UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RELX, INC. d/b/a/ LexisNexis USA,
and
SUBHASREE CHATTERJEE
Plaintiffs, Case No. 19-cv-1993
v.
KATHY A. BARAN, In her official Capacity, Director of the California Service Center, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, ET AL. Defendants.
MEMORANDUM OPINION
Plaintiffs RELX, Inc., d/b/a LexisNexis USA (“LexisNexis”)
and Ms. Subhasree Chatterjee, a Data Analyst for LexisNexis,
bring this action against defendant Kathy Baran, Director of the
California Service Center, U.S. Citizenship and Immigration
Services (“USCIS”), U.S. Department of Homeland Security
(“DHS”), and other government officials and entities, under the
Administrative Procedure Act, 5 U.S.C. § 701, et seq. Plaintiffs
allege that defendants violated the Administrative Procedure Act
when they denied LexisNexis’ H–1B petition on behalf of Ms.
Chatterjee. Pending before the Court are plaintiffs’ motion for summary judgment and defendants’ motion to dismiss. Having
considered the submissions of the parties, the administrative
record, the relevant law, and the arguments of the parties
during the motion hearing, the court DENIES defendants’ motion
to dismiss and GRANTS plaintiffs’ motion for summary judgment.
I. Background
A. Statutory and Regulatory Background
The H–1B visa program permits employers to temporarily
employ foreign, nonimmigrant workers in specialty occupations.
See 8 U.S.C. § 1101(a)(15)(H). Before obtaining a visa, an
employer must obtain certification from the Department of Labor
that it has filed a labor condition application in the specific
occupational specialty. 8 C.F.R. § 214.2(h)(4). The employer
must then file an H–1B visa petition on behalf of the alien
worker, which shows that the proffered position satisfies the
statutory and regulatory requirements. 8 U.S.C. § 1184(c). A
specialty occupation is defined as an occupation that requires
“theoretical and practical application of a body of highly
specialized knowledge” and “attainment of a bachelor’s or higher
degree in a specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.” 8 U.S.C.
§ 1184(i)(1). USCIS regulations have further defined four
criteria, each sufficiently independent, to determine whether a
2 profession qualifies as a “specialty occupation.” Under the
regulation an occupation qualifies if:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organization 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.
8 C.F.R. § 214.2(h)(4)(iii)(A)(1)–(4). The petitioner bears the
burden of proving that his or her occupation falls within one of
the four categories. 8 U.S.C. § 1361.
B. Factual Background
Plaintiff LexisNexis is a Delaware corporation with its
principal place of business in New York, NY. LexisNexis is an
umbrella corporation with several key markets: Legal,
Scientific, Medical, Risk, and Exhibitions. LexisNexis USA is an
unincorporated division of RELX, Inc. Declaration of Leticia
Andrade (“Andrade Decl.”), ECF No. 4–8 ¶ 3. LexisNexis is a
3 provider of comprehensive information and business solutions to
professionals in a variety of areas – legal, risk management,
corporate, government, law enforcement, accounting, and
academic. Id.
Plaintiff Subhasree Chatterjee is a citizen of India,
currently residing in Raleigh, NC. Declaration of Subhasree
Chatterjee (“Chatterjee Decl.”), ECF No. 4-9 ¶ 2. Ms. Chatterjee
holds a Master of Science in Business Administration, with a
focus on Business Analytics, from the University of Cincinnati,
located in Ohio, USA. Administrative Record (“AR”), ECF No. 7–4
34-35. Prior to earning her Masters degree and her work for
LexisNexis in 2017, Ms. Chatterjee earned a Bachelor of
Technology degree in Computer Science and Engineering from West
Bengal University of Technology in Kolkata, India. Chatterjee
Decl., ECF No. 4–8 ¶ 7. Ms. Chatterjee also has extensive
practical experience in data analytics from four years of
working for Infosys in Pune, India and one year working in data
analytics for Evalueserve Inc. in Raleigh, NC in the field of
Analytics Delivery after earning her undergraduate degree.
Chatterjee Decl., ECF No. 4–8 ¶ 7; Andrade Decl., ECF No. 4–9 ¶
9.
