UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STELLAR IT SOLUTIONS, INC. and : KARTIK KRISHNAMURTHY, : : Plaintiffs, : Civil Action No.: 18-2015 (RC) : v. : Re Document No.: 24 : UNITED STATES CITIZENSHIP AND : IMMIGRATION SERVICES, : : Defendant. :
MEMORANDUM OPINION
DENYING MOTION TO INTERVENE
I. INTRODUCTION
InDepth Engineering Solutions, LLC believes that the United States Citizen and
Immigration Services (“USCIS”) unlawfully denied its petition for an H-1B visa. But instead of
bringing its own lawsuit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706,
InDepth seeks to intervene in a suit that was previously filed by another company involving a
different H-1B petition. As the Court will explain below, intervention under these circumstances
is inappropriate because it would result in undue delay, and because the two companies’ cases
are factually distinct. InDepth’s motion to intervene is therefore denied.
II. FACTUAL BACKGROUND
H-1B visas are a form of legal nonimmigrant status that grant the visa holder the legal
ability to remain in the United States temporarily. Under the H-1B program, American
employers are permitted to temporarily hire foreign citizens to work in “specialty occupation[s],”
8 U.S.C. § 1101(a)(15)(H)(i)(B), which the Immigration and Nationality Act defines as those requiring “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,” id. at § 1184(i)(1)(A)–(B).
After employers choose to participate in the H-1B program and find a foreign worker
they intend to hire, they must complete a two-step process. First, they must submit to the
Department of Labor a Labor Condition Application (“LCA”) identifying the specialty
occupation job being offered and verifying that they will comply with the requirements of the
program. See 8 U.S.C. § 1182(n)(1). Second, once the Department of Labor certifies the LCA,
the employer must submit the application to USCIS with a Form I-129 petition requesting that
the foreign worker be classified as an H-1B nonimmigrant worker. See 8 C.F.R. § 214.2(h)(4).
In this petition, the employer must establish that it has “an employer-employee relationship” with
the worker, “as indicated by the fact that [the employer] may hire, pay, fire, supervise, or
otherwise control the work of” the potential H-1B recipient. Id. at § 214.2(h)(4)(ii). The
employer also has the burden of establishing that the position offered is in fact a “specialty
occupation.” Id. at § 214.2(h)(1)(ii)(B)(1). To carry that burden, the employer must show that
the position satisfies at least one of four prerequisites:
(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
2 (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. at § 214.2(h)(4)(iii)(A).
InDepth is a Michigan-based consulting firm seeking to utilize the H-1B program to hire
a software developer named Manohar Goud Palsa. See Proposed Am. Compl. (“Am. Compl.”)
¶¶ 6, 22, ECF No. 24-1. The company provides mechanical design and engineering solutions in
a variety of industries, including automotive, alternative energy, and entertainment. Id. ¶ 6.
InDepth wishes to hire Mr. Palsa as a “Senior Product Engineer,” to work on-site at Fiat Chrysler
America, a company for whom InDepth apparently provides consulting services. Id. ¶¶ 22, 32.
According to USCIS, however, InDepth failed to establish that Mr. Palsa’s position qualified as a
specialty occupation. Id. ¶ 23. On November 2, 2018, the agency issued a decision denying
InDepth’s H-1B petition on the ground that the “record [did] not demonstrate the specific duties
the beneficiary [would] perform under contract for [InDepth’s] clients.” Id. InDepth now argues
that USCIS failed to consider a letter provided by Fiat Chrysler America that supposedly
described the specific duties of Mr. Palsa’s proposed position. Id. ¶ 32. InDepth thus claims that
USCIS’s decision violated the APA because it was “contradicted by the record and ignore[d]
critical evidence.” Id. ¶ 31.
Nearly four months after USCIS’s denial of the petition, InDepth filed a motion to
intervene in a case brought by Stellar IT Solutions, Inc. Stellar IT is a Maryland corporation that
provides professional software services, such as custom software development, web
development, and systems integration. Compl. ¶ 3, ECF No. 1. In 2018, the company applied
for an H-1B visa on behalf of a software engineer named Kartik Krishnamurthy. Id. ¶¶ 4, 10.
Stellar IT hoped to hire Mr. Krishnamurthy as a “Senior Project Manager Information
3 Technology,” to be performed on-site at Honda North America. See Compl., Ex. A at 88, 95,
ECF No. 1-5. The position’s responsibilities included “[e]stablish[ing] and implement[ing]
project management processes and methodologies for the IT community;” “work[ing] closely
across business and IT teams to drive effective selection of delivery and solutions partners;” and
“[d]riv[ing] insightful businesses and financial analytics to ensure that technology investments
are aligned to key company priorities.” Id. at 95.
