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Altimetrik Corp. v. USCIS

United States District Court, E.D. Michigan, Southern Division

August 21, 2019

ALTIMETRIK CORP., Plaintiff,
v.
USCIS, Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [11]

          Stephen J. Murphy, III United States District Judge.

         On June 4, 2018, Plaintiff Altimetrik Corp. ("Altimetrik") filed a complaint and alleged that Defendant United States Citizenship and Immigration Services ("USCIS") arbitrarily and capriciously denied its petition for an H-1B visa on behalf of its employee, Aravind Kumar Ravindran. ECF 1. On October 29, 2018, Altimetrik filed a motion for summary judgment. The Court reviewed the briefs and finds that a hearing is unnecessary. See. E.D. Mich. LR 7.1(f). For the reasons below, the Court will deny the motion.

         BACKGROUND

         Altimetrik is a "worldwide" "software and engineering development company." ECF 1, PgID 1. In December 2017, Altimetrik filed a petition for an H-1B visa on behalf of Ravindran. Id. at 2. Altimetrik then hired Ravindran, and Ravindran began working as a full-time employee for Altimetrik in its Princeton, New Jersey office. Id.; ECF 10-1, PgID 88. In January 2017, USCIS requested additional evidence from Altimetrik to support its petition for Ravindran's H-1B visa. ECF 1, PgID 2. In February 2017, Altimetrik provided additional evidence, and in March 2017, USCIS denied the petition. Id. at 2-3. USCIS held that Altimetrik failed to meet its "burden of proving, by a preponderance of the evidence, eligibility for the benefit sought." ECF 10-1, PgID 71 (USCIS decision denying Altimetrik's petition).

         USCIS found that the provided evidence demonstrated only one project to which Altimetrik had assigned Ravindran, and that the project had already expired. See Id. at 70. USCIS acknowledged that Altimetrik provided a statement of work for an additional project that would last until September 1, 2018-a date that had not yet passed. Id. But USCIS noted that Altimetrik provided no evidence that Ravindran was assigned to the second project, and emphasized that the second project's statement of work listed only two roles to be filled by Altimetrik's Princeton office- neither of which matched Altimetrik's title for or description of Ravindran's role. Id. USCIS explained that it was "unable to conclude that" Altimetrik met its burden because "of the inconsistencies in the record." Id. at 71.

         STANDARD OF REVIEW

         A district court must "hold unlawful and set aside agency actions, findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2). The scope of review under § 706(2)(A) is narrow. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). "A reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (internal quotations and citation omitted). A reviewing court should set aside an agency decision that relies on factors other than those Congress intended the agency to consider, "entirely fail[s] to consider an important aspect of the problem," provides an explanation that is contradicted by the evidence, "or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Simms v. Nat'l Highway Traffic Safety Admin., 45 F.3d 999, 1004 (6th Cir. 1995) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

         A court reviews an agency's factual determinations "[u]nder the substantial evidence standard," determining only "whether those determinations are supported by substantial evidence on the record as a whole." Steeltech, Ltd. v. United States Envtl. Prot. Agency, 273 F.3d 652, 657 (6th Cir. 2001). A determination that "there was substantial evidence in the record for a result other than that arrived at by the [agency]" is insufficient. Id.

         DISCUSSION

         An H-1B visa allows "an alien" to come "temporarily to the United States to perform services . . . in a specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b). A "specialty occupation" is "an occupation that requires-(A) theoretical and practical application of a body of highly specialized knowledge, and (B) 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). A position must satisfy one of four criteria to qualify as a specialty occupation: (1) the normal, minimum, entry-level requirement for the position is a bachelor's degree or higher, (2) the analogous positions at similar organizations across the industry require a bachelor's degree or higher, (3) the specific employer "normally requires a degree or its equivalent for the position," or (4) the duties to be performed "are so specialized and complex that knowledge required to perform the duties is usually associated with" needing a bachelor's degree or higher. 8 C.F.R. § 214.2(h)(4)(iii)(A).

         To determine whether a position qualifies as a specialty occupation, "USCIS does not take the title of the position provided by the petitioning employer at face value." Altimetrik Corp. v. Cissna, No. 18-10116, 2018 WL 6604258, at *4 (E.D. Mich. Dec. 17, 2018) (citing Fast Gear Distrib., Inc. v. Rodriguez, 116 F.Supp.3d 839, 846 (E.D. Mich. 2015)). Rather, USCIS "considers the job duties of the offered position along with the petitioning employer's business operations to make a determination if the position actually requires skills of someone with a bachelor's degree." Fast Gear, 116 F.Supp.3d at 846. But here, USCIS found that Altimetrik failed to provide sufficient evidence to carry its burden of demonstrating, by a preponderance of the evidence, that Ravindran was offered a position with duties that required the skills of someone with a bachelor's degree. See ECF 10-1, PgID 71. The decision was not arbitrary or capricious, or an abuse of USCIS's discretion.

         USCIS explained the evidence that Altimetrik provided and why that evidence was internally inconsistent and insufficient. Id. at 68-71. USCIS noted that Altimetrik submitted evidence that Ravindran was assigned to only one project-the "MBFS Playground Pilot project"-and that Altimetrik's evidence indicated that the "project ended on January 31, 2018." Id. at 69. USCIS further expressed concern that the statement of work that Altimetrik submitted for a second project included only two positions to be filled by Altimetrik's Princeton office, neither of which matched Ravindran's title or position description, and that Altimetrik did not provide any evidence that Ravindran was assigned to the second project. Id. at 70. Because Altimetrik's description of Ravindran's job duties did not align with any provided statement of work for an actual project Ravindran would be working on, USCIS reasonably concluded that the evidence was internally inconsistent. Id. As USCIS stated, Altimetrik provided insufficient evidence to establish by a preponderance of the evidence that Ravindran was hired to perform actual duties requiring the skills of someone with a bachelor's degree or higher. See id.

         Altimetrik's objection to USCIS's decision centers on its assertion that the decision "claims that it does not use a title to determine specialty occupation and that it must evaluate the duties to be performed, but . . . fails to make any discussion or analysis of the job duties" and "arbitrarily and capriciously ignores the job description provide by Altimetrik." ECF 11, PgID 302. But Altimetrik's objection to the decision misunderstands the decision. USCIS did not "ignore[]" Altimetrik's description of Ravindran's job. USCIS's decision looked at all of the evidence that Altimetrik provided regarding Ravindran's position and explained that Altimetrik did not provide any evidence of an unexpired project for which Ravindran would perform the duties that Altimetrik listed as his job duties. See ECF 10-1, PgID 69-71.

         Altimetrik titled Ravindran's position "Technical Lead" and provided a description of his job duties. Id. at 91-92. But Altimetrik provided evidence that Ravindran was assigned to only one project-a project that its evidence also indicated expired prior to the USCIS decision. See Id. at 191 (affidavit from Altimetrik's "HR Generalist" Lydia Keci, listing the project Ravindran is assigned to as "MBFS Playground Pilot"); Id. at 118 (statement of work between MBFS and Altimetrik noting that "[a]ny continued use of the virtual Playground beyond the end of January 2018 will be separately contracted."). And although Altimetrik provided a statement of work for a second project with MBFS, it provided no evidence that Ravindran was assigned to the second project. The statement of work for the second project does not include a position to be filled through Altimetrik's Princeton office that matches Altimetrik's own description of Ravindran's job. Compare Id. at 270 (statement of work for Altimetrik's second project with MBFS, providing that Altimetrik's Princeton office will supply only a "Senior developer" and an "Overall Governance" employee, and including a brief description of each position) with Id. at 91-92 (listing ...


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