The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
IQ Systems, Inc. complains that the U.S. Citizenship and Immigration Service ("USCIS"), an agency within the Department of Homeland Security, improperly denied its I-140 visa petition on behalf of intended beneficiary Ravi Kuma Akuthota. USCIS moves to dismiss for lack of jurisdiction and failure to state a claim. Because USCIS's denial of the visa petition was based on a question of law and not on the exercise of discretion, this Court has jurisdiction to review the denial pursuant to federal question jurisdiction, 28 U.S.C. § 1331, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. However, because the Complaint fails to state a claim that USCIS's decision was arbitrary or capricious, the motion to dismiss will be granted.
An alien cannot work in the United States without the appropriate authority from USCIS. One way for an alien to receive permission to work is for an employer to submit a Form ETA-750 Application for Alien Employment with the Department of Labor. The application names an available alien worker for an open and advertised position and asks the Secretary of Labor to certify that (1) the employer attempted to recruit U.S. workers in good faith; (2) no U.S. worker is qualified, able, willing, or available for such employment; and (3) employing the alien worker will not adversely affect U.S. wages or working conditions. 8 U.S.C. § 1182(a)(5); 20 C.F.R. § 656.10(a) & (c). If the Secretary grants the labor certification, the Secretary returns the original certified application to the employer. 20 C.F.R. § 656.24(d). Once an employer has received an approved original labor certification, the employer may file with USCIS a Form I-140 Immigrant Worker Visa Petition; the employer must submit the labor certification with the I-140 Petition. 8 C.F.R. § 204.5(l)(3)(i); see also 8 U.S.C. § 1153(b)(3)(C) (an immigrant visa may not be issued until the consular officer receives the labor certification). The I-140 Petition must describe the special training or talent of the specific alien for whom the application is made and the paucity of available similar workers in the United States. See 8 U.S.C. §§ 1153(b)(2) & (3); id. § 1154(a)(1)(F); 8 C.F.R. § 204.5. Upon approval of an I-140 Petition, the named alien receives a visa which allows him to work for the named employer. See 8 C.F.R. § 204.5(n).*fn2
IQ Systems, Inc. ("IQ Systems") is a computer consulting company that filed an application for labor certification for the position of Software Engineer, naming as the prospective alien worker Ravi Kumar Akuthota. The Secretary of Labor certified the position and issued the labor certification on April 12, 2007. See Compl., Ex. 2 (4/12/07 Labor Certification for Mr. Akuthota). On May 3, 2007, IQ Systems filed a Form I-140 visa petition on behalf of another individual, Ravi Kanth Kotagiri, using the labor certification for Mr. Akuthota in accordance with then-applicable regulations. Those prior regulations permitted an employer to "substitute," i.e., to use an approved labor certification for a different prospective alien worker than the individual named in the I-140 application. See 20 C.F.R. § 656.30(c)(2) (version effective Mar. 28, 2005 to July 15, 2007). Subsequently, the Secretary of Labor promulgated a new regulation prohibiting the substitution of aliens in any visa request submitted on July 16, 2007 or thereafter. See 72 Fed. Reg. 27904, 27944 (May 17, 2007) (adding 20 C.F.R. § 656.11).
On August 15, 2007, IQ Systems filed an I-140 visa petition with USCIS on behalf of Mr. Akuthota. IQ Systems indicated that it intended to "withdraw the I-140 petition filed in (sic) behalf of Ravi Kanth Kotagiri*fn3 (substituted alien beneficiary) and respectfully [sought] permission to reuse this approved labor [certification] in (sic) behalf of the original alien Mr. Akuthota." See Compl., Ex. 3 (Aug. 10, 2007 Letter Supporting Visa Petition for Mr. Akuthota). USCIS denied IQ Systems' I-140 visa petition, because the petition was filed after July 16, 2007, and a substitution of the intended alien beneficiary was prohibited. See id., Ex. 1 (Feb. 19, 2009 Decision) at 2. IQ Systems requested reconsideration. USCIS denied reconsideration, noting that the re-substitution of the original alien was filed one month after the new regulation prohibiting substitution took effect. See id., Ex. 5 (Mar. 24, 2009 Decision).
IQ Systems contends that USCIS's denial of the I-140 visa petition was arbitrary and capricious because IQ should have been able to use the original labor certification (for Mr. Akuthota) in support of the August 2007 I-140 visa petition on behalf of Mr. Akuthota - despite the substitution in the interim of Mr. Kotagiri.
A. Motion to Dismiss for Lack of Jurisdiction
When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is a constitutional and statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).
B. Motion to Dismiss for Failure to State a Claim
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint must be sufficient "to give a defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3. "[A] complaint needs some information about the circumstances giving rise to the claims." Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original).
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 129 S.Ct. ...