Stellar IT Sols., Inc. v. U.S. Citizenship & Immigration Servs.

• Decision Date: 19 November 2018
• Docket Number: Civil Action No.: 18-2015 (RC)
• Parties: STELLAR IT SOLUTIONS, INC. and KARTIK KRISHNAMURTHY, Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
• Court: U.S. District Court — District of Columbia

STELLAR IT SOLUTIONS, INC. andKARTIK KRISHNAMURTHY, Plaintiffs, v. UNITED STATES CITIZENSHIP ANDIMMIGRATION SERVICES, Defendant.

Civil Action No.: 18-2015 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

November 19, 2018

Re Document No.: 2

MEMORANDUM OPINION

GRANTING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiff Kartik Krishnamurthy, a citizen of India, has lived in the United States legally since 2011 as the holder of an H-1B visa, a status granted to foreign citizens employed in "specialty occupation[s]." 8 U.S.C. § 1101(a)(15)(H)(i)(b). Last year, Mr. Krishnamurthy's employer, Plaintiff Stellar IT Solutions, Inc., submitted a petition on his behalf for an extension of his visa based on a change in his previously approved employment. After Defendant, the United States Citizenship and Immigration Services ("USCIS"), denied the petition, Stellar IT filed an appeal with USCIS's Administrative Appeals Office ("AAO"). But while he awaits a decision from the AAO, Mr. Krishnamurthy is left without lawful immigration status, and if he does not leave the country by November 27, 2018, he risks being deemed inadmissible for the next three years. Mr. Krishnamurthy and Stellar IT therefore initiated this lawsuit, asking the Court to ultimately set aside USCIS's denial of the H-1B petition as "arbitrary" and "capricious" under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(A). Presently before the Court, however, is solely their motion for a preliminary injunction that would postpone the effectiveness of USCIS's decision and allow Mr. Krishnamurthy to remain in the United States while the lawsuit is pending.

There are multiple reasons to approach this request with caution: a preliminary injunction is considered an extraordinary form of relief; judicial intervention is generally disfavored when administrative remedies have not been exhausted; and arbitrary and capricious review under the APA is highly deferential to agency decisions. Yet, for the reasons provided below, the Court concludes that it has jurisdiction to provide relief in this case and that limited judicial intervention is warranted. Plaintiffs have shown a strong likelihood of success on the merits, as USCIS's reasoning for denying the H-1B petition is squarely contradicted by the record and ignores critical evidence. Meanwhile, if the Court takes no action, Mr. Krishnamurthy is likely to suffer irreparable harm in that he will be forced to leave the country for an indefinite period of time.

Accordingly, the Court grants Plaintiffs' motion in part, and enters an order staying the effectiveness of USCIS's denial of the visa petition while Stellar IT's administrative appeal is pending. The Court's order applies retroactively to the date Mr. Krishnamurthy lost lawful immigration status, and as a result, Mr. Krishnamurthy will retain lawful H-1B status pursuant to 8 C.F.R. § 214.2(h)(2)(i)(H). It bears emphasis, however, that the relief the Court orders is narrow. The Court takes no position on the ultimate merits of the H-1B petition; it merely finds that USCIS's articulated reasoning for denying the petition likely does not comply with the APA. The ordered relief is also limited in duration. The parties are directed to file a joint status report with the Court within fifteen days of the AAO's disposition of the administrative appeal. At that juncture, the Court may reconsider whether judicial relief remains appropriate.

II. BACKGROUND

H-1B visas are a form of legal nonimmigrant status, meaning the visa holder is in the United States temporarily for a particular purpose, like tourism or to attend school. The purpose of the H-1B program is to permit American employers to temporarily hire foreign citizens to work in "specialty occupation[s]," 8 U.S.C. § 1101(a)(15)(H)(i)(B), which the Immigration and Nationality Act ("INA") defines as those requiring "theoretical and practical application of a body of highly specialized knowledge, and . . . 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," id. § 1184(h)(i)(1)(A)-(B).

After they choose to participate in the H-1B program and find a foreign worker they intend to hire, employers must complete a two-step process. First, they must submit to the Department of Labor ("DOL") a Labor Condition Application ("LCA") identifying the specialty occupation job being offered and verifying that they will comply with the requirements of the program, including paying the worker the mandated wage rate. See 8 U.S.C. § 1182(n)(1). Among other things, the LCA must also state the start and end dates of the foreign worker's employment, as well as the "place of employment," defined as "the worksite or physical location where the work actually [will be] performed by the H-1B . . . nonimmigrant," 20 C.F.R. § 655.715; id. § 655.730(c)(4)(iv)-(v).