USCIS concluded, however, that Stellar IT’s H-1B petition failed to prove that an
employment relationship existed or that Mr. Krishnamurthy’s position constituted a specialty
occupation. See Compl., Ex. C at 1–6, ECF No. 1-7. With respect to the employment
relationship issue, the agency reasoned that the “record remain[ed] absent of evidence regarding
the work at [Honda’s] facility,” id. at 3, and that Stellar IT had not proven that it would actually
“control” Mr. Krishnamurthy’s work while he worked at Honda, id. (citing 8 C.F.R.
§ 214.2(h)(4)(ii)). And with respect to the specialty occupation issue, USCIS said that Stellar IT
had (1) failed to establish that Honda required a bachelor’s degree in a specific specialty for Mr.
Krishnamurthy’s position, and (2) neglected to provide appropriate details explaining Mr.
Krishnamurthy’s daily job responsibilities and how Honda would utilize those services. Id. at 5.
Mr. Krishnamurthy and Stellar IT appealed USCIS’s decision with the agency’s
Administrative Appeals Office (“AAO”). See Compl., Ex. D, ECF No. 1-8. But while they
awaited a decision from the AAO, Mr. Krishnamurthy and Stellar IT filed suit in this Court.
Shortly thereafter, they moved for a preliminary injunction that would postpone the effectiveness
of USCIS’s decision and allow Mr. Krishnamurthy to remain in the United States and work
while the lawsuit was pending. See Compl. ¶ 2. On November 19, 2018, this Court granted the
motion for a preliminary injunction. Stellar IT Sols., Inc. v. U.S. Citizenship & Immigration
4 Servs., No. 18-2015, 2018 WL 6047413 (D.D.C. Nov. 19, 2018). The Court concluded that
Stellar IT and Mr. Krishnamurthy were “likely to succeed on the merits of their [APA] claim,”
id. at *10, because they “made a strong showing that USCIS’s explanation for denying the H-1B
petition r[an] counter to the evidence and resultingly lack[ed] a rational connection with the
record,” id. at *6. In granting the motion, though, the Court also noted that it was appropriate to
permit the AAO to rule on Stellar IT’s administrative appeal “before further judicial action
[took] place—both as a matter of respect for the agency’s decisionmaking process, and because
the AAO’s decision [could] moot or otherwise alter the merits of Plaintiffs’ claim under the
APA.” Id. at *12 (citation omitted). The Court thus stayed the case until the AAO’s ruling was
issued.
It was during that period when the case was stayed that InDepth moved to intervene,
claiming that the facts of its case are “virtually identical” to those of Stellar IT. Mem. Supp.
Mot. to Intervene at 5, ECF No. 24-2. USCIS disagrees and opposes the motion, arguing that
“intervention will only serve to complicate this lawsuit,” given the different factual bases of
InDepth and Stellar IT’s visa petitions. Def.’s Opp’n to Mot. to Intervene at 1, ECF No. 25.
USCIS also notes that Stellar IT’s appeal was recently denied by the AAO, which the agency
contends leaves the two companies’ cases in different stages of the review process. See id.;
Matter of S-S-N-, Inc., ID No. 3995624 (AAO Mar. 6, 2019), ECF No. 25-1.
III. ANALYSIS
Federal Rule of Civil Procedure 24(b) governs permissive intervention and provides that
the Court “may permit” a party to intervene if that party “has a claim or defense that shares with
the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). As its name
suggests, permissive intervention is an “‘inherently discretionary enterprise,’ and the court
5 enjoys considerable latitude under Rule 24(b).” Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5,
10 (D.D.C. 2007) (quoting EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046–48 (D.C.
Cir. 1998)). In exercising that discretion, courts weigh three factors set out by Rule 24(b): (1)
whether the motion to intervene is timely; (2) whether the applicant’s claim shares a question of
law or fact in common with the main action; and (3) whether intervention will unduly delay or
prejudice adjudication of the original parties’ rights. See Fed. R. Civ. P. 24(b); Sierra Club v.
McCarthy, 308 F.R.D. 9, 12 (D.D.C. 2015); In re Vitamins Antitrust Litig., No. Misc. 99-197,
2001 WL 34088808, at *2 (D.D.C. Mar. 19, 2001). Based on these three factors, a court can
deny a motion for permissive intervention— even if there is a common question of law of fact—
if intervention would cause undue delay, complexity, or confusion in a case. See Fed. R. Civ. P.
