. [00:07:45] Speaker 04: let's see, B on part two, question two, and they would check box A on part two, question four. [00:07:55] Speaker 04: And so in that way, they would seek an extension for someone outside of the country. [00:07:58] Speaker 01: This is a very common scenario. [00:08:00] Speaker 01: Do you agree that there's sometimes synonymous use of admission and status in the immigration context? [00:08:05] Speaker 04: I'm sorry, Your Honor. [00:08:06] Speaker 01: Do you agree there's sometimes synonymous use of admission and status in the immigration context? [00:08:11] Speaker 04: No, I do not. [00:08:13] Speaker 04: As I teach my immigration class, status is a visa plus admission equals status. [00:08:19] Speaker 04: Saying status and admission are equal is like saying everyone who's driving a car has a driver's license. [00:08:24] Speaker 03: Well, what does it mean when the statute, the 2015 one, refers to an application for an extension of such status? [00:08:32] Speaker 03: How do you translate that? [00:08:34] Speaker 04: Such status as H1B and an application for an extension means they're not doing a new employer. [00:08:39] Speaker 03: Well, what I'm asking is, is that an extension petition? [00:08:43] Speaker 04: Yes, Your Honor. [00:08:44] Speaker 03: Okay, so it doesn't say extension petitions, it says application for an extension. [00:08:49] Speaker 03: Correct, Your Honor. [00:08:50] Speaker 00: They're not going to a new employer and they're also not changing their position in any way or the things that qualify them to be an H-1B applicant, right? [00:09:00] Speaker 01: That's right, Your Honor. [00:09:01] Speaker 00: I mean, because somebody could be working for the same company if they get a, if something changes [00:09:06] Speaker 00: with their position title or something like that, they might have to reapply, correct? [00:09:12] Speaker 04: Well, yes. [00:09:14] Speaker 04: However, the H1B system is a lottery system. [00:09:17] Speaker 04: Last year, 400,000 people applied for 85,000 positions. [00:09:21] Speaker 04: So getting that initial cap H1B is incredibly important. [00:09:25] Speaker 04: You only have to get it once. [00:09:26] Speaker 00: So once you get it, if you were working for- But that's not- I hear what you're saying. [00:09:31] Speaker 00: I don't know that that answers my question so much. [00:09:34] Speaker 00: I'm just trying to really wrap my head around your assertion that when it talks about including an application for an extension, that I'm supposed to understand that to only be an application for an extension for somebody who's [00:09:49] Speaker 00: outside the United States. [00:09:51] Speaker 04: Your Honor, I think it applies to both. [00:09:53] Speaker 04: However, the fee only applies when the employer marks box A on part two, question four, of the form. [00:10:02] Speaker 04: That indicates the employer is seeking a beneficiary so they can obtain a visa or be admitted. [00:10:08] Speaker 00: And your view of that is because of the words application for admission. [00:10:12] Speaker 04: Correct, Your Honor. [00:10:13] Speaker 04: That has not changed from 2010 to 2015. [00:10:16] Speaker 04: And again, if we look at the 2015 law. [00:10:18] Speaker 00: Well, except that now there's a statute that says an application for admission includes an application for an extension. [00:10:23] Speaker 04: And if you read the regulatory filings, what they said was they didn't make enough money off of just charging on new applications and changes of employer. [00:10:31] Speaker 04: So they wanted to make clear to the agency that they could charge it on extensions. [00:10:37] Speaker 04: It's not a clarification. [00:10:38] Speaker 00: But it doesn't say charging it for extensions only where somebody is outside of the United States. [00:10:43] Speaker 04: It doesn't have to because it says application for admission. [00:10:46] Speaker 03: But why would Congress care about cleaving applications for extensions into two categories? [00:10:54] Speaker 03: One, where the extension is for someone that's already in the United States under an H-1B status, and then those that are also under an H-1B status but happen for the moment to be located outside the United States. [00:11:08] Speaker 03: It doesn't make any sense. [00:11:10] Speaker 04: Your Honor, they only ever intended this charge to people who are outside the United States seeking admission. [00:11:15] Speaker 03: This isn't the truth. [00:11:17] Speaker 03: The question is, you're saying that this application for an extension of such status, that only applies to extension petitions for foreign nationals that have the H-1B status