Decor Team LLC v. McAleenan ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Decor Team LLC, et al., No. CV-19-05346-PHX-MTL 10 Plaintiffs, ORDER 11 v. 12 Kevin K McAleenan, et al., 13 Defendants. 14 15 Before the Court are the parties’ cross-motions for summary judgment. (Docs. 41, 16 43.) For the following reasons, Defendants’ motion is granted. Summary judgment is 17 granted to Defendants on all claims.1 18 I. BACKGROUND 19 A. Statutory Framework 20 The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., establishes 21 “a comprehensive federal statutory scheme for regulation of immigration and 22 naturalization.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 587 (2011) 23 (internal quotations and citation omitted). The INA imposes a numerical quota on the 24 number of immigrant visas that may be issued for permanent residence in the United States. 25 See 8 U.S.C. § 1151(a); Elgamal v. Bernacke, No. CV-13-00867-PHX-DLR, 2016 WL 26 3753524, at *1 (D. Ariz. July 14, 2016) (recognizing that numerical quotas are imposed 27 1 Neither party has requested oral argument. Both parties have submitted legal memoranda 28 and oral argument would not have aided the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). 1 because “thousands of aliens seek immigrant visas to enter the United States” each year) 2 (citation omitted). The INA also prioritizes and limits eligibility to certain categories of 3 immigrants, such as those who are family-sponsored or, as is the case here, employment- 4 based. See 8 U.S.C. § 1153(a)-(b). 5 To achieve temporary, nonimmigrant status, an employment-based applicant may 6 apply for an L-1A visa. This type of visa is available to “an alien who within the preceding 7 three years has been employed abroad for one continuous year by a qualifying 8 organization” and who will be employed by that employer in the United States “in a 9 capacity that is managerial, executive, or involves specialized knowledge . . .” 8 10 U.S.C. § 1101(a)(15)(L); 8 C.F.R. § 214.2(l). An L-1A visa may be extended in increments 11 of up to two years, but the total period may not exceed seven years. 8 12 C.F.R. § 214.2(l)(15)(ii). 13 For employment-based immigrants, achieving permanent adjustment of status is 14 generally a three-step process. First, the individual’s employer (the “petitioner”) files a 15 labor certification application with the U.S. Department of Labor. See 8 16 U.S.C. § 1182(a)(5)(A)(i). Second, the employer files an I-140 petition with United States 17 Citizenship and Immigration Services (“USCIS”) on behalf of the immigrant worker (the 18 “beneficiary”). Id. § 1154(a)(1)(F). Third, if the I-140 petition is approved, the beneficiary 19 files an I-485 application with USCIS to adjust his or her status to a lawful permanent 20 resident.2 See id. § 1255(a); 22 C.F.R. §§ 42.32(e), 42.41, 42.42. 21 This process does not guarantee lawful permanent resident status. USCIS may 22 revoke an approved I-140 petition “at any time, for what [the Secretary of Homeland 23 Security] deems to be good and sufficient cause[.]” 8 U.S.C. § 1155; 8 C.F.R. 24 § 103.2(b)(6). Additionally, an employer may withdraw an I-140 petition for any reason 25 and “at any time until a decision is issued by USCIS or, in the case of an approved petition, 26 27 2 If located outside the United States, the beneficiary may initiate the permanent residency process by applying for an immigrant visa from the State Department at the United States 28 consular post in his or her home country. 8 U.S.C. § 1255(a); 22 C.F.R. §§ 42.32(e), 42.41, 42.42. 1 until the person is admitted or granted adjustment or change of status, based on 2 the petition.” 8 C.F.R. § 103.2(b)(6). Further, an immigrant is also ineligible for 3 employment-based adjustment of status if he “accepts unauthorized employment prior to 4 filing an application for adjustment of status,” “is in unlawful immigration status on the 5 date of filing the application for adjustment of status,” or “seeks [employment-based] 6 adjustment of status . . . and is not in a lawful nonimmigrant status.” 8. U.S.C. § 1255(c). 