Care v. Nielsen

• Decision Date: 18 May 2020
• Docket Number: CIVIL ACTION NO. 1:18-CV-04666-AT
• Citation: 461 F.Supp.3d 1289
• Parties: CARE, Plaintiff, v. Kirstjen M. NIELSEN, Secretary, U.S. Dept. of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

461 F.Supp.3d 1289

CARE, Plaintiff,

v.Kirstjen M. NIELSEN, Secretary, U.S. Dept. of Homeland Security, et al., Defendants.

CIVIL ACTION NO. 1:18-CV-04666-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed May 18, 2020

Marshall Lewis Cohen, Antonini and Cohen Immigration Law Group, Atlanta, GA, Myron N. Kramer, Kramer Partners, LLP, Decatur, GA, for Plaintiff.

Aaron S. Goldsmith, Office of the United States Attorney-Civil, Washington, DC, Tiffany Rene Johnson, Office of the United States Attorney, Atlanta, GA, for Defendants.

OPINION AND ORDER

Amy Totenberg, United States District Judge

I. Introduction

This matter is before the Court on cross-motions for summary judgment. For the reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Summary Judgment [Doc. 18], DENIES the Defendants' Cross-Motion for Summary Judgment [Doc. 21], and REMANDS this matter to the Defendants for re-consideration consistent with the provisions of this Order and Opinion.

II. The Parties, Background, and Procedural History

Plaintiff, Cooperative for Assistance and Relief Everywhere, Inc. ("CARE" or "Plaintiff"), is a non-profit organization that provides emergency aid and development assistance to underdeveloped or emerging countries. (Doc. 1 at 9.) Plaintiff hired Ms. Aurelie Ngo Mambongo (the "Beneficiary") for the position of Impact Data Analyst. (Doc. 26-1 at 48.) Plaintiff alleges that the Secretary of the Department of Homeland Security, the Director of the United States Citizenship and Immigration Services ("USCIS"), and the Director of the USCIS California Service Center (collectively, the "Defendants"), acted arbitrarily and capriciously when they denied an H-1B visa on the grounds that the position the Plaintiff sought to fill was not a specialty occupation. The relevant facts come from the Administrative Record on which Defendants relied for their decision-making.

On January 22, 2018, Plaintiff filed a Form I-129 Petition seeking an H-1B visa designation for the Beneficiary. (See Mar. 29, 2018 Denial, Doc. 26-1 at 91.¹ ) On January 31, 2018, Defendants issued a Request for Evidence ("RFE") seeking additional information about the position. (Jan. 31, 2018 RFE, Doc. 28-1.) In the RFE, Defendants informed Plaintiff that the position did not appear to be a "specialty occupation" as required for issuance of an H-1B visa. (Doc. 28-1 at 3.) Plaintiff responded to the RFE by submitting a Position Description Letter from Korinne Chiu, Ph.D. Acting Director, Multiplying Impact at CARE (Chiu Letter, Doc. 26-1 at 171–74), and a letter from Robert J. Vandenberg, Ph.D., Professor of Business and Head of the Department of Management at the University of Georgia. (Vandenberg Letter, Doc. 26-1 at 222–27.)

On March 29, 2018, USCIS denied the petition, stating that the submitted materials did not substantiate Plaintiff's position that "Impact Data Analyst" meets the requirements to classify it as a "specialty occupation." (Mar. 29, 2018 Denial, Doc. 26-1 at 91–98; see also Jan. 31, 2018 RFE, Doc. 28-1 at 3–6.) The denial stated that Dr. Vandenberg's conclusion "shows that the proffered position is not a specialty occupation because it does not require a degree in a specific, specialized field." (Doc. 26-1 at 97.)

On May 7, 2018 Plaintiff filed a second Form I-129 Petition. (Doc. 26–1 at 33.) Along with the form, Plaintiff submitted: a letter in support of the petition from Myron Kramer of Kramer Partners LLP, outside counsel for CARE (Doc. 26–1 at 48–51); six previously approved similar H-1B visa applications for positions at CARE (Doc. 26–1 at 63–68, 319–24, 329–35); a letter of support from Plaintiff's in-house counsel, Scott M. Lenhart (Doc. 26–2 at 55–58); a copy of the first denial (Doc. 26–1 at 91–98); the certified Labor Conditions Application (Doc. 26-2 at 72–77); an expert opinion letter by Professor David Goldsman, Ph.D., from the Georgia Institute of Technology's H. Milton Stewart School of Industrial & Systems Engineering, specializing in the field of Operations Research (Doc. 26-1 at 57–62); a CARE Annual Report (Doc. 26-1 at 255–75); an Occupational Outlook Handbook disclaimer (Doc. 26-1 at 163); and the Beneficiary's prior visas (Doc. 26-1 at 75–89).²