Ms. Chatterjee is currently employed by LexisNexis and
works as a Data Analyst in LexisNexis’s engineering Center for
Excellence. Andrade Decl. No. 4-9 ¶ 8. The LexisNexis Data
4 Analyst position consists of several technical responsibilities.
These responsibilities include “analyzing, investigating, and
hypothesizing data to effectively communicate with internal and
external customers, management and functional areas by
presenting problem resolution, product information . . . work
with Designers and Researchers, embedded in product development
teams, to help them understand customer behavior . . .
analyz[ing], investigat[ing], negotiat[ing] and resolv[ing]
problems to help inform product design decisions.” AR 32.
Ms. Chatterjee is currently in the United States on a F-1
student visa with STEM OPT (Optional Practical Training) that
expires on August 3, 2019, AR 37-45, after which she will not be
permitted to work in the United States. Ms. Chatterjee is the
subject of the H-1B petition LexisNexis filed and she is
directly impacted by the agency decision denying her an H-1B
visa.
C. Procedural History
On April 12, 2018, LexisNexis filed a Petition for a
Nonimmigrant Worker, Form I-129, on behalf of Ms. Chatterjee, a
citizen of India. AR 86. LexisNexis petitioned to classify Ms.
Chatterjee in H-1B status so that she could continue to work for
LexisNexis as a Data Analyst. Id. In support of its petition,
LexisNexis supplied a Labor Condition Application (“LCA”) (Case
Number I-200-18060-605447), certified by the U.S. Department of
5 Labor for the validity period of September 2, 2018 through
September 1, 2021, AR 26-31; a letter from Leticia Andrade,
Immigration Compliance Specialist, AR 32-33; background
information about LexisNexis, id.; copies of Ms. Chatterjee’s
Master’s degree from the University of Cincinnati and official
transcript, AR 34-35; a copy of her F-1 student visa and work
authorization, AR 36-45; and a copy of the biographic page of
Ms. Chatterjee’s unexpired passport, AR 48-49.
The government responded to the petition with a “Request
For Evidence” (“RFE”) related to whether the Data Analyst
position was a specialty occupation. AR 52–53. Among the
categories of information requested were (1) “A detailed
statement to explain the beneficiary’s proposed duties and
responsibilities; indicate the percentage of time devoted to
each duty; and state the educational requirements for these
duties”; (2) “Job postings or advertisements showing a degree
requirement is common to the industry in parallel positions
among similar organizations”; and (3) expert opinions supported
by “[t]he writer’s qualifications as an expert; [h]ow the
conclusions were reached; and [t]he basis for the conclusions
supported by copies or citations of any materials used.” AR 52.
On June 18, 2018, LexisNexis responded to defendants’ RFE
with (a) a supplemental letter from Leticia Andrade, Immigration
Compliance Specialist, AR 55-57; (b) an organizational chart, AR
6 58; (c) six job announcements for Data Analyst positions, from
six different employers, each showing that the Data Analyst
positions required at least a Bachelor’s degree in STEMfields
such as business analytics, statistics, mathematics, economics
or operations research, AR 59-64; and (d) an expert opinion from
Dr. Gerhard Steinke, Professor of Management and Information
Systems at Seattle Pacific University, AR 65-68. Through its
June 2018 submission, LexisNexis provided evidence on only three
out of the four 8 C.F.R. § 214.2(h)(4)(iii)(A) grounds for
“specialty occupation.”
On September 13, 2018, the Government denied the petition
filed by LexisNexis on behalf of Ms. Chatterjee. AR 86-94. The
government stated that LexisNexis had not shown that the
position is a specialty occupation. Id. LexisNexis moved for
reconsideration, AR 97, and the government granted the motion
for reconsideration on January 17, 2019. Six days later, the
government issued a final decision denying the petition for the
same reasons as the initial denial. AR 1–7.
On July 3, 2019, plaintiffs filed suit seeking relief under
the APA. See Compl., ECF No. 1. The Court placed this matter on
an expedited briefing and hearing schedule – consolidating the
plaintiffs’ motion for preliminary injunction with a decision on
the merits - in light of the fact that Ms. Chatterjee’s current
status expires on August 3, 2019. See Minute Order dated July
7 12, 2019. The parties were instructed to file cross-motions for
summary judgment with the plaintiffs’ motion due on July 22,
2019. On July 18, 2019, shortly before the plaintiffs filed
their opening motion, defendants sua sponte reopened Ms.
