Galaxy Software Solutions, Inc. v. United States Citizenship and Immigration Services

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF #9)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         Plaintiff 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 DENIED.

         I

         A

         Galaxy 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.)

         The 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.^[1] 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 occupation.” Id.

         In the 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^[2] 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.)

         B

         On May 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.

         First, 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.)

         Second, 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.)

         C

         On June 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).

         Galaxy 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.

         But 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 ...