Taylor Made Software, Inc. v. Cuccinelli

• Decision Date: 31 March 2020
• Docket Number: Civil Action No. 19-202 (RC)
• Citation: 453 F.Supp.3d 237
• Parties: TAYLOR MADE SOFTWARE, INC., Plaintiff, v. Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, United States Citizen and Immigration Services, Defendant.
• Court: U.S. District Court — District of Columbia

453 F.Supp.3d 237

TAYLOR MADE SOFTWARE, INC., Plaintiff,

v.Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, United States Citizen and Immigration Services,¹ Defendant.

Civil Action No. 19-202 (RC)

United States District Court, District of Columbia.

Signed March 31, 2020

Jonathan D. Wasden, Wasden Banias LLC, Mount Pleasant, SC, for Plaintiff.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

Under the H-1B program, non-citizens can temporarily work in the United States if they are sponsored by an employer in a "specialty occupation." Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(15)(H)(i)(b). Plaintiff Taylor Made Software, Inc. ("Taylor Made") filed a H-1B petition on behalf of its intended beneficiary, Mr. Venkatesan Kannan, who planned to work for the company as a computer systems analyst. The petition was denied by the United States Citizenship and Immigration Services ("USCIS") on grounds that Taylor Made failed to establish that the position was a "specialty occupation" under the INA and associated regulations. Invoking the judicial review procedures of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. , Taylor Made sued the USCIS Director, contending that the agency's decision was arbitrary and/or capricious. Currently pending before the Court are the parties' cross-motions for summary judgment. For the reasons explained below, the Court grants Plaintiff's motion, denies Defendant's, and remands to the agency for further consideration.

I. BACKGROUND

A. Legal Framework

The INA empowers employers to petition for H-1B nonimmigrant visas on behalf of alien beneficiaries. 8 U.S.C. § 1184(c)(1). To secure a H-1B visa, an employer first submits to the Department of Labor ("DOL") a Labor Condition Application ("LCA"), which identifies the specialty occupation at issue and certifies that the company will comply with the requirements of the H-1B program. 8 U.S.C. § 1182(n)(1). Then, once the DOL has certified the LCA, the employer submits it (together with a Form I-129 petition) to USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B). USCIS ultimately determines whether a position counts as a specialty occupation, see 20 C.F.R. § 655.715, and the employer bears the burden of convincing the agency that the position so qualifies and the applicant is otherwise eligible for a visa, see 8 U.S.C. § 1361 ("Whenever any person makes application for a visa or any other document required for entry, ... the burden of proof shall be upon such person to establish that he is eligible to receive such visa.").

For the purposes of the H-1B program, the INA defines a "specialty occupation" as one 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). In line with that statutory definition, the applicable regulations define a specialty occupation as one that "requires the attainment of a bachelor's degree or higher in a specific specialty" or its equivalent, plus "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." 8 C.F.R. § 214.2(h)(4)(ii) ("Definitions"). The next subparagraph in the regulations provides more specific criteria (or prerequisites) as to what qualifies:

To qualify as a specialty occupation, the position must meet one of the following criteria:

(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) ("Criteria for H-1B petitions involving a specialty occupation"); see also Defensor v. Meissner , 201 F.3d 384, 387 (5th Cir. 2000) ("assum[ing] arguendo that § 214.2(h)(4)(iii)(A) creates [a] necessary and sufficient condition[ ] for the category of ‘specialty occupation’ " but acknowledging that the provision could also "be read as merely an additional requirement that a position must meet, in addition to the statutory ... definition").

B. Case Background

Taylor Made is a small, Chicago-based software development company with ten employees. AR 30, 35.² On April 12, 2018, it filed a Form I-129 Petition for Mr. Kannan, AR at 4, whom it sought to employ as a computer systems analyst, AR 34. According to the petition, Mr. Kannan holds a Master of Science in Computer Science from the University of Illinois. AR 42. In a letter accompanying the petition, Taylor Made outlined the duties of the proposed role and explained why it qualified as a specialty occupation position. AR 197–98.

On May 1, 2018, USCIS issued a request for evidence ("RFE"), seeking additional proof that the position qualified as a specialty occupation. AR 201–12. In response, Taylor Made mustered a variety of supporting evidence, including: (a) a more detailed description of the position, (b) relevant excerpts from various DOL documents (including the Occupational Outlook Handbook and O*Net Online database), (c) an expert opinion from a Dr. Michael Lavine (a Professor at the University of Maryland), (d) job advertisements for comparable positions in the industry, and (e) a summary of the qualifications possessed by other computer systems analysts employed at Taylor Made. AR 216–24. Notwithstanding the additional evidence, USCIS denied the petition. AR at 4. The decision explained each of the four § 214.2(h)(4)(iii)(A) criteria and why Taylor Made failed to prove that any of the criteria were met. AR at 7–13.

In this suit, Taylor Made seeks review of that decision. See Compl. 9–11, ECF No. 1. Currently ripe and pending before the Court are the parties' cross-motions for summary judgment. See Pl.'s Mem. Supp. Mot. Summ. J. ("Pl.'s MSJ"), ECF No. 9-1; Def.'s Mem. Supp. Cross-Mot. Summ. J. & Opp'n ("Def.'s XMSJ"), ECF No. 10-1.

II. LEGAL STANDARD

Normally, summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). But this standard does not govern cases involving review of agency action under the APA "because of the limited role of a court in reviewing the administrative record." Ctr. for Food Safety v. Salazar , 898 F. Supp. 2d 130, 138 (D.D.C. 2012). In these contexts, "[i]nstead of reviewing the record for disputed facts that would preclude summary judgment, the function of the district court is a more limited one: ‘to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.’ "

Ardmore Consulting Grp., Inc. v. Contreras-Sweet , 118 F. Supp. 3d 388, 393 (D.D.C. 2015) (quoting Kaiser Found. Hosps. v. Sebelius , 828 F. Supp. 2d 193, 198 (D.D.C. 2011) ).

The ultimate standard is whether the agency action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Review under that standard is "highly deferential." AT & T, Inc. v. FCC , 886 F.3d 1236, 1245 (D.C. Cir. 2018) (quoting Nat'l Tel. Coop. Ass'n v. FCC , 563 F.3d 536, 541 (D.C. Cir. 2009) ). To pass muster, an agency must have only " ‘examine[ed]’ the relevant factors and data and articulate[d] a ‘rational connection’ between the record and [its] decision." Id. (first quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ; then quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ). At the same time, though, judicial review is not toothless: a court will find an agency acted arbitrarily or capriciously "if it has relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation either contrary to the evidence before the agency or so implausible as to not reflect either a difference in view or agency expertise." Defs. of Wildlife v. Jewell , 815 F.3d 1, 9 (D.C. Cir. 2016).

III. ANALYSIS

In challenging the USCIS decision, Taylor Made makes two main arguments. First, it suggests that the agency has impermissibly "repudiate[d] the plain language" of 8 C.F.R. § 214.2(h)(4)(iii)(A). Pl.'s MSJ at 32. Second, it argues that, even under USCIS's interpretation of the regulatory framework, the agency still erred in its analysis of the relevant § 214.2(h)(4)(iii)(A) factors when it concluded that a computer systems analyst position was not a specialty occupation. Id. at 36.

A. USCIS's Interpretation of 8 C.F.R. § 214.2(h)(4)(iii)(A)

Taylor Made's first argument zeroes in on an acknowledged discrepancy between the statutory text and the language of 8 C.F.R. § 214.2(h)(4)(iii)(A). INA itself defines "specialty occupation" as one that requires the "attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in...