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Sage IT, Inc. v. Cissna

United States District Court, District of Columbia

June 22, 2018

SAGE IT, INC., et al., Plaintiffs,
v.
L. FRANCIS CISSNA, Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, UNITED STATES DISTRICT JUDGE

         Sandeep 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because his approved application for preference status (an “I-140”), one of two requirements for the extension, had been revoked when his previous employer withdrew their petition.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, [1] 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.

         I.

         A.

         H-1B 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).

         The 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.

         The 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).[2] 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.

         B.

         Mr. 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.[3] 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 petition).

         He then 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. § 205.1(a)(3)(iii)(C) (2016).

         C.

         On 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, 24.[4] 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.

         On 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 ...


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