Thiagarajan v. Koumans
| Decision Date | 31 May 2020 |
| Docket Number | Civil Action No. 19-cv-1116 (RDM) |
| Parties | VENKATESH THIAGARAJAN, Plaintiff, v. MARK KOUMANS, Acting Director, United States Citizenship and Immigration Services. Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Venkatesh Thiagarajan, a citizen of India, brings this suit under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., challenging the United States Citizenship and Immigration Services' ("USCIS") decision to deny his application for an adjustment of his immigration status in order to become a lawful permanent resident of the United States. Dkt. 1. USCIS denied that application and Plaintiff's motion for reconsideration of that denial on the ground that he had failed to show, as is required by statute, 8 U.S.C. § 1255(a)(3), that an immigrant visa was immediately available to him. Rather, according the USCIS, the evidence showed that both he and his wife were born in India, and thus his visa was chargeable to India—and no visa for an Indian national was available to him at that time. CAR 105-07 (); CAR 48-50 ().
Plaintiff challenges those denials as arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A). He contends that a visa was immediately available to him via his wife because, he contends, she falls under a narrow regulatory exception for individuals who are born in in foreign state to parents who were not born in that foreign state and who were stationed there for work at the time of the individual's birth. 22 C.F.R. § 42.12(e); see also 8 U.S.C. § 1152(b) (). The parties have cross-moved for summary judgment on this question and, for the following reasons, the Court will GRANT Defendant's motion for summary judgment, Dkt. 11, and will DENY Plaintiff's motion for summary judgment, Dkt. 10.
Plaintiff was sponsored by his employer, Cognizant Technology Solutions US Corporation ("Cognizant"), for a green card. CAR 444-57. That process consists of three steps. First, the employer must apply for and receive a certification from the Department of Labor that there are no qualified, able, and willing U.S. workers to fill the job opportunity that the company is offering to the alien worker. See 8 U.S.C. § 1182(a)(5). Second, the employer must file with USCIS the approved labor certification along with an I-140 petition, which requires the employer to demonstrate that the prospective immigrant visa-holder meets the job requirements contained in the labor certification and that the company can afford to pay the worker the specified wage. 8 U.S.C. § 1154(a)(1)(F); see also 8 C.F.R. § 204.5(a).
Finally, the applicant himself must apply for and be granted an adjustment of status to permanent resident. 8 U.S.C. § 1255(a). Adjustment of status is a form of discretionary relief for which an individual is eligible only if: (1) he "makes an application for such adjustment;" (2)he "is eligible to receive an immigrant visa and is admissible to the United States for permanent residence;" and (3) "an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a). The total number of employment-based immigrant visas that may be issued during a given year is capped by the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1151(d). The INA further specifies that no more than 7% of any particular visa type may be issued to "natives of any single foreign state" in a given year. 8 U.S.C. § 1152(a)(2). These caps have the combined effect of creating long wait times for nationals of certain countries. See Feng Wang v. Pompeo, 354 F. Supp. 3d 13, 18-19 (COURT & YEAR) (); see also Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Workers, 81 Fed. Reg. 82,398, 82,409 (Nov. 18, 2016) ().
The general rule is that an immigrant visa will be "charged" to the foreign state in which the applicant was born. 8 U.S.C. § 1152(b). Under the "cross-chargeability rule," however, an individual's visa may also be charged to his or her spouse's foreign state of birth if failure to do so would result in separation of the couple. See 8 U.S.C. § 1152(b). The State Department has, however, by regulation provided for several clarifications to the rule charging visas to foreign states based on place of birth. The clarification relevant here permits individuals "born in a foreign state . . . in which neither parent was born, and in which neither parent had a residence at the time of the applicant's birth," to charge their visa "to the foreign state of either parent." 22 C.F.R. § 42.12(e). Parents of an individual "are not considered as having acquired a residence . . . if, at the time of the [individual's] birth within the foreign state, the parents were visiting temporarily or were stationed there in connection with the business or profession and under [the]orders or instructions of an employer, principal, or superior authority foreign to such foreign state." Id.
