The opinion of the court was delivered by: John D. Bates United States District Court
Before the Court is the motion for preliminary injunction filed by RCM Technologies, Inc., Cambridge Systems, Inc., and Global Recruitment Connections, LLC (collectively, "plaintiffs"). They seek to enjoin the U.S. Citizenship and Immigration Services ("CIS" or "defendants"), an agency within the Department of Homeland Security, from applying a new "policy" that allegedly requires foreign occupational and physical therapists to have master's degrees in order to obtain H-1B visas. Because plaintiffs challenge the CIS "policy," rather than challenging a denial of a specific visa application, they are not likely to succeed on the merits of their claims. Likewise, plaintiffs cannot succeed on the merits because the challenged "policy," even as described in plaintiffs' declarations, is not "binding," and hence does not constitute "final agency action" reviewable under the Administrative Procedure Act. For the reasons explained below, then, plaintiffs' motion will be denied.
Plaintiffs are in the business of recruiting and training foreign physical and occupational therapists, sponsoring them for H-1B visas, and then placing them with U.S. clients. See Compl. ¶ 18. H-1B visas are available for qualified foreign nationals working in "specialty occupations." Id. ¶ 17; see also 8 U.S.C. § 1184(i). A cap applies to H-1B visas -- only 65,000 are permitted in any fiscal year, which begins on October 1. Visa applications may be submitted six months before the fiscal year begins. On April 1, 2009, plaintiffs filed over 100 visa applications for foreign therapists for fiscal year 2010, which begins October 1, 2009. See id. ¶¶ 41, 43, 45.
In January 2009, RCM and Global Recruiting began to receive denials of previously-filed H-1B visa petitions because the therapists on whose behalf the petitions had been filed lacked master's degrees. See id. ¶¶ 36-37. According to plaintiffs, these denials are a result of a new CIS policy that is inconsistent with applicable statutes and regulations and that was never properly promulgated. Plaintiffs have submitted a declaration from Donald Freiberg, an immigration attorney in California, who reports that at a public meeting on February 25, 2009, representatives from CIS's California office "represented that they received clearance from headquarters to require master's degree[s] for occupational and physical therapy positions for which new H-1B classification was sought." See Pls. Rep. Ex. A at ¶ 5.
Plaintiffs filed suit in this Court on April 8, 2009 and filed a motion for a preliminary injunction the same day. They seek to enjoin CIS's further use of this alleged policy of requiring master's degrees in adjudicating H-1B visas for physical and occupational therapists. The motion is fully briefed and the Court held a motions hearing on May 4, 2009.
A preliminary injunction is an extraordinary and drastic remedy, one that should be granted only when the moving party, by a clear showing, carries the burden of persuasion. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); see also Munaf v. Geren, 128 S.Ct. 2207, 2219 (2008). With that in mind, the standard for a preliminary injunction is well established. To prevail, the moving party must demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable harm without injunctive relief, (3) that an injunction would not substantially harm other interested parties, and (4) that issuance of the injunction is in the public interest. Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998).
A substantial likelihood of success on the merits is vital. See Serono Labs., 158 F.3d at 1326; Hi-Tech Pharm. Co., Inc. v. FDA, 587 F. Supp. 2d 1, 7 (D.D.C. 2008). "Without any probability of prevailing on the merits, the Plaintiffs' purported injuries, no matter how compelling, do not justify preliminary injunctive relief." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999). Despite the importance of demonstrating a substantial likelihood of success on the merits, the four factors "are not considered in isolation from one another, and no one factor is necessarily dispositive as to whether preliminary injunctive relief is warranted. Rather, the factors 'interrelate on a sliding scale and must be balanced against each other.'" Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001) (citations omitted). "If the plaintiff makes a particularly weak showing on one factor, however, the other factors may not be enough to 'compensate.'" Id. at 73; see also Hunter v. FERC, 527 F. Supp. 2d 9, 14 (D.D.C. 2007); Dodd v. Fleming, 223 F. Supp. 2d 15, 20 (D.D.C. 2002).
I. Substantial Likelihood of Success on the Merits
The Court will focus its analysis on the first prong of the test for a preliminary injunction:
plaintiffs' likelihood of success on the merits. Defendants raise two threshold reasons why plaintiffs cannot ultimately succeed with their suit. First, defendants argue that plaintiffs' challenge to an alleged "policy" is not justiciable; plaintiffs must instead challenge individual denials of specific visa applications. Second, defendants contend that the "policy" at issue here does not constitute "final agency action" and hence is unreviewable under the ...