# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 2013 Decided June 25, 2013

No. 12

- 5168

I NTERNATIONAL I NTERNSHIP P ROGRAM
, A PPELLANT

v.

J ANET A NN N APOLITANO
, S ECRETARY
, U.S. D EPARTMENT OF H OMELAND S ECURITY
, ET AL
., A PPELLEES

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, a rgued 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: H ENDERSON
, T ATEL
, and K AVANAUGH
, Circuit Judges

.2

Opinion for the Court filed by Circuit Judge
K AVANAUGH

.

K AVANAUGH
, 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 t he 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 t hat 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 i n 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 admi ttedly does not pay its participants any wages. USCIS theref ore concluded that International Internship did not satisfy the requirements for Q

1 visas. The District Court upheld USCIS’s decision.

In this Court, International Internship c hallenges
USCIS’s ruling on three grounds.3

First

, International Internship contends that USCIS’s interpretation and application of the regulation is inconsistent
wit h 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 t h e statute provides that foreig n 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
reference s to “ emplo yed, ” “wages

, ” and “workers,” w e 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 regulati on

. T he regulation directs that an “ e mployer ” 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)

. T he next provision
in the regulation requires that an “ e mployer” show that it has “the financial ability t o remunerate the participant(s). ” Id. § 214.2(q)(4)(i)(E). Given t he regulation’s reference s to “employer,” “wages

, ” “workers

, ” and “remunerate

, ” we agree with USCIS that the regulation

– like the s tatute

– is be st read

t o 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 dete rmine 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 t he se initial two arguments

were moot because the visa petitions requested approval for Q

- 1 visas expiring no later than January 2012. W e agree with4

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 . Th e Regulatory Flexibility Act generally

req uires agencies , when they promulgate new rule s , to analyze and explain the impact of the new rule s on small
entities. 5 U.S.C. §§ 603( a), 604 , 605(b)

. T he Administrative
Procedure Act often requires that agencies engage in notice

and

- 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
R egulatory F lexibility A ct or the Administrative Procedure
Act’ s notice

- and

- comment procedures because the denial s

were not rule s under either act; rather, they were informal adjudications

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

- (b)(A) (APA); see als o 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).