Parcha v. Cuccinelli
| Decision Date | 07 February 2020 |
| Docket Number | CIVIL ACTION NO. 4:20-CV-015-SDJ |
| Parties | VENKATA SATYA VISHNU VARDHAN PARCHA, SUNEETH PARCHA, K.P., and D.D.P. v. KENNETH T. (KEN) CUCCINELLI, SENIOR OFFICIAL PERFORMING THE DUTIES OF THE DIRECTOR, U.S. CITIZEN AND IMMIGRATION SERVICES |
| Court | U.S. District Court — Eastern District of Texas |
Before the Court is Plaintiffs Venkata Satya Vishnu Vardhan Parcha, Suneeth Parcha, K.P., and D.D.P.'s Emergency Motion for a Temporary Restraining Order or Preliminary Injunction. (Dkt. #4). The Court, having considered the Motion, the government's response, the supplemental briefing, the applicable law, and the record, DENIES the Motion.
Venkata Parcha and his family are citizens of India, where Parcha1 was employed as a senior software engineer for AppLabs Technologies Pvt. Ltd., a computer software testing company. In 2011, AppLabs submitted a petition to the United States Citizenship and Immigration Services ("USCIS") for an "L-1B" nonimmigrant visa to transfer Parcha and his family to one of its American offices. See 8 U.S.C. § 1101(a)(15)(L) (). The USCIS approved the petition shortly thereafter, allowing Parcha to receive his visa and move to the United States with his family.
In 2012, while working for AppLabs, Parcha received an offer of employment from Unified Systems, Inc. ("Unified Systems"), an information technology staffing company. On May 8, 2012, Unified Systems submitted a petition to USCIS for an "H-1B" nonimmigrant visa to allow Parcha to work for the company. See id. § 1101(a)(15)(H)(i)(b) (). However, while that H-1B visa petition was pending, AppLabs petitioned for and received an extension of Parcha's L-1B visa. In November 2012, Unified Systems again petitioned for, and this time received, an H-1B visa on Parcha's behalf. With that, Parcha finally accepted Unified System's offer and began working for the company.
Parcha later received another offer of employment, this time from an international bank. On November 12, 2015, the bank petitioned for and later received an H-1B visa, allowing Parcha to begin his work for the bank. In 2016, the bank also submitted to the USCIS a petition for an immigrant visa through form I-140, "Immigrant Petition for Alien Workers," which is a part of the application process to obtain an immigrant visa that allows the beneficiary to work in the United States on a permanent, rather than temporary, basis. The USCIS approved the bank's form.2
Though Parcha no longer worked for Unified Systems, his time at the company became an issue. In April 2016, the company's owners were indicted for several federal crimes, including visa fraud and conspiracy to commit visa fraud, in violation of 18 U.S.C. §§ 371 and 1546(a), perpetuated by using nearly a dozen shell companies to file hundreds of fraudulent H-1B petitions and other related documentation. (Dkt. #1-1). One of the owners, Raju Kosuri, pleaded guilty to visa fraud and conspiracy to commit visa fraud and provided sworn statements as to the scope of the visa-fraud scheme. (Dkt. #1-2). In his sworn statement, Kosuri admitted that:
As the former owner of EcomNets, Inc., I [Kosuri] along with other co-conspirators filed fraudulent and fictitious H-1B CAP petitions with USCIS . . . on behalf of shell companies created for this purpose. The shell companies involved in filing fraudulent H-1B CAP petitions included . . . Unified Systems, Inc. . . . The H-1B CAP petitions, LCAs, and supporting documentation further indicated there was employment available and the beneficiaries of those petitions would work at the following physical addresses: 1 EcomNets Way, Danville, VA . . . In fact, there was no work available at these addresses, and all of the H-1B CAP petitions filed by the above referenced organizations between 2010 and 2016 were fraudulent.
(Dkt. #5-3). The indictments prompted the USCIS to review Parcha's 2012 H-1B visa petition filed by Unified Systems on his behalf.
