Altimetrik Corp. v. United States Citizenship

          ORDER DENYING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 11, 16] AND DISMISSING PLAINTIFF’S CAUSE OF ACTION

          Denise Page Hood, United States District Judge

         Plaintiff Altimetrik Corporation (“Plaintiff”) filed this lawsuit pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, against Defendant L. Francis Cissna, as Director of the United States Citizenship and Immigration Services (“Defendant” or “USCIS”). Plaintiff seeks judicial review of Defendant’s decision to deny the five petitions for an H-1B visa Plaintiff had filed on behalf of: Arvind Elangovan, Arunshenbagaraj Manoharan, Ms. Pankhurree, Shriharsha Hudugur Shripathy, and Shishir Kumar Mijar. Plaintiff has filed two motions for summary judgment. [ECF Nos. 11, 16] For the reasons discussed below, the Court DENIES both of Plaintiff’s motions and DISMISSES Plaintiff’s cause of action.

         I. Background

         Plaintiff is “an information technology ‘professional services’ organization, specializing in IT project management and solutions.” Plaintiff originally filed this lawsuit on June 4, 2018, seeking review of the denials of an H-1B visa for each of five individuals. A brief description of the claim and process for each of the five individuals is set forth below.

         A. Arvind Elangovan

         On April 3, 2017, Plaintiff filed an H-1B visa petition for Elangovan, one of its employees in India, for a full-time position as a Software Engineer. Defendant issued a Request for Evidence (“RFE”) for this petition on July 20, 2017, and Plaintiff responded on or about October 17, 2017 with the following evidence: position description letter; employment agreement; contract agreements between Plaintiff and PayPal; statement of work between PayPal and Plaintiff; sample performance evaluation; organizational chart; an Employer’s letter explaining why the proffered position is an entry Level I position (for Labor Condition Application) and why, even though it is an entry level position, it is still a specialty occupation for H-1B purposes; and an educational evaluation demonstrating that the beneficiary (Elangovan) holds the equivalent of a U.S. bachelor’s degree in Computer Science.

         On January 18, 2018, Defendant issued Plaintiff a Notice of Intent to Deny (“NOID”). In the NOID, Defendant raised evidence, which Plaintiff asserts was extraneous and in the form of unauthorized contact with Plaintiff’s customer, PayPal. Defendant claimed that the beneficiary (Elangovan) was working on an oversees project which would not be extended, but Plaintiff states that this was not the subject of, or in any way related to, the petition presented to Defendant. Plaintiff’s response to the NOID included: Contract Service Agreement between Plaintiff and PayPal, which replaced and updated the previous contract; Statement of Work for an ongoing project (People Analytics - to Build Workforce & Collaboration Platform) which was valid until March 16, 2018; Statement of Work for an ongoing project (Regulatory Platform Technology - Fircosoft Integration) which was valid until December 31, 2018; Statement of Work for an ongoing project (SALT - Project Goldfire) which was valid until December 31, 2018; and a confirmation letter from PayPal. On March 2, 2017, nearly a year after the application was filed, Defendant denied the petition for what Plaintiff argues was the arbitrary and capricious claim that Elangovan’s position was not a specialty occupation and that there was no employee-employer relationship.

         B. Arunshebagaraj Manoharan

         Plaintiff filed an H-1B petition to employ Manoharan on April 3, 2017. Manoharan was employed with Altimetrik India. USCIS issued an RFE regarding this petition on June 19, 2017, and Plaintiff responded on September 13, 2017 with the following evidence: an employment agreement; expanded position description for the beneficiary; contract agreements for current, ongoing projects for Plaintiff’s customers; documentation for Plaintiff’s products; a lease agreement for Plaintiff’s Rhode Island Office; Plaintiff’s most recent tax return; photos of Plaintiff’s Rhode Island office; an affidavit from Plaintiff demonstrating its regular, and consistent degree requirements for all Software Developer positions; and an education evaluation which demonstrates that the beneficiary holds the equivalent of a bachelor’s degree in Computer Science. On February 22, 2018 Defendant denied the petition on the grounds that Plaintiff: (a) did not document “sufficient specialty occupation work for the beneficiary to perform throughout the requested validity period, ” and (b) had not established that it had “specialty occupation work available for the beneficiary.”

         C. Ms. Pankhurree^[1]

         On April 3, 2017 Plaintiff filed an H-1B petition for Pankhurree, another of its India employees, for a full-time position as a software engineer . Defendant issued an RFE on or about June 16, 2017, to which Plaintiff responded on September 6, 2017 with the following evidence: employment agreement; contract agreements for current, ongoing projects for Plaintiff’s customers; documentation for Plaintiff’s products; a lease agreement for Plaintiff’s Rhode Island Office; Plaintiff’s most recent tax return; photos of Plaintiff’s Rhode Island office; educational evaluation to demonstrate that the beneficiary holds the equivalent of a U.S. bachelor’s degree in Computer Science; and an affidavit from Plaintiff demonstrating its regular, and consistent degree requirements for all Software Developer positions. On February 22, 2018, Defendant denied the petition on the grounds that Plaintiff did not document “sufficient specialty occupation work for the beneficiary to perform throughout the requested validity period, ” Plaintiff had not established that it had “specialty occupation work available for the beneficiary, ” and the record did not establish that the beneficiary qualified for the specialty occupation.

         D. Shriharsha Hudugur Shripathy

         On April 3, 2017 Plaintiff filed an H-1B petition for Shriharsha Hudugur Shripathy for a full-time position as a Product Engineer. Defendant issued an RFE on or about October 17, 2017, to which Plaintiff responded on January 12, 2018 with the following evidence: employment agreement; contract agreements with Plaintiff’s customers for ongoing projects; promotional material for Plaintiff’s products; 2 recent tax returns for Plaintiff; expanded position description letter; an affidavit from Plaintiff which demonstrates Plaintiff’s consistent business practice for requiring specific computer related degrees for all Software Developer positions; a statement from Plaintiff detailing why a Level 1 wage level wage was selected; organizational chart which demonstrates the beneficiary’s supervisory chain and confirms that this is an entry level position; and an educational evaluation demonstrating that the beneficiary foreign degree is the equivalent of a U.S. bachelor’s degree in Information Science and Engineering.

         On January 26, 2018, Defendant issued a NOID on the basis that Plaintiff’s New Jersey office was a virtual location. Plaintiff responded on February 27, 2018 with evidence for Plaintiff’s new office location in New Jersey and an explanation that, while the office location had changed, it was not a material change as the offices are a short distance apart and within the same metropolitan statistical area, and not a material change to the petition. On March 13, 2018, Defendant denied the petition, acknowledging that the office change was not material but concluding that no specialty occupation work was available for the beneficiary. Plaintiff argues that Defendant assumed – without any supporting facts and incorrectly – that the first office location was a virtual location and therefore could not have served as a viable work location.

         E. ...