Plaintiff has been working in the United States for Cognizant since at least 2011, when Cognizant first sponsored Plaintiff for an employment-based immigrant visa.2 CAR 444-57. USCIS approved that application on August 9, 2011, which granted Plaintiff a priority date for his visa-eligibility of March 21, 2011. CAR 435. On April 20, 2017, Plaintiff applied to adjust his immigration status to that of a permanent resident. CAR 148-269.
In that application, Plaintiff asserted that a visa was immediately available to him because his visa should, through his wife, be charged to France, rather than India, due to his wife's and her family's French citizenship. CAR 165-69. In support of that assertion, he submitted his wife's "Certificate of French Nationality" and a translated copy thereof. CAR 238-45. Although Plaintiff's wife, like Plaintiff, was born in India, her family is from Pondicherry (also spelled "Puducherry" in portions of the administrative record), a region of modern-day India that was under French colonial rule until it was ceded to India by treaty in 1956, CAR 58, and thus Plaintiff's wife has French citizenship through her parents, see CAR 60.
On March 18, 2018, USCIS requested a copy of Plaintiff's birth certificate and additional evidence that he was still employed by Cognizant. CAR 113-15. Plaintiff submitted evidence of his employment as well as a translation of his birth certificate and a document purporting to be a translation of a copy of his wife's birth certificate. CAR 137-38.
On July 9, 2018, USCIS denied Plaintiff's application on the ground that no visa was available to him. CAR 105. USCIS explained that, although Plaintiff "indicate[d] a visa should not be charged to [his] country of birth because [he] claimed [his wife] is a French citizen born in French India," CAR 106, Plaintiff "submitted evidence showing that [his] wife and her parents were born in India and [that] her parents were residing in India at the time of her birth," CAR 107. Thus, USCIS found that he was "ineligible to utilize the rules of alternate chargeability such that [he] might be charged to France, rather than [India]." Id.
On August 2, 2018, Plaintiff filed a motion to reopen and/or reconsider. CAR 51-103. In support of that motion, Plaintiff argued that USCIS had misapplied 22 C.F.R. § 42.12(e) in his case because his wife's parents are French citizens and were in India for her father's work and were therefore not residents of India. See CAR 100-01. In support of that argument, he filed a copy of his wife's French passport, CAR 60, a certificate of his father-in-law's employment at a public middle school in Pondicherry, and original and translated copies of a "Family Book" detailing the birth dates and locations of his wife's family members dating back to her grandparents in 1924, CAR 80-85.
On August 20, 2018, USCIS denied the motion to reopen and/or reconsider. CAR 48-50. USCIS explained that the record "failed to establish that neither of [Plaintiff's] wife's parents were born in India." CAR 50. Rather, the evidence showed that Plaintiff's "wife's mother was born in 1966, after India re-gained control of Pondicherry." Id. "[I]n the alternative," the decision continued, Plaintiff had failed to show that he "me[t] the exceptions outlined in 22 C.F.R. § 42.12." Id. Specifically, Plaintiff had "not submitted any evidence that at the time of [his] wife's birth in 1983, her parents had not acquired a residence in India" within the meaning of the INA and the related regulations. Id. According to USCIS, Plaintiff had not shown that hiswife's parents "were visiting temporarily or were stationed in India in connection with business or profession and under orders or instructions of an employer, principal, or superior authority of the French government." Id.
On October 18, 2018, Plaintiff filed a "Notice of Appeal or Motion." CAR at 8. Plaintiff checked a box indicating that he was filing a "motion to reopen and a motion to reconsider the decision." Id. He did not check any of the boxes indicating that he was filing an administrative "appeal." Id. He explained that he was providing "new facts" and documents and requested "reconsideration of the prior decision." CAR 21. In support of his motion, he provided, among other documents, copies of his in-laws' French passports, his father-in-law's birth certificate, and a "Non-Residence Affidavit" from his father-in-law attesting that both he and his wife were French nationals and that he had been "stationed in India in connection with his profession." CAR 28-29. On ...
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