7 Finally, even an I-140 approval “does not guarantee or entitle an immigrant to lawful 8 permanent resident status.” Kompella v. United States Citizenship & Immigration Servs., 9 No. CV-20-00190-PHX-DJH, 2020 WL 4383815, at *1 n.1 (D. Ariz. June 12, 2020) 10 (citation omitted). 11 B. Factual and Procedural History 12 As the Court noted in a previous order, Plaintiff Décor Team, LLC (“Décor Team”) 13 is an Arizona company specializing in premium custom curtains and home dressing 14 solutions. (Doc. 1 ¶ 6; Doc. 38 at 1.) Décor Team is a subsidiary of Deco Team Curtains 15 and Upholstery (“Deco Team”), an Israeli company. (Id. ¶ 20.) Plaintiff Shai Avisira, a 16 citizen of Israel, is the CEO of Décor Team and has resided in the United States since 2013. 17 (Id. ¶ 20.) Defendants were, at the time Plaintiffs filed the Complaint, the Acting Secretary 18 of the Department of Homeland Security, the Acting Director of USCIS, the Associate 19 Director of USCIS Service Centers, and the Director of the USCIS California Service 20 Center, respectively.3 (Id. ¶¶ 8–11.) This case arises out of Décor Team’s application to 21 secure employment-based permanent resident status for Mr. Avisira. (Doc. 1.) 22 In May 2013, USCIS approved an initial L-1A visa (temporary non-immigrant 23 status) for Mr. Avisira. (Id. ¶ 21.) Mr. Avisira subsequently sought and obtained three 24 extensions, the final of which expired on May 8, 2020. (Doc. 28 at 7, ¶¶ 6- 9.) On May 2, 25 3 On the Court’s information and belief, at least some of the named Defendants, sued in 26 their official capacity only, no longer hold their respective positions. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, “[a]n action does not abate when a public officer 27 who is a party in an official capacity . . . resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party.” Fed. 28 R. Civ. P. 25(d). The Court considers the named Defendants’ respective successors to be the proper Defendants at the time of this Order. 1 2018, Décor Team submitted an I-140 petition on Mr. Avisira’s behalf for an employment- 2 based EB-1C immigrant visa, which is commonly referred to as a “permanent residence” 3 or a “green-card” visa. (Doc. 1 ¶ 2; Doc. 33 at 12.) An EB-1C may be issued to “[c]ertain 4 multinational executives and managers” who serve “in a capacity that is managerial or 5 executive.” 8 U.S.C. § 1153(b)(1)(C). Décor Team’s I-140 petition stated that it sought to 6 employ Mr. Avisira as its Chief Executive Officer and that it would pay him “wages” of 7 “$84,000.00 per year.” (Doc. 20 at 24, 46.) 8 On July 30, 2019, USCIS denied the I-140 petition for three independent reasons. 9 First, Plaintiffs failed to establish that the position at Décor Team qualified as a managerial 10 or executive role. Second, Plaintiffs did not establish that Mr. Avisira’s prior position 11 abroad qualified as managerial or executive. Third, USCIS found that Décor Team did not 12 establish its ability to pay Mr. Avisira’s proffered wage. (Doc. 20 at 1-11); see also 8 C.F.R. 13 § 204.5(g)(2), (j)(2). 14 Plaintiffs filed a Complaint for Declaratory Relief in this Court on October 8, 2019.4 15 (Doc. 1.) They allege that the denial of Mr. Avisira’s I-140 petition was arbitrary, 16 capricious, or an abuse of discretion under the Administrative Procedure Act (the “APA”). 17 Defendants filed the sealed Certified Administrative Record on February 21, 2020. (Docs. 18 20–26; hereinafter “CAR”). 19 Plaintiffs filed a motion for temporary restraining order on February 28, 2020, 20 asking the Court to “maintain the lawful presence” of Mr. Avisira and his derivative spouse 21 pending the outcome of this case. (Doc. 28 at 5.) The Court denied that motion, finding 22 that the relief sought was not “of the same character” as the relief sought in the Complaint. 23 (Doc. 38 at 3.) Plaintiffs have since filed a motion for summary judgment, to which 24 Defendants responded with a cross-motion for summary judgment. (Docs. 41, 43.) Both 25 motions are now fully briefed. (Docs. 46, 47.) 26 27 4 Plaintiffs did not appeal the denial of their I-140 petition to the Administrative Appeals 28 Office, which is a permissive administrative remedy. (Doc. 1 ¶ 14); Ilyabaev v. Kane, 847 F. Supp. 2d 1168, 1175 (D. Ariz. 2012). 