G.D USA, Inc. v. United States Citizenship and Immigration Services, Civil Action No. 3:19cv694

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: M. Hannah Lauck, United States District Judge
• Citation: 531 F.Supp.3d 966
• Decision Date: 31 March 2021
• Docket Number: Civil Action No. 3:19cv694
• Parties: G.D USA, INC., Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

531 F.Supp.3d 966

G.D USA, INC., Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Civil Action No. 3:19cv694

United States District Court, E.D. Virginia, Richmond Division.

Signed March 31, 2021

531 F.Supp.3d 971

David Elliott Gluckman, McCandlish Holton PC, Richmond, VA, for Plaintiff.

Jonathan Tyler Lucier, US Attorney Office, Richmond, VA, for Defendants.

MEMORANDUM OPINION

M. Hannah Lauck, United States District Judge

This matter comes before the Court on two motions:

(1) Defendants United States Citizenship and Immigration Services ("USCIS") and Kenneth T. Cuccinelli's (collectively, the "Defendants") Motion for Summary Judgment (the "USCIS Motion"), (ECF No. 18); and,

(2) Plaintiff G.D USA, Inc.’s ("G.D USA") Motion for Summary Judgment (the "G.D USA Motion"), (ECF No. 23).

Both Parties timely responded to the Cross-Motions for Summary Judgment, (ECF Nos. 25, 26), and both Parties replied, (ECF Nos. 27, 28).

On May 1, 2019, G.D USA filed with USCIS an L-1B Petition (the "L-1B Petition") on Form I-129 on behalf of a senior technician, Ahmet U.,¹ seeking an L-1B visa for Ahmet U. to join G.D USA's domestic workforce. (Notice Oct. 23, 2019 Admin. R. ("Record")² at 3, 20–44, ECF Nos. 20–22.)³ G.D USA sought to employ Ahmet U., who currently works with G.D USA's Turkish affiliate, as a Senior Assembly Technician responsible for, among other things, servicing G.D USA's cigarette packing machines. (R. 192, 197.) Due to the nature of the L-1B visa process, G.D USA bore the burden of proving the L-1B visa requirements, including that Ahmet U. had the requisite "specialized knowledge" under 8 U.S.C. § 1101(a)(15). (R. 32, 34, 45; see also Compl. Ex. 3 "USCIS Policy Memorandum, PM-602-0111, L-1B Adjudications Policy" 5, ECF No. 1-3.)⁴

USCIS denied the petition and G.D USA filed this suit. The Parties’ dispute whether USCIS improperly assessed the evidence supporting the L-1B Petition. In considering L-1B visa petitions, USCIS weighs the evidence under the preponderance of the evidence standard. The Court, then, will consider whether substantial evidence exists to support USCIS's finding that G.D USA did not prove Ahmet U.’s purported "specialized knowledge" by a preponderance of the evidence.

These matters are ripe for adjudication. The Court dispenses with oral argument

531 F.Supp.3d 972

because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.⁵ For the reasons stated below, the Court will grant the USCIS Motion for Summary Judgment and deny the G.D USA Motion for Summary Judgment.

I. Factual and Procedural Background

G.D USA's allegations arise out of USCIS's denial of its L-1B petition (the "L-1B Petition") filed on behalf of a senior technician, Ahmet U., who currently works with G.D USA's Turkish affiliate. (R. 3; 20–44.) At issue is USCIS's decision denying G.D USA's L-1B petition based on a finding that the record lacked evidence to support that Ahmet U. had the requisite "specialized knowledge."

G.D USA claims that USCIS's decision denying the L-1B Petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law because USCIS "failed to follow ... its own policy memorandum on L-1B adjudication, invented novel standards for specialized knowledge such as an overly-broad requirement that a person need to be an ‘expert in his company or industry,’ and ignored the copious evidence of economic need for [Ahmet U.’s] specialized knowledge which by itself should have been sufficient to meet the standard for L-1B." (Compl. ¶ 9, ECF No. 1.) USCIS counters that, in employing the 2015 Policy Memo's definition of "specialized knowledge," it concluded that "the evidence G.D USA presented was insufficient to prove that [Ahmet U.] had been employed in a position abroad that involved ‘specialized knowledge.’ " (Mem. Supp. USCIS Mot. Summ. J. 20, ECF No. 19.) USCIS maintains that it correctly weighed the evidence under the preponderance of the evidence standard and that G.D USA "merely disagrees with the USCIS's weighing of that evidence." (Id. 28.)

