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KPK Technologies, Inc. v. Cuccinelli

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

September 16, 2019

KPK Technologies, Inc., and Muralikrishna Killi, Plaintiffs,
Kenneth T. Cuccinelli, II, [1] Acting Director of United States Citizenship and Immigration Services Defendant.



         An H-1B 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.

         On 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.

         For the 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.


         KPK is 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 of Washington.

         On May 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 regulatory compliance.

         On 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 Killi's timesheets.

         On 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.

         USCIS 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, PageID 595-596).

         On 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 Killi's qualifications.

         KPK 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 ...

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