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 ...