1 II. LEGAL STANDARDS 2 Summary judgment is appropriate if the evidence, viewed in the light most favorable 3 to the nonmoving party, demonstrates “that there is no genuine dispute as to any material 4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 5 genuine issue of material fact exists if “the evidence is such that a reasonable jury could 6 return a verdict for the nonmoving party,” and material facts are those “that might affect 7 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 8 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he evidence of the non-movant 9 is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 10 (internal citations omitted); see also Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 11 1131 (9th Cir. 1994). Substantive law determines which facts are material and “[o]nly 12 disputes over facts that might affect the outcome of the suit under the governing law will 13 properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. “A fact 14 issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the 15 nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 16 2002) (quoting Anderson, 477 U.S. at 248). 17 Courts routinely resolve APA challenges by summary judgment. See, e.g., 18 Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1481 (9th Cir. 1994). 19 In so doing, courts are generally limited to reviewing the administrative record already in 20 existence. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602 (9th 21 Cir. 2014). The district court “is not required to resolve any facts in a review of an 22 administrative proceeding.” Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 23 1985). 24 III. DISCUSSION 25 The APA permits judicial review of a “final agency action for which there is no 26 other adequate remedy in court.” 5. U.S.C. § 704. The Court may only set aside the 27 underlying agency decision if it is “arbitrary, capricious, an abuse of discretion, or 28 otherwise not in accordance with law.” Id. § 706(2)(A). Plaintiffs argue, first, that the 1 denial of the I-140 petition following prior approvals of Mr. Avisira’s L-1A visa was, in 2 itself, arbitrary and capricious. Plaintiffs further argue that each of USCIS’s three grounds 3 for denying the I-140 petition were arbitrary and capricious. Defendants dispute each of 4 these arguments and assert that, because the evidence contained in the administrative 5 record supports USCIS’s decision to deny Décor Team’s I-140 petition, they are entitled 6 to summary judgment. (Doc. 43 at 7.) The Court addresses the parties’ arguments in turn. 7 A. Prior L-1A Approvals 8 Plaintiffs first argue that Defendants’ actions were arbitrary and capricious because 9 “from 2013 until the present, Décor Team has employed Mr. Avisira as an L-1A 10 multinational manager or executive, the nonimmigrant version of the EB-1C petition that 11 is now in dispute.” (Doc. 41 at 11.) They note that the requirements for L-1A and EB-1C 12 visas are “nearly identical,” and argue that the denial of Plaintiffs’ I-140 petition in this 13 context is, “by definition, capricious” and “nothing but arbitrary.” (Id. at 11–12.) 14 The Court is not convinced by these arguments. As Plaintiffs concede, the 15 requirements for the two visas are “nearly,” but not, identical. (Doc. 41 at 11); compare 8 16 C.F.R. § 214.2(l)(1)(ii)(B), (C) with 8 C.F.R. § 204.5(j)(2); 8 U.S.C. § 1101(a)(44)(A), (B). 17 Further, as a general matter, USCIS is not bound by its previous decisions. See Seven Star, 18 Inc. v. United States, 873 F.2d 225, 227 (9th Cir. 1989) (“[A] decision by an administrative 19 agency in one case does not mandate the same result in every similar case in succeeding 20 years.”). There is an exception for administrative decisions specifically designated as 21 precedential. 