that happen to be located outside the United States that are trying to physically re-enter the United States. [00:11:35] Speaker 03: And I'm trying to figure out why would Congress make that choice to cut up the category of people looking to do extension petitions into people that are located outside the United States and people located inside the United States. [00:11:51] Speaker 04: I think because they did not get rid of the words application for admission, by adding that dependent clause, it doesn't broaden it to people inside the United States. [00:12:03] Speaker 03: I guess the point I'm trying to make is, [00:12:05] Speaker 03: Your position is urging an outcome that I don't see a reason for, and I'm looking for a reason. [00:12:14] Speaker 00: Like policy? [00:12:15] Speaker 00: Like why would they do that? [00:12:18] Speaker 04: Your Honor, I... [00:12:20] Speaker 04: The legislative history is limited to one floor statement from Senator Schumer. [00:12:24] Speaker 04: He indicates that the whole reason for this fee is this is 2010. [00:12:29] Speaker 04: Let's go back to 2010. [00:12:30] Speaker 04: The Tea Party Republicans are in. [00:12:32] Speaker 04: They want border security, but they don't want to pay for it. [00:12:34] Speaker 00: Actually, it's 2015, too. [00:12:36] Speaker 04: Well, it started in 2010, Your Honor. [00:12:37] Speaker 04: We don't have legislative history from 2015, admittedly. [00:12:40] Speaker 04: Again, very limited. [00:12:41] Speaker 04: The district court, or excuse me, the lower court noted that. [00:12:43] Speaker 04: But what we see is Senator Schumer trying to find a way to pay for the additional enhanced border security that apparently everyone wants in 2010. [00:12:51] Speaker 04: And he does this by targeting H-1B folks, and he says it's intended to offset the border security costs, but we don't want to charge it to the, quote, good H-1B employers who hire college graduates from U.S. [00:13:03] Speaker 04: colleges. [00:13:05] Speaker 04: have them create new things, and then apply for a green card for them. [00:13:08] Speaker 04: We want to charge on the quote, bad H-1B employers, that's in Senator Schumer's eyes, that bring in cheap temporary labor and bring them in, send them out. [00:13:17] Speaker 04: Bring them in, send them out. [00:13:19] Speaker 04: And so they're trying to target H-1B employers who use the border. [00:13:23] Speaker 04: I would also note that in the 2015, the best legislative history we have from 2015, is that Congress, in the same act, public law 114, 113, [00:13:33] Speaker 04: uses the term admission, application for admission, applies for admission, applicant for admission, and the word admitted, that's 17 times between the different terms, all in reference to someone at a port of entry seeking physical entry into the United States. [00:13:48] Speaker 04: That's significant. [00:13:50] Speaker 04: And again, I'm not pointing to other uses of that admission within the Immigration Nationality Act, but the actual implementing public law here. [00:13:58] Speaker 03: Mr. Bernas, you're in? [00:13:59] Speaker 03: Oh, do you have a question? [00:14:00] Speaker 03: Thank you. [00:14:00] Speaker 01: Given the current legal landscape, what, if anything, do you contend would be the relevance of the fact that the agency has a history of collecting increased fees on all form I-29? [00:14:11] Speaker 04: Nothing. [00:14:12] Speaker 04: It's an illegal exaction, Your Honor. [00:14:14] Speaker 04: They never went and engaged in notice and comment rulemaking. [00:14:16] Speaker 04: And so even under the prior Chevron regime, their interpretations would have carried no weight. [00:14:22] Speaker 04: And I don't think they carry Skidmore deference here, because they're simply not persuasive. [00:14:25] Speaker 04: It's very clear when you look at the form that was in place 15 years ago when this was implemented, [00:14:30] Speaker 04: They ignored, they based everything in their interpretation on that top section of the form, not the second section. [00:14:36] Speaker 04: Congress wanted to protect the border. [00:14:38] Speaker 00: Can you explain that more specifically? [00:14:40] Speaker 04: Yes, Your Honor. [00:14:41] Speaker 04: Again, on page 128 of the record. [00:14:43] Speaker 04: And again, immigration is a form-driven practice. [00:14:46] Speaker 04: Immigration litigation is a sub, sub, sub specialty, which is probably why the court doesn't hear much of it. [00:14:54] Speaker 04: But for employers, they look at the form. [00:14:57] Speaker 04: Their attorneys say, OK. [00:14:59] Speaker 04: Is this a new employment? [00:15:00] Speaker 04: Then check this box