United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR
F. COX UNITED STATES DISTRICT JUDGE.
visa allows a non-immigrant to be admitted into the United
States to perform services in a specialty occupation.
Plaintiff KPK Technologies, Inc., an information technology
company that provides professionals to a staffing agency,
filed a petition for an H-1B visa for its employee, Plaintiff
Muralikrishna Killi. On December 27, 2018, the United States
Citizenship and Immigration Services (“USCIS”)
denied the petition, concluding that Plaintiffs had failed to
establish that Killi would be working in a specialty
occupation at his end-client placement.
February 4, 2019, KPK and Killi filed this action for
judicial review of the USCIS's decision. Because this
case is governed by the Administrative Procedure Act
(“APA”), the parties agreed to an expedited,
four-brief schedule. Plaintiffs filed a motion for summary
judgment, the disposition of which will decide this case as a
matter of law. The Court heard oral arguments on this motion
on August 30, 2019.
reasons below, the Court will deny Plaintiffs' motion for
summary judgment. As the parties confirmed at the August 30th
hearing, the Court's disposition of this motion resolves
this case. Accordingly, the Court will enter judgment in
favor of the Defendant.
an information technology company “providing
computer-related services.” (ECF No. 9, PageID 779). In
2018, KPK contracted with a professional staffing firm,
KFORCE, to supply information-technology personnel to
KFORCE's customers. (ECF No. 10, PageID 810). KPK and
KFORCE agreed that Killi-a KPK employee-would perform
software development services for PeaceHealth-a KFORCE
client. (ECF No. 8-2, PageID 700). PeaceHealth is a
not-for-profit healthcare system headquartered in the State
3, 2018, KPK filed a petition for a H-1B visa on Killi's
behalf. (ECF No. 8, PageID 462-590). The petition included
the following materials: a cover letter from KPK with a
description of the roles and responsibilities of the offered
position, a completed labor condition application, copies of
Killi's Indian passport and then-operative American visa,
a copy of the subcontractor agreement between KPK and KFORCE,
Killi's employment agreement with KPK, documentation
regarding Killi's previous employment and education, and
documentation regarding KPK's business practices and
September 7, 2018, KPK requested that the USCIS upgrade
Killi's petition to “premium processing.”
(ECF No. 8-2, PageID 561). KPK submitted the following
materials with this request: a cover letter from KFORCE
describing Killi's placement at PeaceHealth and his
general employment responsibilities, a copy of Killi's
Peacehealth-issued ID badge, Killi's wage history, and
September 21, 2018, the USCIS issued a “request for
evidence.” (ECF No. 8-2, PageID 591-606). USCIS asked
KPK to provide additional evidence on Killi's worksite,
the employer-employee relationship between KPK and Killi, and
KPK's right to control Killi.
also asked KPK to provide evidence that Killi's position
qualified as a specialty occupation “based on the work
requirements imposed by the end-client who uses [Killi's]
services.” (ECF No. 8-2, PageID 595) (citing
Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir.
2000)). USCIS provided a non-exhaustive list of evidence that
it would accept to meet this requirement. (ECF No. 8-2,
December 14, 2018, KPK provided information in response to
the USCIS's request, including a letter from KPK (with
business records related to Killi's duties and
performance), a redacted client-services agreement between
KFORCE and PeaceHealth, a letter from KFORCE confirming
Killi's placement at PeaceHealth, government and private
sector postings describing software development as a
specialty occupation, and additional evidence regarding
also provided a letter from PeaceHealth, dated October 26,
2018. The letter stated
Mr. Killi is a competent IT professional with knowledge and
skills required for the assigned project. For this purpose,
KPK promised, warranted and confirmed that such Software
Developer has at least [a] Bachelor's degree in Computer
Science, Engineering or a closely related specialty field
with at least four years related experience, and that Mr.
Killi has the necessary training and up-to-date technological
theoretical skills to perform the complicated job functions
for this specialty occupation.
(ECF No. 8-2, PageID 683). The PeaceHealth letter also stated
that, “[s]ome of the tasks that Mr. Killi will perform
as part of this project are:”
• Analyze business requirements from the business users
and perform technical evaluation for implementing changes in
the Lawson/Infor environment.
• Work on IPA (Infor Process Automation) flows using IPD
(Infor Process Designer) tool that is ...