Second, once the DOL certifies the LCA, the employer must then submit the LCA to USCIS with a Form I-129 petition requesting that the foreign worker—sometimes referred to as the petition's "beneficiary"—be classified as an H-1B nonimmigrant worker. See 8 C.F.R. § 214.2(h)(4). In this petition, the employer must establish that it has "an employer-employee relationship" with the beneficiary, "as indicated by the fact that [the employer] may hire, pay,fire, supervise, or otherwise control the work of" the beneficiary. Id. § 214.2(h)(4)(ii). The employer also has the burden of establishing that the position offered to the beneficiary is in fact a "specialty occupation." To carry that burden, the employer must show that the position satisfies at least one of four prerequisites:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Id. § 214.2(h)(4)(iii)(A).

If USCIS grants the petition, the H-1B status is generally valid for three years, but it may be extended for an additional three years, for a statutory maximum of six years. See Save Jobs USA v. U.S. Dep't of Homeland Sec., 105 F. Supp. 3d 108, 111 (D.D.C. 2015); 8 U.S.C. § 1184(g)(4). This default statutory maximum is subject to exceptions, however, one of which applies to foreign workers whose Form I-140 Petitions for permanent residency have been pending for more than 365 days. See Sage IT, Inc. v. Cissna, 314 F. Supp. 3d 203, 205 (D.D.C. 2018) (citing 21st C. Dep't of Justice Appropriations Authorizations Act ("DOJ-21"), Pub L. No. 107-273, § 11030A (2002) (codified at 8 U.S.C. § 1884 note)). Those individuals may seek recurring one-year extensions of their H-1B status until "a final decision is made" regarding their pending permanent residency petitions. Id. at 205-06 (quoting 8 U.S.C. § 1884 note).

Mr. Krishnamurthy has sought to avail himself of this exception in the H-1B petition at the center of this case. As alluded to above, before USCIS denied the present petition, Mr. Krishnamurthy held H-1B status from 2011 to 2017, hitting the six-year maximum. But the present petition indicates that Mr. Krishnamurthy filed a labor certification application to support an I-140 permanent residency petition in 2012, and that a final decision on the application remains pending. See Compl., Ex. A at 14, ECF No. 1-5. He and Stellar IT therefore contend that he is eligible for at least one additional year of H-1B status. USCIS does not appear to take issue with this contention, as it did not mention the statutory time cap in its decision denying the H-1B petition or in its memorandum in opposition to Plaintiffs' motion before this Court.

The present H-1B petition is more than a mere request for an extension of status, though. The petition reflects no change in Mr. Krishnamurthy's employer, but it does indicate a change in the previously approved employment, meaning he and Stellar IT wish for him to serve in a different role with the company. Id. at 8. Mr. Krishnamurthy's new position, the petition and supporting documents explain, would be "Senior Project Manager Information Technology," to be performed on-site at Honda North America, for whom Stellar IT would provide services as a sub-contractor.¹ See, e.g., id. at 88, 95. The position's responsibilities would include "[e]stablish[ing] and implementing project management processes and methodologies for the IT community;" "work[ing] closely across business and IT teams to drive effective selection of delivery and solutions partners;" and "[d]riv[ing] insightful businesses and financial analytics to ensure that technology investments are aligned to key company priorities." Id. at 95.

Stellar IT completed the first step of the approval process for this change in employment: it obtained DOL certification of the LCA form. See id. at 27-29. When it submitted the Form I-129 petition to USCIS, however, the agency responded by issuing a Request for Evidence ("RFE") that asked for additional information regarding the nature of the position and Stellar IT's employer-employee relationship with Mr. Krishnamurthy—specifically its right to control him while he was on-site at Honda. Compl., Ex. B at 2-5, ECF No. 1-6. The RFE, which is dated January 23, 2018, indicated that Stellar IT had until April 17, 2018 to produce this information, id. at 1, but on March 20, before Stellar IT had replied to the RFE, USCIS went ahead and denied the petition outright, see Com...