in part two. [00:15:02] Speaker 04: And if you notice, the agency's interpretations all relate to that part two question two, whether they charge on new employment, change of employers, or extensions. [00:15:12] Speaker 04: It wholly ignores question four, where A or B is, is this seeking admission, or is this a change of status? [00:15:19] Speaker 04: Thank you, Anders. [00:15:20] Speaker 04: OK. [00:15:20] Speaker 04: We will reserve the remainder. [00:15:24] Speaker 03: Might probably add a couple minutes. [00:15:25] Speaker 03: We'll see. [00:15:26] Speaker 04: Thank you, Anders. [00:15:35] Speaker 02: May it please the court. [00:15:36] Speaker 02: The public laws at issue here authorize USCIS to collect this increased fraud fee on all the petitions, including change of status that are otherwise subject to the fraud fee. [00:15:45] Speaker 02: The fraud fee is at 8 USC 1184. [00:15:48] Speaker 02: The United States interpretation harmonizes all the text within context, puts everything in place, and gives us sort of a symmetrical hole between the increased fraud fee and the fraud fee. [00:16:00] Speaker 02: Because what is clear, the purpose of this statute, the public laws at issue, [00:16:04] Speaker 02: is to increase the already extant fraud fee. [00:16:07] Speaker 02: So getting to your honor's question, whether a little insertion of the phrase application for admission can occur here, it cannot. [00:16:14] Speaker 02: We've demonstrated how that doesn't work. [00:16:16] Speaker 02: Because literally inserting the defined phrase talking about a non-immigrant appearing at the border leads to the result where, as your honor said, the fee is not paid because there's no dispute in this case [00:16:28] Speaker 02: that the process, the underlying institutional setting, is the petition process whereby the employers are actually filing the petitions on Form I-129 seeking H-1B status for their non-immigrant employees, after which then some of the non-immigrant employees can come into the country if they're outside, or non-immigrant employees specifically in change of status. [00:16:49] Speaker 01: So Counsel, in your view, is there a way to both apply the statutory definition of application for admission while still finding your favor? [00:16:57] Speaker 01: I think your answer is no, but. [00:16:59] Speaker 02: Our answer is no, Your Honor, because this is a scenario in which the court need not resort to the defined phrase. [00:17:05] Speaker 02: As we've stated, and the Swanee case explains this, that when use of a defined phrase leads to an incongruous or absurd result, the court need not actually apply it. [00:17:15] Speaker 00: What if you inserted the definition into the phrase, [00:17:20] Speaker 00: But then you said it also includes these other types of, I think it's an extension, which then would make it so that it can't just be outside, you know, folks that are coming in from outside the US. [00:17:34] Speaker 00: Is that at all possible? [00:17:36] Speaker 02: From the government's perspective, Your Honor, no, because it leads to an odd result whereby, and the court has expressed, there is no longer this line of demarcation between physical location. [00:17:46] Speaker 02: So if the court is to use the defined phrase, you have to include a qualifier before the first clause there. [00:17:52] Speaker 02: And we've demonstrated this, I think, on page 36 of our brief where we've substituted those. [00:17:57] Speaker 02: So the statute would have to read in this, the 2015 version, the combined filing fee and fraud and prevention detection fee [00:18:05] Speaker 02: required to be submitted. [00:18:07] Speaker 02: And here we would have to include something in connection with or corresponding with a petition involving an application for admission. [00:18:17] Speaker 02: That's the physical entry piece. [00:18:19] Speaker 02: Then the court could use it. [00:18:20] Speaker 02: But we're still in the sphere where we then have application doing double duty in the same sentence here. [00:18:27] Speaker 02: Whereas Your Honors have pointed out, in the second clause added in 2015, and I believe Appellant's Council has conceded this, [00:18:34] Speaker 02: That use of application has to mean petition. [00:18:37] Speaker 02: So we then end up with a further incongruity where the same word in the same sentence is meaning two different things. [00:18:44] Speaker 02: This is the reason why the United States has said our interpretation is the best reading of this, because what it does is it applies the fraud fee, which is already extant and has defined various petitions to which it applies. [00:18:55] Speaker 02: And so this increase