Chatterjee’s petition. Defendants did not serve plaintiffs with
notice that the petition was reopened on that day, nor did they
provide a reason for the alleged reopening.
On July 22, 2019, plaintiffs moved for summary judgment
seeking an order from this Court directing USCIS to grant Ms.
Chatterjee’s H1-B petition and place Ms. Chatterjee on H1-B visa
status. Pls’ Mot. for Summ. J., ECF No. 7. Four days later,
defendants filed a motion to dismiss in light of the fact that
it reopened Ms. Chatterjee’s case. Defs.’ Mot. to Dismiss, ECF
No. 12. Attached to its motion to dismiss, the defendants
provided a “Request For Evidence” detailing the evidence needed
to reconsider plaintiffs’ case. See Defs.’ Request for Evidence,
ECF No. 12-2. Plaintiffs filed an opposition to the motion to
dismiss shortly after. Pls. Opp’n, ECF No. 13. After directing
defendants to file a reply to plaintiffs’ opposition, the Court
held a motion hearing on August 1, 2019, and August 2, 2019.
After hearing argument the Court issued an oral ruling granting
plaintiffs’ motion for summary judgment and denying defendants
motion to dismiss with a Memorandum Opinion to follow.
8 II. Legal Standards
A. Motion to Dismiss
Defendants have moved to dismiss this case for lack of
subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). A Rule 12(b)(1) motion to dismiss for lack
of jurisdiction may be presented as a facial or a factual
challenge. “A facial challenge attacks the factual allegations
of the complaint that are contained on the face of the
complaint, while a factual challenge is addressed to the
underlying facts contained in the complaint.” Al-Owhali v.
Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003)(internal
quotations and citations omitted). When a defendant makes a
facial challenge, the district court must accept the allegations
contained in the complaint as true and consider the factual
allegations in the light most favorable to the non-moving party.
Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006).
With respect to a factual challenge, as here, the district court
may consider materials outside of the pleadings to determine
whether it has subject matter jurisdiction over the claims.
Jerome Stevens Pharmacy, Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005). The plaintiff bears the responsibility of
establishing the factual predicates of jurisdiction by a
preponderance of evidence. Erby, 424 F. Supp. 2d at 182.
9 Defendants also moved to dismiss the complaint for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6).
In order to survive a Rule 12(b)(6) motion, the plaintiff must
present factual allegations that are sufficiently detailed “to
raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). In satisfying this
requirement that it “state a claim to relief that is plausible
on its face,” id. at 570, a complaint cannot survive a motion to
dismiss through only “a formulaic recitation of the elements of
a cause of action.” Id. at 555. As with facial challenges to
subject matter jurisdiction under Rule 12(b)(1), a district
court is required to deem the factual allegations in the
complaint as true and consider those allegations in the light
most favorable to the non-moving party when evaluating a motion
to dismiss under Rule 12(b)(6). Trudeau v. FTC, 456 F.3d 178,
193 (D.C. Cir. 2006). But where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of
entitlement to relief.” Twombly, 550 U.S. at 557. Accordingly, a
“court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they
10 must be supported by factual allegations.” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
B. Motion for Summary Judgment
Although plaintiffs have moved for summary judgment, the
parties seek review of an administrative decision under the APA.
See 5 U.S.C. § 706. Therefore, the standard articulated in
Federal Rule of Civil Procedure 56 is inapplicable because the
Court has a more limited role in reviewing the administrative
record. Wilhelmus v. Geren, 796 F. Supp. 2d 157, 160 (D.D.C.
2011)(internal citation omitted). “[T]he function of the
district court is 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.” See Sierra Club v. Mainella, 459
F. Supp. 2d 76, 90 (D.D.C. 2006)(internal quotation marks and
citations omitted). “Summary judgment thus serves as 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.” Wilhelmus, 796 F.
Supp. 2d at 160 (citations omitted).
Under the APA, a court must set aside an agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); Tourus
Records, Inc. v. DEA, 259 F.3d 731, 736 (D.C. Cir. 2001). Review
of agency action is generally deferential, Blanton v. Office of
11 the Comptroller of the Currency, 909 F.3d 1162, 1170 (D.C. Cir.
2018)(citing Safari Club Int’l v. Zinke, 878 F.3d 316, 325-26
(D.C. Cir. 2017)), as long as the agency examines the relevant
facts and articulates a satisfactory explanation for its
decision including a “rational connection between the facts
found and the choice made.” Motor Vehicle Mfr.’s Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(citation
omitted); Iaccarino v. Duke, 327 F. Supp. 3d 163, 177 (D.D.C.