A. Factual Background ⁶

G.D USA operates as the "leading supplier of high-technology machinery for cigarette making and packing, filter production, and other consumer products." (R. 46, 197.) G.D USA is a subsidiary of the Coesia Group, "a multinational group of innovation-based industrial solutions companies based in Italy." (R. 46, 197.) Since its founding in 1978, G.D USA "has grown into a company with 165 employees

531 F.Supp.3d 973

at its 130,000 square-foot facility in metropolitan Richmond, Virginia." (R. 35, 46.) G.D USA sells and services a line of Italian-designed machines which automate production of cigarettes and other consumer products known as "G.D machines." (R. 46, 115–31.) G.D USA can customize its machines to accommodate the consumer's product and desired output, making for vast differences between machines and their component parts. (R. 470–71.) G.D USA's machines are protected by United States patents. (R. 133–38.)

Recently, G.D USA reported a significant loss in its "only employees who have reached [senior] level of expertise" due to retirement. (R. 47.) For example, in 2019 alone, G.D USA paid "almost 14,000 hours on overtime pay due to insufficient senior-level staffing" and "lost nine mechanical technicians in the past 5 years." (R. 45, 192.) G.D USA states that these senior-level technicians "install, tune, test and protocol machines." (R. 192.) Senior-level technicians also support the training of lower-level technicians and trainees. (R. 192.) In its L-1B Petition, G.D USA presented training as a critical aspect of its senior technician workforce because G.D USA "cannot simply hire experienced technicians from our competition because they are skilled on an entirely different line of machines and are completely lost and flummoxed when asked to perform on our line of Italian-designed and -engineered machines." (R. 474.) Because of its "dire" lack of "a new crew of skilled technicians," G.D USA claims to be losing its "competitive edge" in the industry. (R. 193, 496.) G.D USA identified Ahmet U., a senior technician working at its Turkish affiliate, ("G.D Turkey"), as a potential Senior Assembly Technician to support its technician workforce. (R. 200.)

G.D USA brings this one-count complaint following USCIS's denial of the L-1B Petition it filed on behalf of Ahmet U., alleging that USCIS's denial was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law in violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2)(A). (Compl. ¶ 62.) Generally, G.D USA alleges that USCIS's denial violated the APA because USCIS "applied heightened and improper legal standards; failed to consider all record evidence; and reached factual conclusions unsupported by any evidence in the record." (Id. ¶¶ 64–65.) G.D USA requests that the Court vacate USCIS's denial of the L-1B Petition, order USCIS to approve the L-1B Petition, and order USCIS to adjudicate subsequently G.D USA's L-1B petitions. (Id. 17.)

B. Administrative Record ⁷ and Procedural Background

On May 1, 2019, G.D USA filed the L-1B Petition on Ahmet U.’s behalf with USCIS on Form I-129.⁸ (R. 3; 20–44.)

531 F.Supp.3d 974

The L-1B Petition sought an L-1B nonimmigrant classification visa for Ahmet U. as an intra-company transferee who would work for G.D USA "in a capacity that ... involves specialized knowledge" under 8 U.S.C. § 1101(a)(15) as a Senior Assembly Technician. (R. 32, 34, 45.)

The Parties’ disagree about the legality of USCIS's review of G.D USA's evidence in support of the L-1B Petition. On August 13, 2019, USCIS denied the L-1B Petition, finding that (1) the record did not "sufficiently identify or describe the actual special ... knowledge possessed by [Ahmet U.];" and, (2) the record did not show "how [Ahmet U.’s] experience or duties with [G.D Turkey] enable[d] him to acquire knowledge that is special ...." (R. 386–87.) G.D USA argues that it submitted evidence in support of the L-1B Petition that "show[s] that [Ahmet U.] obtained specialized knowledge of G.D[ ] [USA's] unique, complex, and patented machines through several years of training by G.D factory experts, which [Ahmet U.] used continuously since April 2009 in his job as Mechanical Technician with G.D Turkey, and which he would continue to use for G.D USA." (Mem. Supp. G.D USA Mot. Summ. J. 9.)

Below, the Court recounts USCIS's review of the L-1B Petition through each step of agency review, including: (1) Initial L-1B Petition and Evidence in Support; (2) USCIS's Request for Evidence (the "Agency RFE"); (3) G.D USA's Response to the Agency RFE; and, (4) USCIS's denial of the L-1B Petition.

1. Initial L-1B Petition and Evidence in Support

With its May 1, 2019 L-1B Petition, counsel for G.D USA submitted a letter dated April 30, 2019 that listed the following evidence:

1. G.D USA's letter from Greg Creel, G.D USA's Human

...