24(b)(3); see also Securities & Exch. Comm’n v. Everest Mgmt. Corp., 475 F.2d 1236, 1240 (2d
Cir. 1972) (“[T]he complicating effect of the additional issues and the additional parties
outweighs any advantage of a single disposition of the common issues.”); Love v. Vilsack, 304
F.R.D. 85, 89 (D.D.C. 2014) (holding organization’s thirteen-year delay in moving to intervene
to seek injunctive relief precluded permissive intervention).
Such is the case here. Even assuming InDepth’s motion is timely, intervention is not
appropriate because the other two factors weigh heavily against intervention. See Fed. R. Civ. P.
24(b). To the extent that InDepth’s and Stellar IT’s petitions implicate any common questions,
their differences still predominate. And those differences mean that intervention would
unnecessarily complicate, confuse, and delay this case. The Court therefore denies InDepth’s
motion.
6 A. Common Questions of Law or Fact
First, InDepth’s motion to intervene does not raise common questions of law or fact that
merit joint consideration with Stellar IT’s case. USCIS’s review of H-1B visa petitions, as a
general matter, is a fact-intensive enterprise, and courts’ review of the agency’s determinations is
based only on the evidence that was presented to the agency. 5 U.S.C. §§ 702, 706; Sage IT, Inc.
v. Cissna, 314 F. Supp. 3d 203, 207 (D.D.C. 2018) (“When reviewing an agency decision under
the APA, a court is limited to the administrative record and must determine whether the record
supports the agency’s decision.” (citation omitted)). Here, it does not appear that InDepth’s and
Stellar IT’s petitions share a single piece of evidence in common. And as far as the Court can
tell, the two job positions at issue in each of the petitions are different.
Stellar IT wants to change Mr. Krishnamurthy’s position to “Senior Project Manager
Information Technology,” a position apparently akin to a “Computer and Information Systems
Manager.” See Compl., Ex. A at 88; Bureau of Labor Statistics, Computer and Information
Systems Managers, Occupational Outlook Handbook (Apr. 13, 2018), https://www.bls.gov/ooh/
management/computer-and-information-systems-managers.htm. Mr. Palsa’s proposed title,
meanwhile, is “Sr. Product Engineering,” comparable to the duties of a software engineer or
developer. Am. Compl. ¶ 22; Mem. Supp. Mot. to Intervene at 3; Bureau of Labor Statistics,
Software Developers, Occupational Outlook Handbook (Apr. 12, 2018),
https://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm.
Although both positions involve work with computer technology in a broad sense, the specific
functional job responsibilities would seem to vary significantly. Mr. Krishnamurthy’s proposed
work would involve coordinating and managing a redesign of “a suite of portals” that allow for
“two way communication between Honda and [its] dealerships.” Stellar IT Sols., 2018 WL
7 6047413, at *4 (quoting Compl., Ex. D at 32). By contrast, Mr. Palsa would not direct or
coordinate the implementation of IT projects; he would be the “creative mind” behind bringing
those projects to life. Bureau of Labor Statistics, Software Developers; see also Am. Compl.
¶ 22. In light of these differences, the two companies’ claims are, as a factual matter, distinct.
Furthermore, Stellar IT’s case involves an additional legal question that is not at issue in
InDepth’s case—one that could prove dispositive. As noted above, USCIS denied Stellar IT’s
petition for two independent reasons: (1) the company had not proven that an employment
relationship existed, and (2) the company had not shown that Mr. Krishnamurthy’s new position
constituted a specialty occupation. See Compl., Ex. C at 3, 5–6. The AAO then affirmed on
both of these grounds in its subsequent written decision. See Matter of S-S-N-, Inc., ID No.
3995624 (AAO Mar. 6, 2019). Thus, in order to prevail on their APA claim, Stellar IT and Mr.
Krishnamurthy have to show that both grounds were erroneous. See Fogo De Chao (Holdings)
v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (“Where . . . an agency
has set out multiple independent grounds for a decision, ‘we will affirm the agency so long as
any one of the grounds is valid.’” (quoting BDPCS, Inc. v. FCC, 351 F.3d 1177, 1183 (D.C. Cir.
2003))).
