Serenity Info Tech, Inc. v. Cuccinelli

Decision Date20 May 2020
Docket NumberCIVIL ACTION NO. 1:20-cv-0647-AT
Citation461 F.Supp.3d 1271
Parties SERENITY INFO TECH, INC., Whiz Global, LLC, Keshav Consulting Solutions, Inc., Smartworks, LLC, Plaintiffs, v. Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services, Defendant.
CourtU.S. District Court — Northern District of Georgia

Bradley Bruce Banias, Wasden Banias, LLC, 1037 Chuck Dawley Blvd., Mount Pleasant, SC 29464, 843-410-9340, Fax: 843-577-7708, Email: brad@wasdenbanias.com, Carlos M. Polanco, III, Carlos M Polanco, 2521 Piedmont Road, NE, Suite 2225, Atlanta, GA 30324, 202-321-0770, Fax: 404-393-2837, Email: nycarlos@mac.com, for Plaintiffs Serenity Info Tech Inc., Whiz Global, LLC, Keshav Consulting Solutions Inc., Smartworks, LLC.

Bradley Bruce Banias, Wasden Banias, LLC, 1037 Chuck Dawley Blvd., Mount Pleasant, SC 29464, 843-410-9340, Fax: 843-577-7708, Email: brad@wasdenbanias.com, for Plaintiffs Tetrasoft Inc., PVK Corporation, TekLeaders Inc.

Trishanda L. Treadwell, Department of Justice--EOUSA, Richard Russell Federal Building, 75 Ted Turner Drive, SW, Suite 600, Atlanta, GA 30303, 404-581-6255, Email: trish.treadwell@usdoj.gov, for Defendant Kenneth T. (Ken) Cuccinelli Senior Official Performing the Duties of the Director, U. S. Citizenship and Immigration Services.

ORDER

AMY TOTENBERG, UNITED STATES DISTRICT JUDGE

This Administrative Procedure Act ("APA") action for judicial review is before the Court on Plaintiffs' Motion for Partial Summary Judgment [Doc. 19.] Defendant U.S. Citizenship and Immigration Services ("USCIS," or the "Agency") filed a Response on March 27, 2020. (Doc. 25.) Plaintiffs filed a Reply on April 3, 2020. (Doc. 27.) Pursuant to the Court's Scheduling Order which adopted the Parties' Joint Preliminary Report and Discovery Plan (Doc. 16 ), the Parties agreed to first brief the issues that do not require review of a certified administrative record prior to the submission of such record. For the reasons that follow, Plaintiffs' Motion for Partial Summary Judgment is GRANTED .

I. Background
A. Plaintiffs' Applications

Plaintiffs are all companies which petition for H-1B visas. 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).

Plaintiffs characterize themselves as "information technology consulting services" companies. (E.g., In re Form I-129 Petition of Serenity Infotech Inc. , Decision at 1, No. WAC1914350517 (U.S. Citizenship and Immig. Serv. Dec. 12, 2019) ("Serenity Denial"), Doc. 19-2 at 1.) Plaintiffs apparently "do[ ] not produce any software products ... but rather contract[ ] with numerous outside companies in order to supply these companies with employees to fulfill specific staffing needs or complete service contracts." (Id. at 2.)

Plaintiffs' applications were each denied in 2019. (See generally Doc. 19-2.) Plaintiff Serenity Info Tech, Inc.'s ("Serenity") application was denied for two reasons. First, the Agency determined that Serenity failed to meet the definition of "United States employer" under the governing regulation. (Serenity Denial at 3, Doc. 19-2 at 3.) Second, the Agency determined that Serenity failed to meet its burden of showing services in a specialty occupation because it failed to "demonstrate that [it has] specific and non-speculative qualifying assignments in a specialty occupation for the entire time requested on the petition." (Id. at 6.) Plaintiffs contend that these denial reasons are generally common among the Agency's reasons for denying their Form I-129 applications.