On May 17, 2018, Defendants issued an RFE in response to Plaintiff's second petition, informing the Plaintiff that the petition did not support a finding that the position requires a degree in a specific specialty or that the duties are so specialized and complex to qualify as a "specialty occupation." (May 17, 2018 RFE, Doc. 26–1 at 344.) Plaintiff responded on June 22, 2018 with a second letter from Dr. Goldsman (Doc. 26–2 at 18–22) and a second letter in support from Mr. Kramer. (Doc. 26–2 at 12–16.) Mr. Kramer's letter focuses on the language of the regulations that set the standards for a specialty occupation. (Doc. 26-2 at 12–16.) Mr. Kramer stated, "the fact that one can enter into the position holding one of a certain number of related and relevant technical, analytical degrees should not be a bar to a finding that the position is a specialty occupation[.]" (Doc. 26-2 at 13.)

On July 3, 2018, Defendants denied the second H-1B petition on the basis that Plaintiff failed to provide sufficient evidence to show that the position was a specialty occupation. (July 3, 2018 Denial, Doc. 26-1 at 5–12.) There are substantial similarities in both of the denial letters' reasoning as to why the petition was not approved. (Compare July 3, 2018 Denial, Doc. 26-1 at 5–12; with Mar. 29, 2018 Denial, Doc. 26-1 at 91–98.)

Plaintiff filed the instant Complaint on October 5, 2018 and Defendants filed an answer on December 12, 2018. (Complaint, Doc. 1; Answer, Doc. 13.) Plaintiff filed a Motion for Summary Judgment on August 16, 2019 (Doc. 18) and Defendants filed a cross-Motion for Summary Judgment that also served as a Response to Plaintiff's Motion for Summary Judgment on September 13, 2019. (Doc. 21.) Plaintiff filed a Reply in support of their own Motion that also served as a Response to Defendant's Motion for Summary Judgment on October 4, 2019. (Doc. 23.) Defendants filed a Reply in support of their Motion on October 25, 2019. (Doc. 24.) The Administrative Record was filed on February 6, 2020 (Doc. 26) with a supplemental filing on February 17, 2020. (Doc. 28.)

III. Background and Facts

H-1B visas are non-immigrant visas for temporary workers who come to the United States "to perform services in a specialty occupation[.]" 8 C.F.R. § 214.2 (h)(1)(ii)(B)(1).³ The petitioner for an H-1B visa – the employer – has the burden of proving that the job is a "specialty occupation" as defined by the statute. See Royal Siam Corp. v. Chertoff , 484 F.3d 139, 144 (1st Cir. 2007). Title 8 of the United States Code lists the requirements for a "specialty occupation" this way:

(1) Except as provided in paragraph (3), for purposes of section 1101(a)(15)(H)(i)(b) of this title, section 1101(a)(15)(E)(iii) of this title, and paragraph (2), the term "specialty occupation" means an occupation that requires—

(A) theoretical and practical application of a body of highly specialized knowledge, and

(B) 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.

8 U.S.C. § 1184(i)(1). Title 8 of the Code of Federal Regulations further defines a specialty occupation as:

An occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

8 C.F.R. § 214.2(h)(4)(ii). Pursuant to that same section of the Code of Federal Regulations, any one of the following four criteria must be met for a position to qualify as a specialty occupation:

(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) ; see also Royal Siam Corp. v. Chertoff , 484 F.3d 139, 145 (1st Cir. 2007) ("To satisfy [ 8 C.F.R. § 214.2(h)(4)(ii) ], a position must touch at least one of four overlapping bases.").

When filing an H-1B petition, petitioners must submit a Labor Condition Application ("LCA"). See 8 U.S.C.A. § 1182(n) "Labor Condition Application" (West); and Cyberworld Enter. Techs., Inc. v. Napolitano , 602 F.3d 189, 192 (3d Cir. 2010) (citing Pub. L. No. 101–649 § 205, 104 Stat. 4978, 5021–22 (1990); Pub. L. No. 105–277 §§ 412–13, 112 Stat. 2681, 2981–642 to –650 (1998)). The LCA is a document prepared by the petitioner in which the petitioner makes several attestations, including that

(A) The employer—

(i) is offering and will offer ... wages that are at least—

(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or

(II) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application, and

(ii) will provide working

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