8 C.F.R. § 103.3(c). Here, no party asserts that the prior L-1A visa approvals 22 were precedential; as such, these decisions are not binding with respect to the I-140 23 petition. Cf. R.L. Inv. Ltd. Partners v. I.N.S., 86 F. Supp. 2d 1014, 1024–25 (D. Haw. 2000), 24 aff’d, 273 F.3d 874 (9th Cir. 2001) (“It would be ridiculous to require the INS to grant a 25 petition because it had previously granted a similar petition by mistake. That is precisely 26 why unpublished decisions do not create precedent. The agency recognizes that they may 27 be unimportant for wider purposes or, for that matter, may be questionable.”). To “conclude 28 otherwise would impermissibly shift the burden from the petitioner, who bears the burden 1 to establish entitlement to the visa, to USCIS to show that an earlier decision was 2 mistaken.” Healthy & Nat. Trading LLC v. United States Dep’t of Homeland Sec., No. CV 3 14-2332 PA (EX), 2014 WL 12564125, at *4 (C.D. Cal. Nov. 12, 2014), aff’d sub nom. 4 691 F. App’x 437 (9th Cir. 2017). 5 In addition, as the Court previously noted, the L-1A visa and I-140 petitions serve 6 different functions. An “approved L-1A petition allows a foreign citizen to work, 7 temporarily, for the same company in the United States in a managerial, executive, or 8 specialized position.” (Doc. 38 at 4.) In contrast, “an approved I-140 petition is part of a 9 three-step process for obtaining an EB-1C visa, which affords lawful permanent 10 residency.” (Id.) Courts have noted this distinction in confirming that USCIS is not bound 11 by its L-1A visa determinations in assessing a subsequent I-140 petition. See, e.g., Noble 12 House, Inc. v. Wiles, No. CV 12-7816 PA RZX, 2013 WL 1164093, at *7 (C.D. Cal. Mar. 13 19, 2013) (“The benefits associated with the granting of an I-140 petition—permanent 14 residence—are sufficiently distinct from the status provided by a L-1A visa—temporary 15 non-immigrant status—that the results of USCIS’s analysis of an I-140 petition need not 16 automatically mimic the conclusion USCIS reached when it approved an L-1A visa 17 application[.]”). For these reasons, the Court agrees with Defendants that USCIS’s prior 18 approvals of Mr. Avisira’s L-1A visas do not, in themselves, render the subsequent denial 19 of the I-140 petition arbitrary or capricious. 20 B. “Managerial” or “Executive” Position in United States 21 The Court now turns to the substantive bases for USCIS’s denial of Plaintiffs’ I-140 22 petition. First, USCIS denied the petition because Décor Team failed to demonstrate that 23 the position offered to Mr. Avisira in the United States qualified as a “managerial” or 24 “executive” position. (CAR at 3.) Plaintiffs argue that Mr. Avisira’s job duties make clear 25 that he works in a managerial or executive capacity. (Doc. 41 at 12.) Defendants, in turn, 26 assert that USCIS’s determination was “consistent with the governing statute and 27 regulations and is supported by the administrative record.” (Doc. 43 at 32.) As discussed 28 below, the Court agrees with Defendants. 1 The INA defines “executive capacity” as an assignment within an organization in 2 which the employee primarily: 3 (A) Directs the management of the organization or a major 4 component or function of the organization; (B) Establishes the goals and policies of the organization, 5 component, or function; 6 (C) Exercises wide latitude in discretionary decisionmaking; and 7 (D) Receives only general supervision or direction from higher 8 level executives, the board of directors, or stockholders of the organization. 9 10 8 C.F.R. § 204.5(j)(2). “Managerial capacity” means an assignment in which the employee 11 primarily: 12 (A) Manages the organization, or a department, subdivision, 13 function, or component of the organization; (B) Supervises and controls the work of other supervisory, 14 professional, or managerial employees, or manages an essential function within the organization, or a department 15 or subdivision of the organization; 16 (C) If another employee or other employees are directly supervised, has the authority to hire and fire or recommend 17 those as well as other personnel actions (such as promotion 18 and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the 19 organizational hierarchy or with respect to the function 20 managed; and (D) Exercises direction over the day-to-day operations of the 21 activity or function for which the employee has authority. 