Innova Solutions, Inc. v. Baran, Case No. 17-cv-03674-VKD

• Decision Date: 08 August 2019
• Docket Number: Case No. 17-cv-03674-VKD
• Citation: 399 F.Supp.3d 1004
• Court: U.S. District Court — Northern District of California
• Parties: INNOVA SOLUTIONS, INC., Plaintiff, v. Kathy A. BARAN, Defendant.

399 F.Supp.3d 1004

INNOVA SOLUTIONS, INC., Plaintiff,

v.Kathy A. BARAN, Defendant.

Case No. 17-cv-03674-VKD

United States District Court, N.D. California, San Jose Division.

Signed August 8, 2019

Jonathan Roger Sturman, David M. Sturman, Law Offices of David M. Sturman, A.P.C., Encino, CA, for Plaintiff.

Joshua Samuel Press, United States Department of Justice, Elizabeth Kurlan, Office of Immigration Litigation-District Court Section, Washington, DC, for Defendant.

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT RE DILIP DODDA

Re: Dkt. Nos. 61, 62

VIRGINIA K. DEMARCHI, United States Magistrate Judge

The Immigration and Nationality Act ("INA") permits non-citizens to work in the United States on a temporary basis, if they are sponsored by an employer in a "specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b). Plaintiff Innova Solutions, LLC ("Innova") filed a Petition for a Nonimmigrant Worker ("Petition") on behalf of its intended beneficiary, Dilip Dodda, whom Innova planned to hire for a Programmer Analyst position.¹ The Petition was denied by the United States Citizenship and Immigration Services ("USCIS") on the ground that Innova failed to establish that the position was a "specialty occupation" under the INA and related regulations. Pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 and § 706, Innova now seeks judicial review of that decision, contending that USCIS² acted arbitrarily and capriciously and abused its discretion.

The matter is now before the Court on the parties' cross-motions for summary judgment.³ Having considered the parties' respective moving and responding papers, the presentations of counsel at the January 8, 2019 hearing, and the record in this case, the Court denies Innova's motion for summary judgment and grants the Director's cross-motion for summary judgment.⁴

I. BACKGROUND

Innova is a for-profit company based in Santa Clara, California that provides information technology services to businesses in a variety of industries. The company says that it focuses primarily on development and engineering services, cloud services, migration services, data management and mobility management. AR⁵ 36.

Innova planned to employ Mr. Dodda as a Programmer Analyst from October 1, 2017 to August 17, 2020. Id. at 27. Mr. Dodda holds a bachelor's degree in Electrical & Electronics Engineering from Jawaharlal Nehru Technological University in India. Id. at 39, 79. At the time Innova offered him the Programmer Analyst position, Mr. Dodda had about a decade of computer programming experience. Id. at 39, 83-84. Although Mr. Dodda was to be Innova's employee for the entire period of employment, Innova intended to assign him to work with one of its clients, Change Healthcare Operations, LLC ("Change Healthcare"). Specifically, Mr. Dodda would provide consulting services on Change Healthcare's Patient Billing and Payment System ("PBPS"). According to Innova, PBPS allows healthcare providers to upload healthcare billing and payment information, processes digital documents that can be archived and queued for printing, and provides means for patients to pay for healthcare services online. Id. at 37-38, 76. As a Programmer Analyst, Mr. Dodda was to be involved in the design, implementation and testing of PBPS, and in that process, he would use several programming languages, including C++, ASP, XML, SOAP, JavaScript, CSS, .NET and HTML. Id. at 37.

On April 3, 2017, Innova submitted the Petition, requesting an H-1B visa for Mr. Dodda as a nonimmigrant working in a "specialty occupation" pursuant to INA, 8 U.S.C. § 1101(a)(15)(H)(i)(b). Id. at 22-102. Innova's supporting documents included a letter from its Senior Vice President of Human Resources and Operations, as well as a letter from Change Healthcare, identifying Mr. Dodda's duties and responsibilities as a Programmer Analyst. Innova also submitted information about the company's profile, as well as documents concerning Mr. Dodda's education and work experience. Id. at 36-102.

