Xpress Grp. v. Cuccinelli

Decision Date10 February 2022
Docket NumberCivil Action 3:20-CV-00568-DSC
PartiesXPRESS GROUP INC., Plaintiff, v. KENNETH T. CUCCINELLI, in his official capacity as Senior Official performing duties of the Director of USCIS, Defendant.
CourtU.S. District Court — Western District of North Carolina


KENNETH T. CUCCINELLI, in his official capacity as Senior Official performing duties of the Director of USCIS, Defendant.

Civil Action No. 3:20-CV-00568-DSC

United States District Court, W.D. North Carolina, Charlotte Division

February 10, 2022



THIS MATTER is before the Court on “Plaintiff's Motion for Summary Judgment and Memorandum of Points and Authorities, ” Doc. 18, and Defendant's “Opposition to Plaintiff's Motion for Summary Judgment [and Motion for Summary Judgment], ” Doc. 19, as well as the parties' briefs and the Certified Administrative Record (“CAR”), Doc. 17.

The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and these Motions are ripe for disposition.


Plaintiff Xpress Group, Inc. argues that Defendant U.S. Citizenship and Immigration Services (“USCIS”) improperly denied H-1B status for its beneficiary Mohammad Nassar. Specifically, Plaintiff argues that Defendant improperly determined that the position Nassar would have filled as a Management Analyst does not qualify as a specialty occupation for a H-1B visa. Defendant responds that USCIS thoroughly considered all evidence Plaintiff submitted and provided sufficient reasoning to support its


conclusions that the proffered job does not meet the statutory and regulatory criteria for a “specialty occupation” and properly denied the H-1B visa Petition.

Having fully considered the written arguments, administrative record, and applicable authority, the Court finds that Defendant's decision to deny Plaintiff's H-1B Petition was not arbitrary and capricious and is supported by substantial evidence. Accordingly, the Court will deny Plaintiff's Motion for Summary Judgment; grant Defendant's Motion for Summary Judgment; and affirm the USCIS decision.


Plaintiff is a management company located in Charlotte, North Carolina. It oversees three different business models that provide automotive services in North and South Carolina. It has a total of eleven physical locations and twelve different businesses. The businesses include seven full-service oil change and preventative maintenance centers, three car washes, and two fuel and convenience stores. Doc. 12. On April 11, 2019, Plaintiff filed a Form I-129 Petition for Nonimmigrant Worker, seeking H-1B classification for the “Management Analyst” position to be filled by Mohammad Nasser. CAR pp. 25-37.

On December 2, 2019, after review of the Petition and accompanying material, USCIS issued a Request For Evidence (the “First RFE”), affording Plaintiff an opportunity to supplement its prior submissions in specific areas. CAR pp. 125-132. On January 10, 2020, Plaintiff responded with additional evidence. CAR pp. 141-239. On January 28, 2020, USCIS denied the Petition, explaining that the agency had examined all the evidence and determined that Plaintiff failed to meet its burden to demonstrate that the position offered to Nassar satisfied the criteria for an H-1B specialty occupation. CAR pp. 240-248. Plaintiff did not appeal the denial or move for reconsideration. It could have done so by filing a Form I-290B Notice of Appeal or Motion within


thirty-three days of the decision. CAR p. 248. On October 14, 2020, Plaintiff filed its Complaint challenging the USCIS decision. Doc. 1.

Upon learning of the Complaint, USCIS voluntarily reopened the administrative proceeding to correct an apparent discrepancy in the record concerning the size of Plaintiff's business organization and to afford it another opportunity to buttress its claim that the position at issue qualified as a specialty occupation. On December 9, 2020, USCIS reopened the adjudication, CAR p. 258, and issued a second Request For Evidence (“Second RFE”) seeking additional evidence that the “Management Analyst” position qualified as a “specialty occupation.” The Second RFE made specific reference to each specialty occupation criterion and sought additional evidence on the nature and complexity of the position's duties. CAR pp. 259-269. The Second RFE also sought clarification of an ambiguity in the initial Petition about the number of employees and payment of the applicable fee for Plaintiff's Form I-129 Petition. CAR p. 268.