22 Id. 23 1. Job Duties 24 In response to Plaintiffs’ initial I-140 application, USCIS acknowledged that Décor 25 Team had “provided a letter that lists a breakdown of the beneficiary’s job duties for the 26 U.S. position.” (CAR 653.) It found, though, that the job duties were provided in “broad 27 and ambiguous terms” and did not “specify the percentage of time that the beneficiary spent 28 performing each activity.” (CAR 657.) USCIS also noted that the “description of the 1 beneficiary’s job duties [did] not reveal the specific tasks and percentage of time spent in 2 each specific task that the beneficiary carried out in the course of his daily duties/routine.” 3 (Id.) As a result, USCIS requested additional, specified information about Mr. Avisara’s 4 “U.S. position, duties, and tasks . . . at the time of filing.” (Id. at 657–58.) 5 Plaintiffs provided additional materials on or about May 3, 2019. (CAR 669–713.) 6 They included, as described by Plaintiffs, “a letter from Décor Team’s parent 7 company . . . describing Mr. Avisira’s job duties,” a business plan describing his job duties 8 and those of his subordinates, an organizational chart of Décor Team, and a letter from 9 Décor Team “further describing Mr. Avisira’s job duties and breaking them down into five 10 primary duties, 14 “secondary duties,” and 27 “tertiary duties.” (Doc. 41 at 13; Doc. 42 11 ¶¶ 6–9.) 12 In its July 30, 2019 decision letter, USCIS acknowledged the new materials, 13 including the “comprehensive list of [Mr. Avisira’s] job duties for the U.S. position.” (CAR 14 4.) Nonetheless, it found them to be insufficient. They “did not reveal the specific tasks 15 and the percentage of time spent in each specific task that the beneficiary carried out in the 16 course of his daily duties/routine.” (Id.) USCIS was accordingly “unable to determine how 17 much time the beneficiary is actually spending in a primarily executive or managerial 18 capacity, versus how much time the beneficiary is actually spending performing non- 19 qualifying duties for the petitioner; and how much time the beneficiary’s 20 subordinate/reports are spending performing those non-qualifying duties to relieve the 21 beneficiary.” (Id.) 22 It is “well settled that the applicant for a visa bears the burden of establishing 23 eligibility.” ElectroMedical Techs. Inc. v. Nielsen, No. CV-18-00508-PHX-GMS, 2019 24 WL 1643746, at *2 (D. Ariz. Apr. 16, 2019) (citation omitted). Further, a visa applicant 25 “cannot qualify for an L-1A visa simply because he performs managerial tasks; such tasks 26 must encompass his primary responsibilities.” Brazil Quality Stones, Inc. v. Chertoff, 531 27 F.3d 1063, 1070 (9th Cir. 2008) (emphasis in original). This requirement “excludes 28 workers whose job involves a mix of management and non-management responsibilities.” 1 A&T Fin. Servs., Inc. v. Rosenberg, No. SACV 14-780-JLS-RNBX, 2015 WL 10939900, 2 at *5 (C.D. Cal. Mar. 2, 2015) (citation omitted). 3 USCIS reasonably determined that Décor Team failed to establish that Mr. Avisira’s 4 job duties were primarily managerial or executive. For example, Plaintiffs’ supplemental 5 letter stated that “organizational oversight, development, and expansion” accounted for 6 approximately 24% of his duties. (CAR 676.) This category was divided into subcategories, 7 including “[p]lanning business objectives, developing organizational policies, and 8 establishing responsibilities and procedures for obtaining objectives in the United 9 States”—some of which were further broken down into specific tasks. (Id. at 676–77.) This 10 list of responsibilities is “conspicuously lacking in detail as to [Mr. Avisira’s] actual day- 11 to-day activities.” A&T Fin. Servs., Inc., 2015 WL 10939900, at *5 (citation and internal 12 citations omitted). The descriptions also did not specify which tasks are executive or 13 managerial in nature. See Kong Hong USA Inc. v. Chertoff, No. C-06-00804EDL, 2006 14 WL 3068876, at *3 (N.D. Cal. Oct. 27, 2006). Plaintiffs argue that “Defendants fail entirely 15 to say what of these duties would not be considered managerial or executive”—but that is 16 Plaintiffs’, rather than Defendants’, burden to establish. (Doc. 41 at 17); ElectroMedical 17 Techs. Inc., 2019 WL 1643746, at *2. Accordingly, USCIS reasonably determined that 18 Décor Team did not demonstrate that Mr. Avisira’s actual daily activities were managerial 19 or executive in nature. 