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