Open Soc'y Inst. v. U.S. Citizenship & Immigration Servs.

Decision Date07 September 2021
Docket NumberCivil Action 19-3620 (RDM)
CourtU.S. District Court — District of Columbia
PartiesOPEN SOCIETY INSTITUTE, Plaintiff, v. U.S. CITIZENSHIP & IMMIGRATION SERVICES, Defendant.
MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

Open Society brings this action to challenge a determination by the United States Customs and Immigration Service (“USCIS”) that Open Society did not qualify for an exemption from the otherwise applicable annual quota on H-1B visas. Dkt. 11. That exemption applies to “nonprofit research organizations, ” 8 U.S.C § 1184(g)(5)(B), defined under the relevant regulations as a nonprofit “that is primarily engaged in basic research and/or applied research, ” 8 C.F.R. § 214.2(h)(19)(iii)(C). Open Society maintains that on over a dozen prior occasions USCIS found that Open Society satisfied this standard but that in 2020 the agency reversed course without sufficient explanation or sound reason. Dkt. 11 at 3-4 (Am. Compl. ¶¶ 9-10); Dkt. 41-7 at 14 (CAR 789).

USCIS's decision at issue in this case, according to Open Society violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. for three reasons: (1) the decision rests on a misinterpretation of the agency's own regulations; (2) even accepting that interpretation, the administrative record does not support the agency's determination; and (3) the agency failed adequately to explain the change in its position with respect to Open Society's status as a “nonprofit research organization.” Dkt. 11 at 4-5 (Am. Compl. ¶¶ 11-15). USCIS now moves for summary judgment, Dkt. 23, and Open Society responds with its own cross-motion for summary judgment, Dkt. 29. Open Society also moves for leave to supplement the administrative record with evidence relating to USCIS's adjudication of the prior petitions for cap-exempt H-1B visas, which, Open Society argues, supports its APA claim in this case. Dkt. 30.

As explained below, the Court is unpersuaded by Open Society's arguments. The Court, accordingly, will GRANT USCIS's motion for summary judgment, Dkt. 23, and will DENY Open Society's cross-motion for summary judgment, Dkt. 29, and motion to supplement the administrative record, Dkt. 30.

I. BACKGROUND
A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., “govern[s] temporary work authorization” for noncitizens seeking to work in the United States. Overdevest Nurseries, L.P. v. Walsh, 2 F.4th 977, 980 (D.C. Cir. 2021). At issue in this case is a specific kind of temporary work authorization, “the H-1B visa program, which allows American companies to employ aliens in certain ‘specialty occupations.' Nat'l Ass'n of Mfrs. v. Dep't of Lab., 159 F.3d 597, 598 (D.C. Cir. 1998) (quoting 8 U.S.C. § 1101(a)(15)(H)(i)(b)); see also 8 C.F.R. § 214.2(h)(1)(ii)(B).

The INA “permits employers to petition for ‘H-1B' nonimmigrant visas on behalf of” noncitizen beneficiaries. Vision Builders, LLC v. USCIS, No. 19-CV-3159, 2020 WL 5891546, at *1 (D.D.C. Oct. 5, 2020). “To obtain an H-1B visa, the employer bears the burden of showing [USCIS], which ‘makes the determination under the INA on whether to grant visa petitions,' that the proposed role is a ‘specialty occupation' and that the beneficiary meets the role's requirements.” Id. (first quoting 20 C.F.R. § 655.715, then quoting 8 U.S.C. § 1361). Access to H-1B visas is limited, however, as the INA caps [t]he total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year” under the H-1B program at 65, 000. 8 U.S.C. § 1184(g)(1)(A).

This annual quota does not apply to those who fall into one of three categories. Id. § 1184(g)(5). The first category covers individuals who are “employed (or ha[ve] received an offer of employment) at an institution of higher education, ” while the third includes those who have “earned a master's or higher degree from a United States institution of higher education.” Id. § 1184(g)(5)(A), (C). The second category—the one at issue in this case—provides that the 65, 000-person annual quota for H-1B visas, id. § 1184(g)(1)(A), does not apply to those who are “employed (or ha[ve] received an offer of employment) at a nonprofit research organization or governmental research organization, ” id. § 1184(g)(5)(B).