2018). The “scope of review under the arbitrary and capricious
standard is narrow and a court is not to substitute its judgment
for that of the agency.” Iaccarino, 327 F. Supp. 3d at 173
(internal quotation marks omitted)(citing State Farm, 463 U.S.
at 43).
Although the scope of review is deferential, “courts retain
a role . . . in ensuring that agencies have engaged in reasoned
decision making.” Iaccarino, 327 F. Supp. 3d at 173 (citing
Judulang v. Holder, 565 U.S. 42, 53 (2011)). The requirement
that an agency action not be arbitrary and capricious includes a
requirement that the agency adequately explain its result. Id.
at 177 (citing Public Citizen, Inc. v. FAA, 988 F.2d 186, 197
(D.C. Cir. 1993)). An agency’s failure to set forth its reasons
for a decision constitutes arbitrary and capricious action, and
a court must undo the agency action. Id. (citing Amerijet Int’l
Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014)).
12 III. Analysis
A. Defendants’ Motion to Dismiss
Defendants move to dismiss under both Rules 12(b)(1) for
lack of subject matter jurisdiction and 12(b)(6) for failure to
state a claim. The Court addresses each claim in turn.
1. Rule 12(b)(1): Subject Matter Jurisdiction
Defendants argue that the agency’s recent action in
attempting to reopen plaintiffs’ petition deprives the Court of
jurisdiction because the claims are no longer ripe. See Defs.’
Mot. to Dismiss, ECF No. 12-1 at 9–10. 1 The ripeness doctrine
requires courts to consider two factors, “the fitness of the
issue for judicial decision and the hardship to the parties of
withholding court consideration.” Abbott Laboratories v.
Gardner, 387 U.S. 136, 148-49 (1967) abrogated on other grounds
by Califano v. Sanders, 430 U.S. 99, 107 (1997); Friends of
Keeseville, Inc. v. FERC, 859 F.2d 230, 234–35 (D.C. Cir. 1988).
“This court has long understood the approach in Abbott Labs to
incorporate a presumption of reviewability.” Sabre, Inc. v.
Dep't of Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005)(citing
Nat'l Automatic Laundry Cleaning Council v. Shultz, 443 F.2d
689, 694 (D.C. Cir. 1971)). A determination of ripeness
1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 13 “requires the court to balance its interest in deciding the
issue in a more concrete setting against the hardship to the
parties caused by delaying review.” Webb v. Department of Health
and Human Services, 696 F.2d 101, 106 (D.C. Cir. 1982).
In striking the balance in this case, the Court finds that
it weighs in favor of adjudication. First, after review of the
record there is no serious contention that “further
administrative action is needed to clarify the agency's
position,” in this case. See Friends of Keeseville, Inc., 859
F.2d at 234-35. Nor can it be said that” the issues involved
require further factual development if they are to be
susceptible to judicial resolution.” Id. The defendants have
issued an RFE requesting nearly identical information as it did
when it last reviewed the petition. See supra at 20–21.
Therefore, determinations as to the reviewability and the
propriety of the agency's prior orders would involve an
examination of facts already in the administrative record. Id.
(“The issues presented will grow no more ‘concrete’ or less
‘abstract’ with the passage of time.”).
The second prong, hardship to the parties caused by
delaying review, weighs heavily in favor of adjudication.
Defendants do not contest the fact that Ms. Chatterjee’s F-1
visa will expire on August 3, 2019. Upon expiration she will
lose her job and be required to leave the country for an
14 extended period of time, results that would be avoided with an
adjudication in her favor. In other words, Ms. Chatterjee’s
status would be significantly affected by the Court’s refusal to
adjudicate her claim. In light of the significant hardship she
would face, and the fact that the issues do not require further
factual development, the Court holds that this case is ripe for
adjudication.
Defendants next argue that the Court lacks jurisdiction
because plaintiffs failed to exhaust administrative remedies.