to the fraud fee [00:18:57] Speaker 02: should apply in the same situation as the fraud fee applies. [00:18:59] Speaker 00: Is it your view that we shouldn't be looking at the words, an application for admission, stop, full stop. [00:19:05] Speaker 00: Instead, we should look at, an application for admission is a non-immigrant under Section 101, blah, blah, blah, of the Immigration Nationality Act. [00:19:13] Speaker 00: Like, that whole phrase is something that should be considered as a whole. [00:19:18] Speaker 02: Yes, Your Honor, because the defined phrase doesn't work here because it's talking about the non-immigrant. [00:19:22] Speaker 02: As we've explained, petition and application can be used interchangeably. [00:19:26] Speaker 02: And as the Court has already noted, in some instances, status and admission can be synonymous. [00:19:32] Speaker 02: So if we use these two understandings, then as Your Honor has just pointed out, that whole phrase makes logical sense. [00:19:37] Speaker 02: We're talking about a petition for status as an H-1 date. [00:19:40] Speaker 02: And that, if we use that defined phrase, harmonizes the text here, because what this is doing is increasing the filing fee and fraud fee required to be submitted. [00:19:49] Speaker 02: And that's a key phrase required to be submitted with that petition for H-1B status. [00:19:55] Speaker 02: And if we go to it's 8 USC 1184, the fraud fee is required to be submitted in a number of scenarios. [00:20:02] Speaker 02: It's required to be submitted first for an initial grant of status. [00:20:06] Speaker 02: An initial grant of status can include a non-immigrant who is outside of the United States, as well as a non-immigrant who's going to have a change of status, say someone who is here on a student visa or something else, and then gets an initial grant of H-1B. [00:20:19] Speaker 02: So there's someone who's here, but this is the first time they're getting it. [00:20:22] Speaker 02: The fraud fee also expressly includes [00:20:25] Speaker 02: under its purview of the universe of petitions, the change of employer. [00:20:29] Speaker 02: Change of employer, then, is someone who is currently in the United States. [00:20:33] Speaker 02: So we see that the fraud fee itself makes no distinction between the location of the person. [00:20:39] Speaker 02: They can be outside or inside. [00:20:41] Speaker 02: If the statute here is increasing that fraud fee, it's more reasonable to say that the increased fraud fee applies to the same universe of petitions. [00:20:49] Speaker 02: As we've stated, Your Honor, in 2015, when Congress reauthorized this and included that additional clause that, at a minimum, clarifies and potentially expands even further. [00:20:59] Speaker 02: And I note for the Court, we have cited that there was a proposed rulemaking that was enjoined. [00:21:04] Speaker 02: I have been made aware recently there is a new proposed rulemaking that was issued. [00:21:08] Speaker 02: And I have to cite for the Court. [00:21:09] Speaker 02: I can give you 89. [00:21:13] Speaker 02: FEDREG 48339.01. [00:21:14] Speaker 02: We recently learned about this, Your Honor. [00:21:18] Speaker 02: It was, I think, June 6th or 8th. [00:21:21] Speaker 02: It was issued where it stands after the court's recent Loper. [00:21:24] Speaker 02: A bright decision remains to be seen. [00:21:26] Speaker 02: But in there, USCIS has said that at a minimum, that additional clause, which is talking about petitions for extensions of status, for people who are already here, [00:21:36] Speaker 02: It's currently only applied when that petition for an extension also includes a situation where the fraud fee would otherwise apply, a change of employer. [00:21:45] Speaker 02: But the proposed rulemaking is saying maybe it's broader than that. [00:21:49] Speaker 02: Maybe it includes all petitions. [00:21:51] Speaker 02: And I think this gets to your honor's question of, has Congress created some sort of distinction with this extension petition language, making it a little sort of line of demarcation here between people who are inside or out. [00:22:05] Speaker 02: But getting back to your honor. [00:22:06] Speaker 02: To your honest, bigger point, the government's interpretation of the statute resolves that temporal disconnect that comes from the literal insertion of the phrase, application for admission, into the text of the statute. [00:22:19] Speaker 00: How do you respond to the argument that Mr. Benias is making regarding the form itself at page A128 and focusing on part two of the form? [00:22:34] Speaker 02: Your Honor, our specific point is that the statutory text itself explains what it's