Sunlift International, Inc. v. Mayorkas

• Decision Date: 22 July 2021
• Docket Number: 20-cv-08869-JCS
• Court: U.S. District Court — Northern District of California
• Parties: SUNLIFT INTERNATIONAL, INC., Plaintiff, v. ALEJANDRO MAYORKAS, et al., Defendants.

SUNLIFT INTERNATIONAL, INC., Plaintiff, v. ALEJANDRO MAYORKAS, et al., Defendants.

No. 20-cv-08869-JCS

United States District Court, N.D. California

July 22, 2021

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND AFFIRMING DENIAL OF PETITION

Re: Dkt. Nos. 17, 18

JOSEPH C. SPERO Chief Magistrate Judge

I. INTRODUCTION

On August 10, 2020, U.S. Citizenship and Immigration Services (“USCIS”) denied a Form I-140, Immigrant Petition for Alien Worker (“Petition”) filed by Plaintiff Sunlift International, Inc. (“Sunlift”) on behalf of Mr. Ping Zhou (“Beneficiary”). Sunlift contends the denial was arbitrary and capricious and contrary to law and brings this action seeking to overturn the denial while USCIS asks the Court to uphold the denial. Presently before the Court is Plaintiff's Motion for Summary Judgment (“Plaintiff's Motion”) and Defendants' cross-motion for summary judgment (“Defendants' Motion”). The Court finds that the motions are suitable for determination without oral argument. For the reasons stated below, Plaintiff's Motion is DENIED and Defendants' Motion is GRANTED.^[1]

II. BACKGROUND

A. Statutory and Regulatory Framework

Under the Immigration and Nationality Act (“INA”), a limited number of employment-based, first preference visas are made available to “certain multinational executives and managers.” INA § 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). Such visas are referred to as EB-1C visas. In order to be eligible for an EB-1C visa, an individual must in the three years preceding the application have “been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and . . . seek[ ] to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.” Id. The main issue in this case is whether the Beneficiary meets the requirements of this provision based on his employment by Sunlift in a “managerial capacity.” The term “managerial capacity” is statutorily defined as follows:

(44)(A) The term “managerial capacity” means an assignment within an organization in which the employee primarily-

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

INA § 101(a)(44)(A), 8 U.S.C. § 1101(a)(44)(A); see also 8 C.F.R. § 204.5(j)(2). A beneficiary who is found to be employed in a managerial capacity under subsection (i) based on management of a “function . . . of the organization[, ]” is referred to as a “function manager.” In this case, Sunlift contends Mr. Zhou is eligible for an EB-1C visa on the basis that he is a function manager.

In a decision by the Office of Administrative Appeals (“AAO”) adopted as USCIS policy guidance, the AAO set forth the following required elements for demonstrating that a beneficiary is a function manager:

[T]he petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential, ” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function's day-to-day operations.

Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). The policy guidance explains further, “Whether the function is sufficiently related to an organization's core activity or activities is inherently one of degree, and therefore, all relevant facts should be considered in making this determination.” Id.

A U.S. employer seeking permanent employment for a foreign national under an EB-1C visa must file an I-140 petition. See 8 C.F.R. § 204.5(j)(1). The petitioner has the burden to demonstrate eligibility for EB-1C classification by a preponderance of the evidence. INA § 291, 8 U.S.C. § 1361; Matter of Chawathe, 25 I. & N. Dec. 369, 375-376 (2010) (“Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought.”). If the visa petition is approved and the statutory number of such visas for the year have not been used, beneficiaries of the petition can apply to adjust status if they are in the United States or seek an immigrant visa from a U.S. consulate if they are outside the country. See INA §§ 221, 245(a), 8 U.S.C. §§ 1201, 1255(a).

B. Factual Background and Administrative Proceedings

Sunlift is a California corporation, organized under the laws of the State of California on November 18, 2013. Certified Administrative Record (“CAR”), pp. 435-36. Sunlift is “engaged in construction and development work in Northern California.” CAR, p. 426. It is a wholly-owned subsidiary of a Chinese company, Shenzhen Shenglin Electrical Engineering Co., Ltd. (“Shenzhen Shenglin”). CAR, pp. 389-91, 447-48. Shenzhen Shenglin is “a business entity primarily engaged in the manufacturing and sales of electrical and mechanical equipment, installation and maintenance of hydroelectric and electrical equipment, and construction of electrical transformation and distribution systems.” CAR, p. 421.

Beneficiary Ping Zhou is a citizen of China who began working for Shenzhen Shenglin as its Deputy General Manager in July 2011. CAR, p. 601. In November 2013, Shenzhen Shenglin decided to transfer Mr. Zhou to the United States to serve as president of Sunlift. CAR, p. 604. Mr. Zhou came to the United States on an L-1A multinational executive or manager nonimmigrant visa with an initial term of one year (February 5, 2014 - February 24, 2015). CAR, p. 432. USCIS subsequently granted extensions through April 2018 and then an additional two-year extension through April 2020. CAR, p. 430; Plaintiff's Motion at 2.

According to Mr. Zhou, Sunlift “began its business operation in stone retail and countertop fabrication.” CAR, p. 26. Mr. Zhou, as president of Sunlift, decided in the Fall of 2014 to acquire a company called B&B Marble, Inc. Id.; see also CAR, pp. 649-683 (documents reflecting acquisition of B&B Marble, executed by Mr. Zhou for Sunlift). According to Mr. Zhou, “as the industry became highly competitive, and Sunlift began to incur a financial loss, he . . . made the strategic decision to re-direct Sunlift's business towards home remodeling projects.” CAR, p. 26. In 2016, “Sunlift's remodeling projects continued to increase, and replaced stone fabrication as its main source of business income.” Id. According to Mr. Zhou, in response to this growth he “created new business units and hired employees with relevant experience to manage those business operations.” Id. Sunlift continued to move towards “higher valued rebuilding and construction projects” and in 2017 it completed “the first house construction project.” Id. Mr. Zhou states that he decided to close the showroom and warehouse for the stone fabrication side of the business that year and Sunlift began to turn a profit by the end of the year. Id. In 2018, Mr. Zhou “secured several residential home building projects for Sunlift, and the company generated over one million dollars in gross revenue for the first time.” Id.

On March 30, 2018, USCIS received a Form I-140, Immigrant Petition for Alien Worker, from Sunlift on behalf of Mr. Zhou. CAR, pp. 415-16. In support of the Petition, Sunlift submitted a letter from counsel describing Mr. Zhou's responsibilities and duties as follows:

• Planned, formulated and established company's primary goals, general operating plans and policies (Mr. ZHOU spent 30% of his time on this function);

o Developed long-term and short-term goals for marketing engineering, business development, customer service and all other business matters affecting the company;

o Planned, developed and approved specific operational policies, programs, procedures and methods in concert with general policies;

o Directed and coordinated operational activities with the help of subordinate managers, exercising the wide latitude of discretionary decision making (Mr. ZHOU spent 30% of his time on this function);

o Presided over executive meetings and general and special meetings;

o Implemented general policies established by the company, directing their administration and execution;

o Monitored the quality of the company's products and services and ensuring maximum user satisfaction;

o Approved on negotiation and signing major trade and purchasing contracts;

o Decided on the research findings of the national and international market and identifying business opportunities;

o Recruited, terminated, evaluated and promoted the managerial personnel based on their job performance, qualification and contribution;

o Oversaw the company's financing, developing, marketing, producing and other administrative executing issues (Mr. ZHOU spent 20% of his time on this function);

o Reviewed comprehensive annual business

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