See Defs.’ Mot. to Dismiss, ECF No. 12-1 at 10–11. That argument
fails because there is no exhaustion requirement for plaintiffs’
claim. APA claims are not subject to exhaustion requirements
unless specifically required by statute or regulation. See Darby
v. Cisneros, 509 U.S. 137, 154 (1993)(“[W]here the APA applies,
an appeal to ‘superior agency authority’ is a prerequisite to
judicial review only when expressly required by statute or when
an agency rule requires appeal before review and the
administrative action is made inoperative pending that review.”
(emphasis in original)); CSX Transp., Inc. v. Surface Transp.
Bd., 584 F.3d 1076, 1078 (D.C. Cir. 2009)(“[A]bsent a statutory
or regulatory requirement, courts have no authority to require
parties to exhaust administrative procedures before seeking
judicial review.”). There is no requirement that plaintiffs seek
an appeal of a denied visa before seeking judicial review.
15 Accordingly the government’s motion to dismiss for lack of
subject-matter jurisdiction is DENIED.
2. Rule 12(b)(6): Failure to State a Claim
Defendants next argue that plaintiffs have failed to state
a claim because the agency has reopened the plaintiffs’ petition
and therefore there is no final agency action for the Court to
review. See Defs.’ Mot. to Dismiss, ECF No. 12-1 at 7–9. Section
704 of the APA states in relevant part that “[a]gency action
made reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to
judicial review.” 5 U.S.C. § 704. Because the APA provides a
limited cause of action to review “final agency action” without
such agency action a plaintiff would not have a claim under the
APA. See Reliable Automatic Sprinkler Co. v. Consumer Prod.
Safety Comm'n, 324 F.3d 726, 731 (D.C. Cir. 2003)(“If there was
no final agency action . . . there is no doubt that appellant
would lack a cause of action under the APA.”).
The parties agree that defendants’ initial denial of the
H1-B petition was a final agency action. Where the parties
disagree is whether the defendants attempt to reopen the
petition after the commencement of this law suit nullifies the
prior final agency action. Generally, an agency’s decision to
reopen a case may render a final agency action nonfinal. See
Ahlijah v. Nielsen, 2018 WL 3363875, at *2 (D. Md. July 10,
16 2018)(citing cases). However, when there is evidence that the
government has reopened the case not to reconsider new evidence
but rather to delay a decision on the H-1B petition, or when
there is no indication as to what new information the agency can
review, courts have held that reopening a case does not render a
final agency action nonfinal. See Mantena v. Hazuda, 2018 WL
3745668, at *6 (S.D.N.Y. Aug. 7, 2018); cf. Sackett v. E.P.A.,
566 U.S. 121, 127 (2012)(stating that the “mere possibility that
an agency might reconsider in light of ‘informal discussion’ and
invited contentions of inaccuracy does not suffice to make an
otherwise final agency action nonfinal.”). Courts have looked at
factors such as whether the agency has sought additional
information, whether it identified issues with the original
decision or areas for further evidentiary development, and
whether the agency requested any additional evidence. See
Mantena, 2018 WL 3745668, at *6 (citing cases). Although not a
high bar, the question for the Court is whether the agency re-
opened the case in name only. Id.
In this case, the plaintiffs have sufficiently demonstrated
that the agency’s attempt to reopen plaintiffs’ petition does
not render the agency decision nonfinal. Three facts unique to
this case mandate this conclusion. First, the agency failed to
follow the regulation that provides it with authority to reopen
a petition. 8 C.F.R. § 103.5(a)(5)(ii) grants an agency the
17 authority to sua sponte reopen or reconsider a previously final
action. The regulation allows a service officer “on his or her
own motion” to reopen a proceeding if the officer provides the
affected parties 30 days after the service of a motion to submit
a brief. The regulation states as follows:
(5) Motion by Service officer—
(i) Service motion with decision favorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision in order to make a new decision favorable to the affected party, the Service officer shall combine the motion and the favorable decision in one action.
(ii) Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30–day period.
8 C.F.R. § 103.5(a)(5)(ii). Defendants have provided the
declaration of Carolyn Nguyen, USCIS Section Chief in the
Employment Branch, in support of its motion to dismiss stating
that on “July 18, 2019, pursuant to 8 Code of Federal
Regulations (C.F.R.) § 103.5 (a)(5)(ii), [USCIS] reopened and
vacated the previous decision. [USCIS] is preparing a new RFE to
18 be issued shortly.” Declaration of Carolyn Nguyen, (“Nguyen
Decl.”), ECF No. 17-1 ¶ 9.