On March 5, 2021, Plaintiff responded to the Second RFE, correcting its initial claims about the number of workers and paying the fee for the Form I-129 Petition. Otherwise it submitted essentially the same evidence it had previously provided, supplemented by letters from counsel and Jamil Nassar, President of Xpress Group Inc. CAR pp. 270-389. On April 15, 2021, USCIS again denied the Form I-129 Petition for Nonimmigrant Worker finding that Plaintiff failed to meet its burden to demonstrate that a Management Analyst satisfied the criteria for a H-1B specialty occupation. CAR pp. 1-16.

Since Plaintiff did not appeal or move for reconsideration, USCIS's April 15, 2021 denial constitutes the final agency action. Plaintiff filed its First Amended Complaint on June 3, 2021, seeking a reversal of the USCIS decision and an order directing the agency to grant the H1-B


Petition pursuant to section 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Doc. 12. The parties have filed cross-Motions for Summary Judgment.


The Administrative Procedure Act (“APA”) provides for judicial review of final agency actions. See 5 U.S.C. §§ 702, 704. Under the APA,

[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... [or] (E) unsupported by substantial evidence in a case ... reviewed on the record of an agency hearing provided by statute

Id. § 706(2)(A), (E).

An action is arbitrary or capricious if “the agency relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 287-88 (4th Cir. 1999) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). This standard is “highly deferential, with the presumption in favor of finding the agency action valid.” G.D USA, Inc. v. United States Citizenship & Immigr. Servs., 531 F.Supp.3d 966, 980 (E.D. Va. 2021) (quoting Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009)).

“The standard of review is narrow and a court is not to substitute its judgment for that of the agency. The reviewing court does not resolve factual questions, but instead determines whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. (citations omitted). To survive a challenge, the agency must articulate “a satisfactory explanation” for its action, “including a rational connection between the facts found


and the choice made.” Dep't of Com. v. New York, ---U.S.----, 139 S.Ct. 2551, 2569, 204 L.Ed.2d 978 (2019)(citation omitted); see also, Nat'l Audubon Soc'y v. United States Army Corps of Eng'rs, 991 F.3rd 577, 583 (4th Cir. 2021)(“In other words, so long as the agency provides an explanation of its decision that includes a rational connection between the facts found and the choice made, its decision should be sustained.”).

The agency's factual findings and conclusions are reviewed under the substantial evidence standard. The Court may only overturn final agency decisions that are “unsupported by substantial evidence in a case ... reviewed on the record.” 5 U.S.C. § 706(2)(E). The Supreme Court has “defined ‘substantial evidence' as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'” which is “something less than the weight of the evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 619-20 (1966) (citation omitted). “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.” Id. at 620; see also, Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999).

Courts routinely resolve APA challenges on summary judgment motions. As the Eastern District of North Carolina explained,

The Rule 56(a) standard applies differently in an APA claim. A court conducting judicial review under the APA does not resolve factual questions, but instead determines whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did. Thus, in an APA claim, summary judgment becomes the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.”

Nieves v. McHugh, 111 F.Supp.3d 667, 679-80 (E.D. N.C. 2015) (internal citations omitted).



Plaintiff argues that USCIS abused its discretion in denying the H-1B visa Petition. Specifically, Plaintiff contends that USCIS erroneously interpreted regulatory requirements, ignored evidence, and misapplied clear legal standards when it determined that Plaintiff had failed to sustain its burden of proving that the position of “Management Analyst, ” qualifies as a “specialty occupation.”

A. Applicable Statutory and Regulatory Framework

The H-1B visa program permits employers to temporarily hire foreign citizens to work in a “specialty occupation.” 8 U.S.C. § 1101(a)(15)(H)(i). The Immigration and Nationality Act (“INA”) defines a...

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