Stellar It Solutions, Inc. v. United States Citizenship and Immigration Services

          MEMORANDUM OPINION RE DOCUMENT NO. 24

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         Denying Motion to Intervene

         I. INTRODUCTION

         InDepth 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 therefore denied.

         II. FACTUAL BACKGROUND

         H-1B 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).

         After 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 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.

Id. at § 214.2(h)(4)(iii)(A).

         InDepth 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. ¶ 31.

         Nearly 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 ...