supposed to apply to. [00:22:39] Speaker 02: Whether different boxes can be checked in the forms is just an indication of how you would actually submit the petition. [00:22:46] Speaker 02: You'd make the petition as the employer to get various different types of non-immigrants the status that they want. [00:22:53] Speaker 02: Is there a particular question the court is [00:22:56] Speaker 02: I just didn't know if you wanted to give us a response to that. [00:23:00] Speaker 02: It's merely one of the procedure going through. [00:23:05] Speaker 02: The forms and the explanations and the instructions all explain when USCIS is applying this increased fraud fee. [00:23:12] Speaker 02: And it's in the same situations where the fraud fee applies. [00:23:15] Speaker 02: So regardless of what boxes you're checking, if the fraud fee would apply based on the boxes you've checked, then the increased fraud fee should apply as well. [00:23:23] Speaker 02: So from the government's perspective, there's nothing that sort of magical, I guess, comes out of the form itself. [00:23:32] Speaker 02: The form is merely USCIS implementing its understanding of the statute and when the fees apply. [00:23:39] Speaker 01: Isn't alleged temporal disconnect the only kind of goatee that you're finding when we apply that definition of application for admission? [00:23:49] Speaker 02: So it wouldn't be, Your Honor, because if then [00:23:53] Speaker 02: the phrase application for admission is used, we have an incongruity between when the fraud fee is applied, and I'm going to focus on sort of four petitions where that applies, and then the increased fraud fee is only applying to a subset of that. [00:24:06] Speaker 02: So the incongruity is that we now have what is understood to be an increase to the fraud fee, not applying in all the situations where the fraud fee applies. [00:24:14] Speaker 02: So aside from the temporal disconnect, [00:24:16] Speaker 02: in that neither of these fees are paid or submitted by the non-immigrant at the port of entry. [00:24:23] Speaker 02: We also have a scenario where Congress is now levying a fraud fee and saying we're increasing the fraud fee, but only on a subset. [00:24:31] Speaker 02: But that subset doesn't just include, as the court has pointed out, doesn't include people who are outside of the United States. [00:24:38] Speaker 02: But the extension of such status would deal with non-immigrants who are here. [00:24:42] Speaker 02: And there may be limited circumstances where a non-immigrant may be [00:24:46] Speaker 02: have left the country and come back, an extension petition applies. [00:24:49] Speaker 02: But as USCIS is applying it, the extension petitions are for people who are here. [00:24:54] Speaker 02: So we have the temporal disconnect. [00:24:57] Speaker 02: It's not being collected when it's actually happening. [00:24:59] Speaker 02: We also have sort of a lack of harmony between the fraud fee statute itself and the increase. [00:25:09] Speaker 02: So and a couple other points, Your Honors. [00:25:11] Speaker 02: There is an argument that the United States interpretation [00:25:15] Speaker 02: is conflating admission and status. [00:25:17] Speaker 02: And for the reasons we've explained, that's not. [00:25:19] Speaker 02: There are some Board of Immigration Appeals cases which have said, in some scenarios, admission and status are the same. [00:25:25] Speaker 02: And I believe Palance has cited to the Eighth Circuit case. [00:25:29] Speaker 02: And I think this may be 757, F-3880, Your Honors. [00:25:34] Speaker 02: In there, there's a discussion of BAA considering [00:25:38] Speaker 02: that an adjustment of status is sometimes considered a proxy. [00:25:41] Speaker 02: The change of status petition would be somewhat analogous to that scenario, when maybe not directly appointed as analogous, because it is a change of status. [00:25:51] Speaker 02: If that's a proxy for a readmission, I think the analysis replies to it if the court is to determine that this case is applicable. [00:26:00] Speaker 03: Is it your view that, for us to affirm here, [00:26:04] Speaker 03: we would have to, in an opinion, acknowledge or point out that Congress just made a mistake. [00:26:10] Speaker 03: It goofed when it used the term application for admission, when it really meant petition for H1B status. [00:26:20] Speaker 02: I don't think the Court would have to find that Congress goofed, Your Honor. [00:26:23] Speaker 02: I think the Court, in interpreting the statute, if it determines that there is, as we've stated in our brief, a literal ambiguity [00:26:31] Speaker 02: by a literal insertion of that would have to say that