The record in this case is devoid of any indication that
defendants filed a motion to reopen the petition as the plain
language of the regulation mandates. See 8 C.F.R. §
103.5(a)(5)(ii). Plaintiffs were first notified that the
petition was reopened on July 22, 2019, the date the plaintiffs’
motion for summary judgment was due. Indeed, Ms. Nguyen’s
declaration in support of the motion to dismiss merely states
that the petition has been reopened and the agency vacated the
previous decision, but does not state that a motion was filed by
a service officer or that the motion was served upon the
affected parties with notice that the parties were afforded 30
days to submit a brief. See generally, Nguyen Decl., ECF No.
17-1. The government’s failure to follow its own regulations in
reopening the petition casts doubt on whether the reopening of
the petition was valid. Cf. Ravulapalli v. Napolitano, 840 F.
Supp 2d 200, 205 (D.D.C 2012)(stating agency’s reopening and
granting of petition was afforded the presumption of regularity
when agency provided declaration that it acted “in accordance
with USCIS policies and procedures”).
Second, the government has failed to proffer any reason for
why it reopened the petition other than that it was in response
to this lawsuit. In German Language Center v. United States, the
19 court held that there was nothing improper about an agency’s
decision to reopen the case when an affidavit provided by the
agency explained that the decision to reopen was made in light
of a recent unpublished opinion from the Administrative Appeals
Office. 2010 WL 3824636, at *3 (S.D. Tex. Sept. 27, 2010). Under
such circumstances, the court held, it was not improper for the
agency to reopen the case for additional consideration of recent
authority. Id. In contrast, here, the affidavit defendants
provided did not give any reason for the reopening of the case
other than that the affiant was “making [the] declaration in
support of the United States’ legal defense of the APA action”
in this case. ECF No. 17-1 ¶ 2. The declaration fails to provide
any reason for why the agency reopened the petition, it just
simply states that it did. Id. ¶ 9.
Third, and perhaps most critical, the government’s request
for evidence is nearly identical to its prior request; and fails
to request evidence that it was not provided during its original
review of the petition. Courts that have held a reopening of an
agency decision rendered a prior decision nonfinal have focused
on whether new evidence was requested. For example, in True
Capital Mgmt., LLC v. U.S. Department of Homeland Security, the
court ruled that because the agency requested additional
information to clarify an inconsistency in the petitioner’s
immigration forms the prior decision was rendered nonfinal.
20 2013 WL 3157904, at *4 (N.D. Cal. June 20, 2013)(stating that
reopening the petition rendered agency action nonfinal because
the agency “[did] appear to seek additional information.”).
In this case, the agency has sought no new evidence. For
example, the new request for evidence requests a detailed
statement related to “the actual duties the beneficiary will
perform, indicat[ing] the percentage of time devoted to each
duty; explain[ing] how the educational requirements relate to
these duties.” Defs.’ Mot. to Dismiss, ECF No. 12-1, Ex. A. p.5.
The prior RFE required a detailed statement related to “the
beneficiary’s proposed duties and responsibilities, indicat[ing]
the percentage of time devoted to each duty; and stat[ing] the
educational requirements for these duties.” AR 52. The new RFE
requests “any evidence you believe that a bachelor’s or higher
degree or its equivalent is normally the minimum requirement for
entry into the particular position.” Defs.’ Mot. to Dismiss, ECF
No. 12-1, Ex. A. p.6. The previous RFE requested “any evidence
you believe will establish that the position qualifies as a
specialty occupation.” A.R. 52. 2
Although not mirror images, the information requested is
the same. Plaintiffs have already provided this information in
2 These are just two examples. Indeed some requests not only ask for the same information but use identical wording. Compare Defs.’ Mot. to Dismiss, ECF No. 12-1, Ex. A. p. 7 (requesting letters from professional associations) with AR 52 (same). 21 response to the defendants prior RFE. See AR 8–49; 54–85, 95–
188. It is unclear what purpose, if any, is served by requesting
and reviewing the exact same information, and expecting such
review to lead to a different result. Because the agency has
failed to request any new information when it attempted to
reopen the petition, the Court finds the circumstances of the
reopening highly suspect and contrary to the regulations.