After conducting a review of Parcha's H-1B visa petition, the USCIS determined that the petition misrepresented material facts and, on August 28, 2018, issued a Notice of Intent to Revoke ("NOIR") the visa on that basis. See 8 C.F.R. § 214.2(h)(11)(iii)(A). After the 33-day response window closed without any response from Parcha, the USCIS revoked Parcha's H-1B visa based on the misrepresentations.
On November 28, 2018, Parcha and several other former employees of Kosuri companies filed a lawsuit against the acting director of the USCIS in the District of South Carolina.3 The plaintiffs alleged, among other things, that the USCIS did not provide adequate notice of the revocations at issue because the NOIRs were mailed to the defunct Kosuri companies rather than the visa holders. In response, the USCIS agreed to reopen the revocations, reissue the NOIRs to the visa holders themselves, (Dkt. #5-4), and enter an injunction prohibiting it from taking any adverse legal action on the basis of the revocations at issue, including denial of pending visa petitions throughout the duration of the lawsuit, (Dkt. #5-7). Parcha responded to the NOIR through counsel with written argument and supporting documentation. (Dkt. #1-5). But on December 18, 2019, the USCIS again revoked Parcha's H-1B visa on the basis ofmisrepresentation of material facts. (Dkt. #5-5). On December 20, 2019, Parcha lost his work authorization and his job. Parcha and his wife remain unemployed.
On January 7, 2020, Parcha, along with his wife and two children as dependents, filed the instant action. (Dkt. #1). The Plaintiffs bring two claims under the Administrative Procedure Act ("APA"), for arbitrary-and-capricious revocation of Parcha's H-1B visa and for unreasonable delay in adjudicating his Parcha's H-1B visa petition. On January 10, 2020, the Plaintiffs filed an emergency motion for a temporary restraining order or preliminary injunction, requesting that the Court delay the legal effect of the USCIS's revocation of Parcha's H-1B visa and compel the USCIS to adjudicate his pending H-1B visa petition. (Dkt. #4). The government responded in opposition. (Dkt. #5). After a hearing on the motion, the Court ordered the parties to provide supplemental briefing on issues regarding the Plaintiffs' ability to bring the claims. (Dkt. #12, #13).
Federal courts must resolve the "first and fundamental question" of jurisdiction before wielding the judicial power of the United States. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900)). The Plaintiffs have Article III standing to bring their unreasonable-delay and arbitrary-and-capricious revocation claims. Likewise, the Court has subject-matter jurisdiction over the Plaintiffs' APA claims under federal-question jurisdiction and is not stripped of that jurisdiction by 8 U.S.C. § 1252(a)(2)(B)(ii). See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 56, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (citing Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed. 2d 192 (1977)).
To establish Article III standing, a plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U.S. —, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). An injury in fact requires "'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id. (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130).
It is beyond dispute that, should the Court find an injury in fact, the injury is fairly traceable to the USCIS, as the agency authorized to adjudicate H-1B visa petitions and revoke H-1B visas, and is redressable by a favorable ruling from the Court, as authorized by the APA. See 5 U.S.C. § 706(1) (); id. § 706(2)(A) (). The crux of the inquiry, then, is whether the Plaintiffs can claim an injury in fact.
Parcha has asserted an injury in fact sufficient to establish Article III standing as to each of the claims. Parcha has suffered concrete, particularized economic harm arising from the revocation of his H-1B visa and the nonadjudication of his pending H-1B visa petition. Specifically, he has suffered lost wages because he was terminated upon revocation of his H-1B visa, and he continues to suffer lost wages and related economic hardship because he cannot regain employment or make related financial decisions due to nonadjudication of his H-1B visa petition. See, e.g., Clinton v. City of New York, 524 U.S. 417, 418, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (); Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (). Similarly, Parcha's wife and two children also assert facts sufficient to establish Article III standing because, as dependents whose visa status and financial status are tethered to Parcha's, the USCIS's revocation and nonadjudication have likewise inflicted economic and other related...
To continue reading
Request your trial