Congress adopted this cap exemption for “nonprofit research organization[s] in 2000, see American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313, § 103, 114 Stat. 1251, but left to the implementing agency—then, the Immigration and Naturalization Service (“INS”)—the task of further defining that phrase.[1] Under the resulting regulations, a “nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research.” 8 C.F.R. § 214.2(h)(19)(iii)(C) (defining that term for purposes of an exemption from certain H-1B visa application fees); see also id. § 214.2(h)(8)(iii)(F)(3) (incorporating this definition for purposes of the [c]ap exemptions” for H-1B visas). An organization qualifies as a “nonprofit, ” in turn, if it is “defined as a tax exempt organization under the Internal Revenue Code or “has been approved as a tax exempt organization for research or educational purposes by the Internal Revenue Service.” 8 C.F.R. § 214.2(h)(19)(iii)(A)-(B); see also Id. § 214.2(h)(8)(iii)(F)(3). “Basic research” and “applied research” are defined as follows:

Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.

Id. § 214.2(h)(19)(iii)(C); see also Id. § 214.2(h)(8)(iii)(F)(3).

In defining these terms, the INS “drew on generally accepted definitions of the terms as well as definitions contained in the regulations of the Internal Revenue Service and the Small Business Administration.” Petitioning Requirements for the H-1B Nonimmigrant Classification Under Public Law 105-277, 65 Fed. Reg. 10678, 10679 (Feb. 29, 2000). The INS “also consulted with the Department of Labor and nonprofit and academic organizations for assistance in developing the definitions.” Petitioning Requirements for the H-1B Nonimmigrant Classification Under Public Law 105-277, 63 Fed. Reg. 65657, 65658 (Nov. 30, 1998).

B. Factual and Procedural Background

Open Society describes itself as “a private operating research and grant-making foundation that develops and implements a range of programs to foster the development of open societies around the world.” Dkt. 11 at 7 (Am. Compl. ¶ 25). Open Society “periodically seeks to employ foreign workers and makes regular use of various immigrant and nonimmigrant visa types, ” including the H-1B visa. Id. at 10 (Am. Compl. ¶¶ 36-37).

According to Open Society, it “has been able to obtain cap-exempt H-1B visas for many years, ” first under the exemption for “nonprofits with ties to institutes of higher education” and, then, after “notice and comment rulemaking that tightened that exemption, ” as a “nonprofit research organization.” Dkt. 29-1 at 13; see also Dkt. 11 at 10-11 (Am. Compl. ¶¶ 38-46). After Open Society “began filing H-1B petitions [] under the separate exemption” for “nonprofit research organization[s], ” USCIS granted twelve “petitions throughout 2018 without raising any questions at all regarding [Open Society's] claim to that cap exemption.” Dkt. 11 at 10 (Am. Compl. ¶ 41); see also Dkt. 23-1 at 18 (noting that the agency “acknowledged that previous petitions by [Open Society] claiming this cap exemption had been granted”). Open Society argues that the evidence it submitted in support of all but one of those petitions “was much less robust than the record” it submitted to in support of the petition at issue in this case. Dkt. 29-1 at 13-14. USCIS approved one 2018 petition, however, only after “requesting additional information to show that Plaintiff was ‘primarily engaged' in research, ” as required by 8 C.F.R. § 214.2. Id. at 14. But when Open Society responded with “substantial additional evidence that closely tracks the administrative record here, ” USCIS approved that petition as well. Id.

On February 28, 2019, Open Society filed the petition at issue in this case, seeking an H-1B visa on behalf of an individual the organization sought to employ as an associate general counsel. Dkt. 41-2 at 60 (CAR 70); see generally Dkt. 41-2 at 57-73 (CAR 67-83). Open Society filed the petition with USCIS's California Service Center, Dkt. 41-2 at 74 (CAR 125), which responded with a request for additional evidence that Open Society was “a nonprofit research or educational organization” and that it was “primarily engaged in basic and/or applied research, ” Dkt. 41-6 at 120 (CAR 756). Open Society submitted additional evidence on both questions. See Dkt. 41-7 at 24-166 (CAR 799-940); Dkt. 41-8 at 1-193 (CAR 941-1135); Dkt. 41-9 at 1-180 (CAR 1136-1321).

On June 7, 2019, the California Service Center issued its decision rejecting Open Society's reliance on the H-1B cap...

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