Under the circumstances presented in this case, defendants’
failure to follow its own regulation related to reopening the
case, defendants’ failure to request any new evidence for the
agency to consider, and defendants’ failure to provide any
reason for why the agency chose to reopen the case, the Court is
left with no choice but to conclude that the agency has reopened
the case in name only. See Mantena, 2018 WL 3745668, at *6.
Therefore, the Court finds the agency action to be final.
Accordingly the government’s motion to dismiss for failure to
state a claim is DENIED.
B. Plaintiffs’ Motion for Summary Judgment
Plaintiffs are entitled to the relief sought if the
defendants’ denial of the H1-B petition was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law. 5 U.S.C. § 706(2)(A). Plaintiffs argue that
defendants acted arbitrary and capricious in concluding that
there was not a specialty occupation.
22 A “specialty occupation” is “an occupation that requires
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.”
8 U.S.C. § 1184(i)(1). By regulation, to qualify as a specialty
occupation, the position must meet at least one of four
criteria: (1) a baccalaureate or higher degree 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 the position is so
unique or complex that only an individual with a degree can
perform it; (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 the knowledge
required to perform the duties is usually associated with
attainment of a baccalaureate degree or higher. 8 C.F.R.
§ 214.2(h)(4)(iii)(A).
The January 23, 2019 decision denying the petition
explained that the four criteria mentioned in the regulation are
necessary but not sufficient to establish that a position is a
specialty occupation. AR 2. The decision explains that in order
to read the statute and regulations together “USCIS consistently
interprets the term ‘degree’ in the criteria [set forth in] 8
23 CFR § 214.2(H)(4)(iii)(A) to mean not just any bachelor’s or
higher degree, but one in a specific specialty that is directly
related to the proffered position.” Id. The decision goes on to
discuss the regulatory criteria and attempts to explain why the
plaintiffs’ failed to prove, by the preponderance of the
evidence, that the criteria were met. Id. 3–6.
The decision first determined that plaintiffs failed to
prove by the preponderance of the evidence that a bachelor’s
degree or higher is normally the minimum requirement for entry
into a Data Analyst position. AR 3. The decision focused on the
US Department of Labor’s Occupational Outlook Handbook (“OOH”),
a document that the USCIS “often looks to . . . when determining
whether a job qualifies as a specialty occupation” because the
OOH “provides specific and detailed information regarding the
educational and other requirements for occupations.” Id. After
explaining that the Data Analyst category was part of the
computer occupations category, the agency determined that the
“OOH does not contain detailed profiles for the computer
occupations category.” Id. The agency recognized OHH also
incorporates the Department of Labor (“DOL”) O*NET Program which
is “the nation’s primary source for occupational information.”
AR 3–4; 129. However, the agency determined that a “reference in
the USDOL’s O*NET, standing alone, fails to establish that an
occupation is a specialty occupation.” AR 3–4.
24 What the agency overlooked, however, is that plaintiffs did
not just make a general reference to O*NET. Rather, plaintiffs
stated that the Data Analyst position is aligned with the DOL’s
“Business Intelligence Analyst” position for which there is a
detailed description that is directly relevant to the inquiry of
whether the position is specialized. See AR 56. The explicit
O*NET cross reference to Business Intelligence Analyst (SOC Code
15-1199.08) contained in the OOH listing for “Computer
Occupations, All Other” defines the technological and
educational requirements for the position and explains that
“[m]ost of these occupations require a four-year bachelor's
degree, but some do not” with further detail that more than 90%
of Business Intelligence Analyst positions require at least a
bachelor’s degree. See AR 134.
The OOH itself also explains that the typical entry level
education for “Computer occupations, all other” is a “Bachelor’s
Degree.” ECF No. 7-1, Ex. A. Since the OOH indeed does provide
specific detailed information regarding educational requirements
for the computer operations category, and the detailed
information states most of the occupations require a four-year
bachelor’s degree, the agency’s rationale was both factually
inaccurate and not supported by the record.
The agency was also arbitrary and capricious when it
determined that the degree requirement was not common to the
25 industry in parallel positions among similar organizations. AR
4–5. The agency stated that factors often considered include
“whether the OOH reports that the industry requires a degree;
whether the industry’s professional associations have made a
degree a minimum entry requirement; or whether letters or
affidavits from firms or individuals in the industry attest that
such firms routinely employ and recruit only degreed
individuals.” AR 4. As for the first factor, the Court has
already explained that the agency ignored OOH’s information
indicating that the industry requires a bachelor’s degree. And
as for the last requirement, plaintiffs submitted an expert
opinion from Professor Gehrard Steinke which attested that
“firms similar to the petitioner’s routinely recruit and employ
only degreed individuals in the specific specialty.” AR 70. The
agency failed to address either the information found in OOH or
the expert opinion.
