United States District Court, District of Columbia
N. MCFADDEN, UNITED STATES DISTRICT JUDGE
Sitaram is a citizen of India and employee of Sage IT, Inc.
(collectively, the “Plaintiffs”), a software
development and information technology services company. The
Plaintiffs seek judicial review of the U.S. Citizenship and
Immigration Service's (“USCIS”) decision to
deny Sage IT's petition to extend Mr. Sitaram's H-1B
status as a nonimmigrant worker in a specialty occupation.
The USCIS found that Mr. Sitaram had exhausted his maximum of
six years of H-1B eligibility and that his stay could not be
extended through a statutory three-year extension. The USCIS
reasoned that Mr. Sitaram was ineligible for the extension
because his approved application for preference status (an
“I-140”), one of two requirements for the
extension, had been revoked when his previous employer
withdrew their petition. In moving for summary judgment, the
Plaintiffs assert that the agency's decision was
arbitrary and capricious because the USCIS later promulgated
a regulation that no longer required an I-140 be
automatically revoked upon an employer's notice of
withdrawal. Defendant L. Francis Cissna, Director of the
USCIS,  filed a cross-motion for summary judgment.
Upon consideration of the pleadings, relevant law, related
legal memoranda in opposition and in support, and the entire
record, I find that at the time the USCIS adjudicated Mr.
Sitaram's petition, the applicable regulation was
unambiguous and that the USCIS's denial was not arbitrary
and capricious. Accordingly, the Plaintiffs' motion will
be denied and the Defendant's cross-motion for summary
judgment will be granted.
visas permit qualified workers in specialty occupations to
work in the United States. See 8 U.S.C. §
1101(a)(15)(H)(i)(B). Prior to 2000, an alien with a H-1B
visa could not stay in the United States for longer than six
years, even if his application for permanent status was
pending. See 8 U.S.C. § 1184(g)(4) (1994). In
2000, Congress created two mechanisms to allow H-1B visa
holders to extend their nonimmigrant status beyond the limit.
See Am. Competitiveness in the Twenty-First C. Act
(“AC21”), Pub. L. No. 106-313, §§
104(c), 106(a) (codified at 8 U.S.C. § 1184 note).
first mechanism introduced by AC21-Section 104(c)-provides
for a three-year extension if the alien (1) is the
beneficiary of a petition for preference status and (2) would
be eligible for this status but for per country limitations.
Id. § 104(c); Memorandum from Donald Neufeld,
Acting Assoc. Director, to USCIS Field Leadership
(“Neufeld Memo”) at 6 (May 30, 2008), ECF No.
14-1. Preference status applications are made through I-140
petitions. See CAR-II at 230.
second mechanism-Section 106-provides for recurring one-year
extensions for aliens whose labor certification or I-140
petition were filed more than 365 days prior. 21st C.
Dep't. of Justice Appropriations Authorization Act
(“DOJ-21”), Pub. L. No. 107-273, § 11030A
(2002) (codified at 8 U.S.C. § 1184 note). One-year
extensions are granted until “a final decision is
made” either (1) denying an application for labor
certification, (2) revoking a labor certification, (3)
denying an immigrant petition, or (4) granting or denying an
application for an immigrant visa or adjustment of status.
Id.; Neufeld Memo at 4.
Sitaram first lawfully entered the United States in January
2007 and received H-1B status on November 8, 2010. Compl.
¶ 7, ECF No. 1; Def.'s Cross-Mot. for Summ. J. 3,
ECF No. 14; Pls.' Mot. for Summ. J. ¶¶ 2, 7,
ECF No. 13. In 2012, Mr. Sitaram's then-employer,
Highpoint Solutions, LLC, filed a form I-140 petition for
permanent status. Id. ¶ 6. This set the
priority date for Mr. Sitaram's petition-his place in the
permanent-status waiting line-at November 23, 2011.
Id. Mr. Sitaram subsequently resigned from
Highpoint, and Highpoint withdrew its I-140 petition.
Id.; CAR-II at 232. Because an I-140 petition must be
automatically revoked when an employer withdraws its support,
Mr. Sitaram's first I-140 petition was automatically
revoked on June 14, 2013. See 8 C.F.R. §
205.1(a)(3)(iii)(C) (2013); CAR-II at 15, 231; see
also 8 C.F.R. § 103.2(b)(1) (requiring that the
alien maintain eligibility throughout adjudication of his
joined TIBCO Software, and TIBCO filed Mr. Sitaram's
second I-140 petition in January 2016, which was approved a
month later. Pls.' Mot. for Summ. J. 9 ¶ 7. Mr.
Sitaram retained his priority date from his first I-140.
Id. ¶ 7 n.5; see also 8 C.F.R. §
204.5(d). After Mr. Sitaram left that company as well, TIBCO
withdrew its I-140 petition on April 15, 2016. CAR-II at 12.
On July 21, 2016, Mr. Sitaram's I-140 was automatically
revoked. CAR-II at 14-15; see also 8 C.F.R. §
April 28, 2016, Sage IT wrote to the USCIS that it offered
Mr. Sitaram “temporary fulltime employment as a
Solution Architect” beginning May 2, 2016 and
petitioned to extend Mr. Sitaram's H-1B status by three
years under Section 104(c). See CAR-I at 9,
In November 2016, the Department of Homeland Security, of
which the USCIS is a component, amended the relevant
regulatory provision so that an employer-petitioner's
withdrawal would not automatically revoke a petition. 81 Fed.
Reg. 82, 398, 82, 402, 82, 416 (Nov. 18, 2016) (codified at 8
C.F.R. §§ 205.1(a)(3)(iii)(C)-(D)). DHS set the
amendment's effective date as January 17, 2017. See
Id. at 82398.
March 23, 2017, the USCIS denied Mr. Sitaram's H-1B
transfer petition, citing two grounds. CAR-I at 2-4. First,
the USCIS found that Mr. Sitaram had exhausted his H-1B's
six year limit since he had been working under H-1B status
since November 8, 2010. Id. at 2. Second, the USCIS
determined that Mr. Sitaram was not eligible for a three-year
extension of his H-1B visa because he did not have an
approved I-140 visa petition. Id. at 3. The USCIS
reasoned that the revised regulation did not apply to Sage
IT's petition because its effective date was after Sage