B. Regulatory History

Under the Immigration and Nationality Act ("INA"), highly skilled, nonimmigrant workers can come to the United States on a temporary basis (up to three years) to perform services for a sponsoring "employer" in a "specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b), INA § 101. 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). The INA lists the requirements for a "specialty occupation" as follows:

(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). The Agency's regulations further define 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). Additionally, under the governing regulation, "[t]o qualify as a specialty occupation, the position must meet one of" four additional regulatory requirements, referenced later in this Order. 8 C.F.R. § 214.2 (h)(4)(iii)(A).

When filing an H-1B petition, sponsoring employers must first submit a Labor Condition Application ("LCA") to the Department of Labor. See 8 U.S.C. § 1182(n) ; see also 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 the employer will offer wages at the level for similarly situated domestic employees, will provide working conditions that will not adversely affect these domestic employees, that there is not a labor dispute for this classification of employees and that any bargaining representative has received notice of the LCA. 8 U.S.C. § 1182(n)(1), INA § 212. The LCA also requires specifications about the number of workers sought, their employment classification, and their wage rate and conditions. Id.

"In 1991, DOL engaged in formal rulemaking to define who is an "employer" that can apply for a Labor Condition Application. ITServe All., Inc. v. Cissna , No. CV 18-2350 (RMC), 443 F.Supp.3d 14, 26–27 (D.D.C. Mar. 10, 2020), appeal docketed, No. 20-5132 (D.C. Cir. May 12, 2020) (citing DOL Advanced Notice of Proposed Rulemaking, Alien Temporary Employment Labor Certification Process, 56 Fed. Reg. 11705-01 (March 20, 1991) ). USCIS's predecessor agency, Immigration and Naturalization Service, or INS, "adopted the definition of ‘employer’ used by DOL ... and CIS has made no change to the definition." Id. at 9 (citing INS Final Rule, Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56 Fed. Reg. 61111, 61121 (Dec. 2, 1991) ; 8 C.F.R. § 214.2(h)(4)(ii)). "Neither the underlying statute nor the regulation has been amended in relevant part since 1991." Id.

Under the INS Final Rule, "United States employer" is defined as follows:

United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.

8 C.F.R. § 214.2(h)(4)(ii).

The question of how petitioners who contract to staff visa beneficiaries at third party worksites may satisfy the burden of showing that they are "employers" has a somewhat protracted regulatory history.

1. Guidance by USCIS's Predecessor Agency

In the 1990's, USCIS's predecessor agency, the Immigration and Naturalization Service (INS), "in accord with the law, simplified and streamlined the application and approval process" for H-1B Visas. ITServe , No. CV 18-2350 (RMC), 443 F.Supp. at 19. The logic behind this move was that unlike "an employer seeking an employment-based immigrant visa in order to hire a foreign worker who plans to stay in this country," applicants for non-immigrant visas such as the H-1B, are seeking employees who "are planning to work here on a temporary basis." Id. at 21 (emphasis in original).

INS issued three relevant guidance memos which streamlined the H-1B process: (1) Contracts Involving H-1B Petitioners , (June 6, 1995); (2) Supporting Documentation for H-1B Petitions (Nov. 13, 1995); and (3) Interpretation Of The Term ‘Itinerary’ Found in 8 CFR 214.2(h)(2)(i)(B) As It Relates To The H-1B Nonimmigrant Classification (Dec. 29, 1995). The Court refers to these collectively as the "1995 INS Memoranda."

The first of these memos "permitted H-1B visa adjudicators to ‘request and consider any additional information deemed appropriate to adjudicate a petition,’ including specifically third-party contracts, on a case-by-case basis." ITServe , No. CV 18-2350 (RMC), 443 F.Supp.3d at 23 (citing INS June 6, 1995, supra ). The second "clarified that it ‘should not be a normal requirement’ for applicants to submit third-party contracts," but rather "only in those cases where the officer can articulate a specific need for such documentation." Id. at 23 (citing INS Nov. 13, 1995, supra ). Crucially, "[t]he mere fact that a petitioner is an employment contractor [was] not a reason to request such contracts." Id.

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