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Sagarwala v. Cissna

United States District Court, District of Columbia

July 15, 2019

USHA SAGARWALA, Plaintiff,
v.
L. FRANCIS CISSNA, Defendant.

          MEMORANDUM OPINION RE DOCUMENT NO. 13, 25 DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Usha Sagarwala is a citizen of India who claims that the United States Citizenship and Immigration Services (“USCIS”) unlawfully denied her an H-1B visa, a status granted to foreign citizens employed in “specialty occupation[s].” 8 U.S.C. § 1101(a)(15)(H)(i)(B). Seeking a court order that would require USCIS to grant her visa petition, Sagarwala brought this lawsuit against the agency's Director under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706. As the Court will explain below, however, review under the APA is highly deferential to agency decisions, and USCIS's decision here was supported by the record before it. Sagarwala's motion for summary judgment is therefore denied, and the USCIS Director's cross-motion for summary judgment is granted.

         II. BACKGROUND

         H-1B visas are a form of legal nonimmigrant status, meaning one granted to individuals temporarily and for a particular purpose. The H-1B program's purpose is to allow American employers to temporarily hire foreign citizens to work in “specialty occupation[s], ” 8 U.S.C. § 1101(a)(15)(H)(i)(B), defined as those requiring “theoretical and practical application of a body of highly specialized knowledge, and . . . attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States, ” id. § 1184(h)(i)(1)(A)-(B).

         To participate in the H-1B program, interested employers must complete a two-step process with respect to each foreign worker they wish to hire. First, they must submit to the Department of Labor (“DOL”) a Labor Condition Application (“LCA”) identifying the specialty occupation position at issue and confirming that they will comply with the requirements of the program. See 8 U.S.C. § 1182(n)(1). Second, after DOL certifies the LCA, the employer must submit the LCA to USCIS with a Form I-129 petition requesting that the foreign worker- referred to as the petition's “beneficiary”-be classified as an H-1B nonimmigrant worker. See 8 C.F.R. § 214.2(h)(4). In this petition, the employer has the burden of establishing, among other things, that the position offered to the beneficiary is in fact a “specialty occupation.” See 8 U.S.C. § 1361 (“Whenever any person makes application for a visa or any other document required for entry, . . . the burden of proof shall be upon such person to establish that he is eligible to receive such visa.”). To carry that burden, the employer must show that the position satisfies at least one of four prerequisites:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A).

         Sagarwala first obtained H-1B status through this two-step process in 2012. See A.R. at 179, ECF No. 13-2. But in August 2018, she sought to change jobs, so her new employer, HSK Technologies, Inc., had to begin the process anew. The company completed an LCA form, which DOL certified, and then submitted the LCA to USCIS with a Form I-129 Petition and supporting documents. The submitted documents explained that Sagarwala's new position would be “QA Analyst, ” to be performed on-site at Anthem, Inc. in Wallingford, Connecticut, for whom HSK Technologies would provide services as a sub-contractor.[1] Id. at 192; see also id. at 194-210. An attached expert report indicated that a “QA Analyst” is essentially a software quality assurance engineer or tester-meaning someone who “[d]esign[s] tests plans . . . or procedures” and “[d]ocument[s] software defects” in order to report such “defects to software developers.” Id. at 235. According to that expert report, such a position requires “a strong foundation in the field of Computer Information Systems, or a related field, which can only be obtained through a Bachelor's degree in the field of Computer Information Systems, or a closely related field.” Id. at 237. HSK Technologies appeared to be more welcoming, however. According to its initial petition, it sought candidates for the QA Analyst position who possessed “a minimum of a bachelor's degree in Computer Science, Information Technology, Mathematics, Engineering or its equivalent, as well as any other interested and qualified professionals with diverse backgrounds in the sciences, technology, engineering, or mathematics, who ha[d] the necessary quantitative and qualitative critical thinking skill sets.” Id. at 191.

         Upon receiving the LCA, I-129, and supporting documents, USCIS issued a Request for Evidence (“RFE”) asking for additional information about HSK Technologies' employment relationship with Sagarwala and the characteristics of the offered position. Id. at 12-21. HSK Technologies responded by updating its submission. That new submission began with a notable attempted correction: The company claimed that it was an “inadvertent statement” to say in its initial petition that a “wide range of specialties” could qualify someone for the QA Analyst Position. Id. at 25. The truth, the company said, was that the position required a bachelor's degree “in Computer Information Systems or [a] related field, such as Information Systems or [Computer Science].” Id.

         HSK Technologies' updated submission also provided a number of new exhibits intended to quell USCIS's concerns. To address the employment relationship issue, the company included, among other things, a verification letter from Anthem, a copy of the subcontractor agreement, and Sagarwala's timesheets and paystubs. See Id. at 33-39, 44-55. And to demonstrate that the company's QA Analyst position was a specialty occupation, the company included a purportedly more detailed description of the position, job listings of other industry positions that were apparently similar to HSK Technologies' position, and a revised expert report. See Id. at 60-117.

         USCIS concluded, however, that HSK Technologies' evidence remained insufficient and formally denied the H-1B petition. In its written decision, the agency focused its analysis entirely on whether the QA Analyst position constituted a specialty occupation for purposes of the H-1B program; the agency did not address the employment relationship issue. Apparently either ignoring or discrediting HSK Technologies' attempted correction, USCIS began by stressing that the company had “indicated that the minimum entry requirements for the offered position [were] a wide variety of disparate fields of study.” Id. at 4. A minimum entry requirement that encompasses such “disparate fields of study, ” USCIS explained, does not comport with H-1B's requirement that the degree be “in [a] specific specialty”-unless the petitioning employer “establish[es] how each field is directly related to the duties and responsibilities of the particular position.” Id. at 5. According to the agency, HSK Technologies' evidence did not show the requisite connection.

         USCIS further explained that the company had failed to demonstrate how any of the four prerequisites from 8 C.F.R. § 214.2(h)(4)(iii)(A) were satisfied. With respect to the first- whether the degree is normally the minimum requirement for entry into the particular position- the agency found that the company's reliance on the DOL's “O*NET Online” website was insufficient because the website's summary report for Software Quality Assurance Engineers and Testers made “no reference to a degree requirement in a specific specialty.” A.R. at 6. And although the company's expert had said that a bachelor's degree in computer information systems was required for the position, the agency explained that the expert's report did “not cite the source of [its] information, ” and that the record did not contain “any corroborative evidence” that supported the expert's position. Id.

         As for the second prerequisite, USCIS concluded that there was insufficient evidence to conclude that the required degree was “common to the industry in parallel positions among similar organizations” or that the position was “so complex or unique that it [could] be performed only by an individual with a degree.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). HSK Technologies' submitted job listings, the agency reasoned, showed that the industry normally required some kind of bachelor's degree for parallel positions, but that a bachelor's degree in a specific specialty was usually unnecessary. A.R. at 7. And none of the submitted evidence, the agency said, identified “any tasks that [were] so complex or unique” that “only an individual with a degree in a specific specialty could perform them.” Id. at 8.

         Turning to the third prerequisite, USCIS now appeared to acknowledge HSK Technologies' attempted correction: the agency conceded that the company claimed to “normally require[] a degree or its equivalent for the position.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). But the agency explained that the company had “submitted no evidence or discussion” in support of that claim. A.R. at 8. According to USCIS, the company's “opinion alone [could] []not establish the position as a specialty occupation, ” because “[i]f USCIS was limited solely to reviewing a petitioner's self-imposed requirements, then any individual with a ...


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