InDepth’s petition seems to involve only one of those two issues, though: USCIS
apparently denied InDepth’s H-1B petition because the company failed altogether to provide a
description of Mr. Palsa’s job duties that demonstrated that his position constituted a specialty
occupation. See Am. Compl. ¶ 23. Thus, although InDepth claims the agency’s reasoning
underlying these two APA claims is “virtually identical,” Mem. Supp. Mot. to Intervene at 5, the
Court disagrees. Cf. Aziz v. Trump, 231 F. Supp. 3d 23, 29 (E.D. Va. 2017) (allowing
intervention where the “only obvious factual distinction” between parties was not essential to the
8 determination of the case). Given the distinct factual and legal nature of Stellar IT’s and
InDepth’s claims, and the fact that each of the decisions at issue are based on entirely distinct
administrative records, the Court concludes intervention would not “significantly contribute to . .
. the just and equitable adjudication of the legal question[s] presented.” Sierra Club, 308 F.R.D.
at 12 (quoting Ctr. for Biological Diversity v. EPA, 274 F.R.D. 305, 313 (D.D.C. 2011)).
B. Undue Delay or Prejudice
In addition to the problems posed by a lack of common issues of fact, permissive
intervention for InDepth would also unduly prejudice the adjudication of Stellar IT’s claim.
Given the factual differences in the case that the Court just mentioned, reviewing the separate
agency decisions and records would likely inject unnecessary complexity into this case, leading
to delay. And “any delay in adjudicating the rights of the parties is undue if there is no good
reason for it.” NYC C.L.A.S.H., Inc. v. Carson, No. CV 18-1711, 2019 WL 2357534, at *4
(D.D.C. June 4, 2019). Indeed, when no practical purpose is served by intervention, “permissive
intervention is inappropriate” because it would in no way “further resolution of the case.”
Voltage Pictures, LLC v. Vazquez, 277 F.R.D. 28, 33 (D.D.C. 2011).
InDepth nonetheless argues that intervention would actually “sav[e] the Court . . . the
needless expense of litigating an additional lawsuit on the exact same issues, possibly with
inconsistent results.” Mem. Supp. Mot. to Intervene at 5. But in making this assertion, InDepth
does not engage with the factual differences that the Court has already identified, and the
company fails to identify any case law that supports intervention in circumstances like these. In
fact, the three cases that InDepth does cite are easily distinguishable from this case. For
example, Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1235–36 (D.C. Cir. 2004), involved
not only “identical” legal questions, but also putative intervenors who “had already participated
9 extensively in the proceedings before the district court by submitting public comments in
response” to the issue at hand. Likewise, in TPI Corp. v. Merchant Mart of South Carolina, Inc.,
61 F.R.D. 684, 689–90 (D.S.C. 1974), the putative intervenors’ “claims and the main action
arose out of the same transaction,” and the facts were so closely intertwined that the court found
the intervenors’ involvement in the main case inevitable. See id. at 689 (“[T[he claims of
petitioner-intervenors will, of necessity, find their way into the present controversy.”). And
finally, EEOC v. National Children’s Center, 146 F.3d 1042, 1047 (D.C. Cir. 1998), involved a
“third party seek[ing] to intervene for the limited purpose of obtaining access to documents
protected by a confidentiality order.” Here, of course, InDepth asks far more of this Court—to
adjudicate an additional, factually distinct claim on the merits requiring it to review an
additional, separate administrative record. The Court is unable to see how that would save the
Court time.
To be sure, intervention might make things easier for Stellar IT and InDepth’s attorney—
as InDepth’s motion argues. See Mem. Supp. Mot. to Intervene at 5–6. But counsel’s desire to
coordinate a litigation strategy does not constitute a practical purpose that justifies intervention.
Indeed, this jurisdiction’s Local Rules are designed to prevent such forum selection. Local Civil
Rule 40.3(a) states that “[e]xcept as otherwise provided . . . cases shall be assigned to judges of
this Court selected at random.” The primary exception to that default rule applies to “related
cases,” but given the absence of factual commonalities here, that exception appears inapplicable.
See D.D.C. Civ. R. 40.5(a)(3) (“Civil . . . cases are deemed related when the earliest is still
pending on the merits . . . and they (i) relate to common property, or (ii) involve common issues
of fact, or (iii) grow out of the same event or transaction, or (iv) involve the validity or
infringement of the same patent.”).
10 InDepth must therefore subject itself to the random assignment process. In light of the
differences in the claims at issue, the Court is unable to discern any practical benefit that would
result from intervention. Instead, as the Court has already said, it would lead only to complexity
and delay. Intervention is thus unwarranted.
IV. CONCLUSION
For the foregoing reasons, InDepth’s motion to intervene is DENIED. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: July 30, 2019 RUDOLPH CONTRERAS United States District Judge