On September 25, 2017, USCIS issued a Request for Evidence ("RFE"). In the RFE, USCIS observed: "From your description of the beneficiary's duties, it appears that the beneficiary will perform many of the duties of a Computer Programmer as listed in the Occupational Outlook Handbook ("OOH") (a publication of the U.S. Department of Labor)." Id. at 106. The agency went on to state that "[t]he OOH indicates that a Computer Programmer is an occupation that does not require a bachelor's level of education or higher or its equivalent in a specific specialty as a normal minimum for entry into the occupation." Id. Further noting that Innova's Labor Condition Application ("LCA") certified that the position in question was a "Wage Level I" entry position, USCIS concluded that Innova did "not show[ ] that the position offered to the beneficiary is a specialty occupation." Id. The agency gave Innova an opportunity to submit additional evidence, including an explanation of Mr. Dodda's duties and the percentage of time devoted to each duty, as well as "[a]n explanation of what differentiates your products and services from other employers in the same industry and why a bachelor's level of education in a specific field of study is a prerequisite for entry into the proffered position." Id. at 106-07. With respect to this latter category of information, Innova was instructed to "[b]e specific and provide documentation to support any explanation of complexity." Id. at 107.

In its RFE response, Innova described the duties of the proffered position as follows:

Design [T]est [S]cript (20% — 8 hours per week)

• Design test plans, scenarios, scripts or procedures.

• Develop testing programs that address areas such as database impacts, software scenarios, regression testing, negative testing, error or bug retests, or usability.

• Update automated test scripts to ensure correctness.

• Install and configure recreations of software production environments to allow testing of software performance.

• Design or develop automated testing tools.

• Visit beta testing sites to evaluate software performance.

• Evaluate or recommend software for testing or bug tracking.

Conduct System Testing (25% — 10 hours per week)

• Test system modifications to prepare for implementation.

• Plan test schedules or strategies in accordance with project scope or delivery dates.

• Document test procedures to ensure replicability and compliance with standards.

• Install, maintain or use software testing programs.

• Monitor program performance to ensure efficient and problem-free operations.

• Conduct historical analyses of test results.

Perform Code Review (35% — 14 hours per week)

• Document software defects, using a bug tracking system, and report defects to software developers.

• Identify, analyze, and document problems with program function, output, online screen or content.

• Monitor bug resolution efforts and track successes.

• Create or maintain databases of known test defects.

• Review software documentation to ensure technical accuracy, compliance, or completeness, or to mitigate risks.

• Conduct software compatibility tests with programs, hardware, operating systems, or network environments.

• Identify program deviance from standards, and suggest modifications to ensure compliance.

• Perform initial debugging procedures by reviewing configuration files, logs, or code pieces to determine breakdown source.

Coordinate and provide technical support to project team members (20% — 8 hours per week)

• Participate in product design reviews to provide input on functional requirements, product designs, schedules, or potential problems.

• Develop or specify standards, methods, or procedures to determine product quality or release readiness.

• Investigate customer problems referred by technical support.

• Provide feedback and recommendations to developers on software usability and functionality.

• Collaborate with field staff or customers to evaluate or diagnose problems and recommend possible solutions.

• Provide technical support during software installation or configuration.

Id. at 114-15. Additionally, in describing Mr. Dodda's anticipated duties, Innova stated that his daily activities would include writing test scripts and performing code reviews to check for uniform coding standards and adherence to all aspects of the engineering process. If Mr. Dodda's testing and code review revealed bugs or other issues, he would bring them to his supervisor's attention. For any issues that could be fixed, Mr. Dodda would write the code himself. However, if the problem was intrinsic to the sequence of code and could not be corrected, then Mr. Dodda's supervisor would send the coding sequence back to the coding team. Id. at 114. In explaining why the position at issue required at least a bachelor's degree, Innova argued:

[Mr. Dodda's] work as a Programmer Analyst requires at least a Bachelor's Degree in Electronics Engineering or related. Only someone with an education in this field is able to understand the detailed code involved in computer programming. To properly test any component of the PBPS Platform, a Programmer Analyst must understand the whole system, from back- to front-end. The ability to write scripts using a variety of testing tools and frameworks can only be acquired through the formalized schooling that Mr. Dodda has undertaken. In his work on the project, Mr. Dodda uses and must be familiar with the following: C++, ASP, XML, SOAP, JavaScript, CSS, .NET, and HTML.

Id. at 113.

In processing Innova's Petition, USCIS looked to the OOH and found that the Programmer Analyst position fell within the OOH's occupational classification for Computer Programmers. On December 8, 2017, USCIS denied the Petition, concluding that Innova failed to establish that the Programmer Analyst position is a "specialty occupation." AR 2-10. Innova contends that USCIS failed to properly consider the evidence and did not articulate any reasonable basis for its decision, and that the...