United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT (ECF #9)
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE
Galaxy Software Solutions, Inc. filed a petition with
Defendant United States Citizenship and Immigration Services
(“USCIS”) to extend and amend an H-1B visa for
one of its alleged employees, Noopur Agarwal (the
“Petition”). USCIS denied the Petition. In this
action, Galaxy challenges that denial. Galaxy has now filed a
motion for summary judgment. (See Motion, ECF #9.)
For the reasons explained below, the motion is
describes itself as a “Project Management Consultancy
contractor” that acts as a “seamless extension of
[its] clients' IT organization.” (Galaxy Letter,
ECF #8-1 at Pg. ID 294.) Galaxy says that it employs
“approximately 47 full-time staff members, ”
including Ms. Agarwal. (Id.) On or about April 18,
2018, Galaxy filed the Petition with USCIS seeking to extend
and amend Ms. Agarwal's H-1B visa, which was set to
expire on June 27, 2018. (See Petition, ECF #8-1 at
Pg. ID 279-92.) Galaxy sought the extension and amendment of
Ms. Agarwal's H-1B visa so that Ms. Agarwal could remain
in the country and perform off-site work as a Systems
Analyst/Administrator for the Federal Reserve Bank of Atlanta
(“the Bank”). (See Id. at Pg. ID 282-83;
Fed. Reserve March 2018 Letter, ECF #8-1 at Pg. ID 296.)
H-1B visa that Galaxy sought to extend and amend on behalf of
Ms. Agarwal is a nonimmigrant (temporary) employment visa.
See USCIS, H-1B Visas for Temporary
Workers. Employers file petitions for H-1B visas on
behalf of individuals that they wish to bring into this
country and employ. See id. There are three
“types of individuals who may have petitions filed on
their behalf under the H-1B category, ” including those
working in a “specialty occupation.” Id.
As further explained below, when an employer petitions for an
H-1B visa in the specialty occupation category, it must show
that (1) it has “an employer-employee
relationship” with the visa beneficiary and (2) the
beneficiary's job “qualif[ies] as a specialty
Petition, Galaxy sought to amend and extend Ms. Agarwal's
H-1B visa under the specialty occupation category, and it
attempted to make the two required showings. To that end,
Galaxy submitted with the Petition (among other things):
1) A letter from Galaxy Vice President Dileep Tiwari
providing background about Galaxy and an overview of Ms.
Agarwal's responsibilities at the proposed Bank project.
(See Galaxy Letter, ECF #8-1 at Pg. ID 294-95.) In
the letter, Galaxy insisted that even though Ms. Agarwal
would be working for the Bank, Galaxy “would remain Ms.
Agarwal's actual employer with the exclusive right and
authority to hire, fire, supervise, set her compensation and
benefit levels.” (Id. at Pg. ID 295.)
2) A letter dated March 20, 2018, from the Bank describing
Ms. Agarwal's proposed job duties. (See Fed.
Reserve March 2018 Letter, ECF #8-1 at Pg. ID 296-97.) The
Bank said that Ms. Agarwal “is employed by Galaxy
Software Solutions, Inc. which directs and supervises her
activities, not the Federal Reserve Bank of Atlanta.”
(Id. at Pg. ID 297.) However, in an apparent
contradiction, the Bank also said that it had entered into a
contract with an entity called Agile 1 for vendor
management services, and that “[i]n connection with
that agreement, Noorpur Agarwal has been contracted by
Agile 1 to provide services to the Federal Reserve Bank
of Atlanta as a System Analyst/Administrator….”
(Id. at Pg. ID 296; emphasis added.)
3) Ms. Agarwal's paystubs from Galaxy. (See Id.
at Pg. ID 321-23.)
1, 2018, USCIS sent Galaxy a Request for Evidence
(“RFE”) asking for additional information to
support the Petition. (See RFE, ECF #8-1 at Pg. ID
62-69.) In the RFE, USCIS explained that the evidence that
had been submitted by Galaxy was deficient in two respects.
USCIS explained that the evidence did not establish
Galaxy's employer-employee relationship with Ms. Agarwal.
USCIS highlighted, among other things, (1) the confusion
created by Agile 1's apparent connection to Ms.
Agarwal's work at the Bank and (2) the lack of a specific
description concerning how Galaxy would control Ms.
Agarwal's day-to-day work off-site at the Bank:
Your petition documents the beneficiary's assignment of
work with Federal Bank of Atlanta (FRB of Atlanta). Agile 1
is the vendor through whom the beneficiary works to provide
services to FRB of Atlanta. The documentation provided does
not establish your right to control when, where, and how the
beneficiary performs the job with a third party employer.
(Id. at Pg. ID 64.) USCIS then identified for Galaxy
additional evidence that Galaxy could submit in order to
rectify the deficiencies in the evidence of its
employer-employee relationship with Ms. Agarwal. (See
id. at Pg. ID 64-65.)
USCIS said that Galaxy failed to demonstrate that Ms. Agarwal
would be “employed in a specialty occupation.”
(Id. at Pg. ID 63.) In USCIS' opinion,
Galaxy's submission did “not establish the depth,
complexity, level of specialization, or substantive aspects
of the duties for which [Ms. Agarwal] would be
responsible.” (Id. at Pg. ID 67.) USCIS then
identified for Galaxy a long list of evidence that Galaxy
could submit to establish that Ms. Agarwal would, in fact, be
performing a specialty occupation at the Bank. (See
id. at Pg. ID 67-68.)
21, 2018, Galaxy, through counsel, responded to the RFE.
(See Galaxy Counsel Letter, ECF #8-1 at Pg. ID
70-83.) The response included both additional evidence and
extended argument by counsel as to why USCIS should grant the
Petition. (See Id. at Pg. ID 86-251).
first attempted to demonstrate that it would have an
employer-employee relationship with Ms. Agarwal even though
she would be working at the Bank. To that end, Galaxy
submitted, among other things, a new letter from the Bank
stating that Galaxy would control Ms. Agarwal's work at
the Bank, evidence that Galaxy paid Ms. Agarwal, and employee
evaluation forms that Galaxy completed for Ms. Agarwal
showing that Galaxy was the entity that evaluated her
performance. (See Fed. Reserve June 2018 Letter, ECF
#8-1 at Pg. ID 87; Agarwal Paystubs, ECF #8-1 at Pg. ID
386-88; Agarwal Evaluation Forms, ECF #8-1 at Pg. ID 114-17.)
This information appeared to provide at least some support
for Galaxy's contentions that it employed Ms. Agarwal and
that it would control her work at the Bank.
Galaxy's response to the RFE also added to the confusion
surrounding the precise nature of Galaxy's relationship
with Ms. Agarwal and its connection to her work at the Bank.
For instance, while the materials that Galaxy initially
submitted in support of the Petition indicated that a third
party, Agile 1, played a role (along with Galaxy) in Ms.
Agarwal's placement at the Bank, Galaxy's response to
the RFE suggested for the first time that a different third
party - a never-before-identified entity called Zinncorp -
also played a role in Ms. Agarwal's assignment to the
Bank. Galaxy offered the following diagram to illustrate the
chain of relationships between itself and the Bank:
Galaxy (Petitioner) → Zinncorp (Vendor) → Agile
(Management Service Provider)→ Federal Reserve Bank ...