the defined phrase doesn't work here. [00:26:36] Speaker 02: This is a scenario where it doesn't work. [00:26:38] Speaker 02: And the court then resorts, not necessarily finding a goof, but resorts to other understandings of those words to resolve what is an ambiguity from a literal insertion of that term. [00:26:49] Speaker 02: So in direct response, I don't believe to affirm the trial court's determination there's no legal exaction. [00:26:54] Speaker 02: The court has to find a congress goofed in this situation. [00:27:03] Speaker 02: And with that, Your Honors, if the court would like us to discuss if we did file our 28-J letter recognizing Loper-Brite while it was mentioned by appellants, if the court would find that there is some sort of ambiguity that has been resolved, Skidmore deference may still be available. [00:27:19] Speaker 02: It wasn't expressly [00:27:21] Speaker 02: asserted in our briefing. [00:27:23] Speaker 02: We could certainly provide the court any additional briefing it would like. [00:27:26] Speaker 02: But Skidmore deference being what it is, the agency's expertise is something the court can rely on. [00:27:32] Speaker 02: And here, because USCIS is the one agency lawfully charged with the immigration laws, its expertise carries some weight. [00:27:39] Speaker 02: The court can afford it whatever weight it chooses. [00:27:43] Speaker 02: Skidmore is not gone. [00:27:45] Speaker 02: Skidmore, through U.S. [00:27:47] Speaker 02: versus Mead in 2001, and in Lowe-Brite, still exists. [00:27:50] Speaker 02: So if the court would find an ambiguity that hasn't been resolved, Skidmore Deference may be available. [00:27:57] Speaker 02: With that, Your Honors, if the court has any other questions, I think we've. [00:28:04] Speaker 03: OK. [00:28:05] Speaker 03: Thanks very much, Mr. Phillips. [00:28:10] Speaker 03: Let's give Mr. Banius two minutes. [00:28:14] Speaker 04: Thank you, Your Honor. [00:28:15] Speaker 04: I requested four, but I will limit it to two. [00:28:18] Speaker 04: You used it all up, so just go ahead with two minutes. [00:28:21] Speaker 04: Thank you, Your Honor. [00:28:23] Speaker 04: As my colleague noted, the fraud fee has another statute. [00:28:26] Speaker 04: The fraud fee is not limited to applications for admission, period. [00:28:30] Speaker 04: That's a significant difference. [00:28:32] Speaker 04: My colleague noted that this only applies to a subset of applications where the fraud fee is applicable. [00:28:37] Speaker 04: And that subset is defined by Congress as an application for admission. [00:28:40] Speaker 04: The idea that this court would redefine 75 years of immigration law and say admission here means status would undermine fundamental principles of immigration law. [00:28:50] Speaker 04: It would, whether you are admitted or not, dictates whether you are subject to deportability grounds at 8 USC 1227 versus inadmissibility grounds of 1182. [00:28:58] Speaker 04: It determines whether all sorts of immigration consequences come from this argument that admission equals status. [00:29:06] Speaker 04: The Board of Immigration Appeals decisions refer to it in dicta for immigrants, not non-immigrants. [00:29:12] Speaker 04: This idea that change of status and adjustment of status are the same benefit is completely wrong. [00:29:17] Speaker 04: One is controlled by 8 U.S.C. [00:29:19] Speaker 04: 1255A, the other is controlled by 8 U.S.C. [00:29:22] Speaker 04: 1258. [00:29:22] Speaker 04: 1258 requires admission to change your status. [00:29:27] Speaker 04: Again, it's like saying everyone driving a car has a driver's license. [00:29:30] Speaker 04: It proves too much. [00:29:32] Speaker 04: And finally, the most straightforward reading of this is from page 128. [00:29:36] Speaker 04: The regulated community in 2010 would have read this to understand that when the employers who meet certain criteria, 50 employees, 50% of which are H1B or L1A, [00:29:47] Speaker 04: choose to have the beneficiaries seek admission from outside of the country, they would have to pay this fee because that is, in this sense, an application for admission that the employer signed, and that's what the form claims to be. [00:30:01] Speaker 04: So there's no problem with temporal issues because the employer pays the fee at the same time. [00:30:05] Speaker 04: It requests that the agency send this for an application for admission. [00:30:11] Speaker 04: The agency seeks to write out the word admission to the statute. [00:30:16] Speaker 04: This court should not condone that tactic. [00:30:18] Speaker 04: Thank you, honors. [00:30:19] Speaker 03: OK, thank you. [00:30:20] Speaker 04: The case is submitted.