United States District Court, District of Columbia
STELLAR IT SOLUTIONS, INC. and KARTIK KRISHNAMURTHY, Plaintiffs,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
MEMORANDUM OPINION RE DOCUMENT NO. 24
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
Motion to Intervene
Engineering Solutions, LLC believes that the United States
Citizen and Immigration Services (“USCIS”)
unlawfully denied its petition for an H-1B visa. But instead
of bringing its own lawsuit under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706,
InDepth seeks to intervene in a suit that was previously
filed by another company involving a different H-1B petition.
As the Court will explain below, intervention under these
circumstances is inappropriate because it would result in
undue delay, and because the two companies' cases are
factually distinct. InDepth's motion to intervene is
visas are a form of legal nonimmigrant status that grant the
visa holder the legal ability to remain in the United States
temporarily. Under the H-1B program, American employers are
permitted to temporarily hire foreign citizens to work in
“specialty occupation[s], ” 8 U.S.C. §
1101(a)(15)(H)(i)(B), which the Immigration and Nationality
Act defines 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. at § 1184(i)(1)(A)-(B).
employers choose to participate in the H-1B program and find
a foreign worker they intend to hire, they must complete a
two-step process. First, they must submit to the Department
of Labor a Labor Condition Application (“LCA”)
identifying the specialty occupation job being offered and
verifying that they will comply with the requirements of the
program. See 8 U.S.C. § 1182(n)(1). Second,
once the Department of Labor certifies the LCA, the employer
must submit the application to USCIS with a Form I-129
petition requesting that the foreign worker be classified as
an H-1B nonimmigrant worker. See 8 C.F.R. §
214.2(h)(4). In this petition, the employer must establish
that it has “an employer-employee relationship”
with the worker, “as indicated by the fact that [the
employer] may hire, pay, fire, supervise, or otherwise
control the work of” the potential H-1B recipient.
Id. at § 214.2(h)(4)(ii). The employer also has
the burden of establishing that the position offered is in
fact a “specialty occupation.” Id. at
§ 214.2(h)(1)(ii)(B)(1). 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
(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
Id. at § 214.2(h)(4)(iii)(A).
is a Michigan-based consulting firm seeking to utilize the
H-1B program to hire a software developer named Manohar Goud
Palsa. See Proposed Am. Compl. (“Am.
Compl.”) ¶¶ 6, 22, ECF No. 24-1. The company
provides mechanical design and engineering solutions in a
variety of industries, including automotive, alternative
energy, and entertainment. Id. ¶ 6. InDepth
wishes to hire Mr. Palsa as a “Senior Product Engineer,
” to work on-site at Fiat Chrysler America, a company
for whom InDepth apparently provides consulting services.
Id. ¶¶ 22, 32. According to USCIS,
however, InDepth failed to establish that Mr. Palsa's
position qualified as a specialty occupation. Id.
¶ 23. On November 2, 2018, the agency issued a decision
denying InDepth's H-1B petition on the ground that the
“record [did] not demonstrate the specific duties the
beneficiary [would] perform under contract for
[InDepth's] clients.” Id. InDepth now
argues that USCIS failed to consider a letter provided by
Fiat Chrysler America that supposedly described the specific
duties of Mr. Palsa's proposed position. Id.
¶ 32. InDepth thus claims that USCIS's decision
violated the APA because it was “contradicted by the
record and ignore[d] critical evidence.” Id.
four months after USCIS's denial of the petition, InDepth
filed a motion to intervene in a case brought by Stellar IT
Solutions, Inc. Stellar IT is a Maryland corporation that
provides professional software services, such as custom
software development, web development, and systems
integration. Compl. ¶ 3, ECF No. 1. In 2018, the company
applied for an H-1B visa on behalf of a software engineer
named Kartik Krishnamurthy. Id. ¶¶ 4, 10.
Stellar IT hoped to hire Mr. Krishnamurthy as a “Senior
Project Manager Information Technology, ” to be
performed on-site at Honda North America. See
Compl., Ex. A at 88, 95, ECF No. 1-5. The position's
responsibilities included “[e]stablish[ing] and
implement[ing] project management processes and methodologies
for the IT community;” “work[ing] closely across
business and IT teams to ...