Furthermore, plaintiffs provided several job postings for
Data Analysts positions, all of which required, at minimum, a
bachelor’s degree. AR 59-64. The agency discounted this evidence
because “multiple fields of educations appear to be acceptable
for entry into the position of Data Analyst, according to the
job postings [plaintiffs] previously submitted.” AR 3–4. In
other words, because different types of degrees would allow
entry into Data Analyst position, the agency believed, a Data
26 Analyst position may never be specialized. Id. at 4 (“since
multiple fields of education are suitable for the position . . .
it is not one that is qualified as a specialty occupation”).
This position is untenable. There is no requirement in the
statute that only one type of degree be accepted for a position
to be specialized. The statute and regulations simply require
that a “position actually requires the theoretical and practical
application of a body of highly specialized knowledge, and the
attainment of a bachelor’s or higher degree in the specific
specialty [is a] minimum requirement for entry into the
occupation.” AR 3. In other words, if the position requires the
beneficiary to apply practical and theoretical specialized
knowledge and a higher education degree it meets the
requirements. Nowhere in the statute does it require the degree
to come solely from one particular academic discipline. As other
courts have explained “[d]iplomas rarely come bearing
occupation-specific majors. What is required is an occupation
that requires highly specialized knowledge and a prospective
employee who has attained the credentialing indicating
possession of that knowledge.” See Residential Fin. Corp. v.
U.S. Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 997
(S.D. Ohio 2012)(stating that when determining whether a
position is a specialized occupation “knowledge and not the
title of the degree is what is important.”); see also Tapis
27 Int'l v. I.N.S., 94 F. Supp.2 d 172, 175–76 (D. Mass.
2000)(rejecting a similar agency interpretation because it would
preclude any position from satisfying the “specialty occupation”
requirements where a specific degree is not available in that
field).
The record in this case establishes that Ms. Chatterjee
focus on Business Analytics, from the University of Cincinnati,
located in Ohio, USA. AR 34-35. While obtaining her Masters
degree, her course work included stimulation modeling, stat
computing, probability models, data mining, graduate case
studies, forecasting methods, and data management. AR 35.
Further, the record here explains Ms. Chatterjee’s specific job
duties. The bulk of her work, seventy percent, is as follows:
Use SQL to extract data to describe user behavior on
LexisAdvance, accessing the correct data sources, checking data
integrity, and ensuring overall data quality (30%); Use R,
Python, or other statistical programming software to program
analyses and generate reports leveraging proper statistical
techniques such as ANOVA, t-tests, linear models, or logistic
regression so that decisions on A/B test results are made with
full statistical confidence (20%); Perform exploratory data
analyses using tools like Rand Python; techniques such as
descriptive statistics, k-means clustering, hierarchical
28 modeling, and dimensionality reduction (20%). AR 55-56. In light
of both her education and her specific duties, the record
indicates that a minimum requirement for entry into the position
of a Data Analyst is the specialized course of study in which
Ms. Chatterjee engaged.
In short, the LexisNexis position was a distinct occupation
which required a specialized course of study, notwithstanding
the fact that the study included several specialized fields. Ms.
Chatterjee completed that specialized course of study in the
relevant fields and LexisNexis has employed her exactly because
she has the specialized skills to perform the duties of the
position and requisite educational requirements. The mountain of
evidence submitted by LexisNexis to support the petition more
than meets the preponderance of the evidence standard. The
agency’s decision was not “based on a consideration of the
relevant factors” and was “a clear error of judgment.” See
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416
(1971). USCIS acted arbitrarily, capriciously, and abused its
discretion in denying employer's petition for H–1B visa status
on behalf of Ms. Chatterjee. Accordingly, the plaintiffs’ motion
for summary judgment is GRANTED.
IV. CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is
DENIED and plaintiffs’ motion for summary judgment is GRANTED.
29 Accordingly, the defendants shall grant plaintiffs’ petition and
is FURTHER ORDERED to change Ms. Chatterjee's status to H–1B
nonimmigrant. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge August 5, 2019