United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 2013 Decided June 25, 2013

No. 12-5168

INTERNATIONAL INTERNSHIP PROGRAM,

APPELLANT

v.

JANET ANN NAPOLITANO, SECRETARY, U.S. DEPARTMENT OF 

HOMELAND SECURITY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01234)

Frederic W. Schwartz, Jr. argued the cause and filed the 

briefs for appellant. 

Aaron S. Goldsmith, Senior Litigation Counsel, U.S. 

Department of Justice, argued the cause for appellees. With 

him on the brief were Stuart F. Delery, Acting Assistant 

Attorney General, David J. Kline, Director, and Durwood H. 

Riedel, Trial Attorney. 

Before: HENDERSON, TATEL, and KAVANAUGH, Circuit 

Judges.
2

Opinion for the Court filed by Circuit Judge 

KAVANAUGH.

KAVANAUGH, Circuit Judge: An organization known as 

International Internship Program sponsors a cultural exchange 

program that helps people from Asian countries find jobs in 

American schools. To participate in a cultural exchange 

program sponsored by a U.S. employer, a foreign citizen must 

obtain a Q-1 visa from U.S. Citizenship and Immigration 

Services, known as USCIS. USCIS is part of the Department 

of Homeland Security. As part of the Q-1 process, USCIS 

also must approve the employer’s cultural exchange program

and the employer’s eligibility as a qualified employer for such 

a program.

USCIS has issued regulations governing cultural 

exchange programs and Q-1 visas. The key regulation here 

requires that the program have a “work component” and that 

the employer offer the foreign citizen “wages and working 

conditions comparable to those accorded local domestic 

workers similarly employed.” 8 C.F.R. § 214.2(q)(3)(iii)(C), 

(q)(4)(i)(D).

Beginning in 2010, USCIS denied several of 

International Internship’s petitions for Q-1 visas for foreign 

applicants to its cultural exchange program. USCIS did so 

because it interpreted its regulation to require sponsors of a

cultural exchange program to pay wages to the participating 

aliens. International Internship admittedly does not pay its 

participants any wages. USCIS therefore concluded that 

International Internship did not satisfy the requirements for Q1 visas. The District Court upheld USCIS’s decision. 

In this Court, International Internship challenges 

USCIS’s ruling on three grounds.
3

First, International Internship contends that USCIS’s 

interpretation and application of the regulation is inconsistent 

with the governing federal statute. International Internship 

argues that unpaid foreign interns are eligible to participate in 

a Q-1 program so long as there are comparable unpaid 

American interns in the local workforce. But the statute 

provides that foreign participants “will be employed under the 

same wages and working conditions as domestic workers.” 8 

U.S.C. § 1101(a)(15)(Q). Given the statute’s specific 

references to “employed,” “wages,” and “workers,” we agree 

with USCIS that the statute is best read to require that the 

foreign citizens receive wages and that those wages be 

equivalent to the wages of domestic workers.1

 

Second, International Internship essentially advances the 

same argument based on the language of the similarly worded

regulation. The regulation directs that an “employer” must 

“offer the alien(s) wages and working conditions comparable 

to those accorded local domestic workers similarly 

employed.” 8 C.F.R. § 214.2(q)(4)(i)(D). The next provision

in the regulation requires that an “employer” show that it has

“the financial ability to remunerate the participant(s).” Id.

§ 214.2(q)(4)(i)(E). Given the regulation’s references to

“employer,” “wages,” “workers,” and “remunerate,” we agree 

with USCIS that the regulation – like the statute – is best read 

to require that the foreign citizens receive wages and that 

those wages be comparable to those of local workers.2

 

 1 Because we conclude that the agency’s interpretation of the 

statute is the better reading, we need not determine whether the 

agency’s interpretation is entitled to Chevron deference. Cf. United 

States v. Mead Corp., 533 U.S. 218, 228-32 (2001). 

2 The District Court found that these initial two arguments 

were moot because the visa petitions requested approval for Q-1 

visas expiring no later than January 2012. We agree with 
4

Third, International Internship separately contends that 

USCIS failed to comply with the Regulatory Flexibility Act

and the notice-and-comment procedures of the Administrative 

Procedure Act. The Regulatory Flexibility Act generally

requires agencies, when they promulgate new rules, to 

analyze and explain the impact of the new rules on small 

entities. 5 U.S.C. §§ 603(a), 604, 605(b). The Administrative 

Procedure Act often requires that agencies engage in noticeand-comment procedures when issuing rules. 5 U.S.C. 

§ 553(b)-(c). When it denied International Internship’s 

petitions in 2010, however, USCIS did not trigger the 

Regulatory Flexibility Act or the Administrative Procedure 

Act’s notice-and-comment procedures because the denials 

were not rules under either act; rather, they were informal 

adjudications. Id. § 601(2) (RFA); id. §§ 551(4), 553(b)-

(b)(A) (APA); see also Central Texas Telephone Cooperative, 

Inc. v. FCC, 402 F.3d 205, 211 (D.C. Cir. 2005); Syncor 

International Corp. v. Shalala, 127 F.3d 90, 93 (D.C. Cir. 

1997). 

* * *

We have considered all of International Internship 

Program’s arguments. We affirm the judgment of the District 

Court.

So ordered.

 

International Internship that the claims are not moot because they 

are “capable of repetition but evading review.” Del Monte Fresh 

Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009). 

On the merits, however, we affirm the District Court on alternative 

grounds. See Nader v. Democratic National Committee, 567 F.3d 

692, 699 (D.C. Cir. 2009).