20 2. Décor Team’s Staffing 21 Plaintiffs also argue that USCIS arbitrarily and capriciously relied on the company’s 22 staffing levels to determine whether Mr. Avisira qualified as a manager or executive. (Doc. 23 41 at 14–15.) The relevant regulation provides that, “[i]f staffing levels are used as a factor 24 in determining whether an individual is acting in a managerial or executive capacity, the 25 Attorney General shall take into account the reasonable needs of the organization, 26 component, or function in light of the overall purpose and stage of development of the 27 organization, component, or function.” 8 U.S.C. § 1101(a)(44)(C). Further, “[a]n 28 individual shall not be considered to be acting in a managerial or executive capacity . . . on 1 the basis of the number of employees that the individual supervises or has supervised or 2 directs or has directed.” Id. 3 Here, Plaintiffs state that a “plain reading of the law makes clear that one can be in 4 a managerial or executive position without relying on staffing levels whatsoever.” (Doc. 5 41 at 14.) They argue that USCIS impermissibly relied on “staffing, to the exclusion of 6 other evidence, to determine whether Mr. Avisira qualifies as a manager or executive.” (Id. 7 at 14–15.) The Court does not agree. It is true that USCIS considered information about 8 Décor Team’s staffing. But it indicated that it specifically “consider[ed] the nature of the 9 business and available staffing to relieve the beneficiary of the day-to-day tasks.” (CAR 10 4.) As USCIS stated, to demonstrate managerial and executive capacity, the petitioner must 11 prove “that the beneficiary primarily performs those specified responsibilities and does not 12 spend a majority of his or her time on day-to-day functions.” (CAR 3) (emphasis added). 13 USCIS analyzed Décor Team’s staffing in this context. For example, it noted that 14 although Décor Team’s initial organizational chart indicated that Ricardo Sanchez was its 15 Production and Warehouse Manager, its subsequent materials stated that Mr. Sanchez was 16 a subcontractor, rather than an employee. (CAR 5.) Further, although Plaintiffs’ materials 17 referenced positions including an Office and Human Resource Manager, Online and Social 18 Media Marketing, and Online Sales and Marketing, the supplemental materials “d[id] not 19 indicate who those actual employees are and if those employees work full-time or part- 20 time.” (Id.) Ultimately, USCIS found that Décor Team did not provide “sufficient evidence 21 to verify who actually worked for Décor Team and could relief Mr. Avisira of primarily 22 performing non-qualifying duties and tasks.” (CAR 6.) 23 The Court finds, like others before it, that USCIS properly considered Décor Team’s 24 staffing as one factor in determining whether Mr. Avisira performed primarily managerial 25 or executive duties. For example, in Family Inc. v. U.S. Citizenship & Immigration Servs., 26 469 F.3d 1313 (9th Cir. 2006), the Ninth Circuit Court of Appeals noted that the petitioner 27 was “correct to the extent that he argues [the company’s] small size, standing alone, cannot 28 justify the USCIS’ finding that he is not operating in a managerial capacity.” Id. at 1315– 1 16. That argument was “precluded by the plain language of the agency’s denial of the 2 petition,” however. Id. at 1316. USCIS found, in light of the applicant’s staffing levels, that 3 the beneficiary “was likely to be involved with performing ordinary operational activities 4 rather than engaging primarily in managerial duties.” The agency did “not err by 5 considering [the company’s] size as one factor in its determination,” as USCIS “may 6 properly consider an organization’s small size as one factor in assessing whether its 7 operations are substantial enough to support a manager.” Id. See also Brazil Quality Stones, 8 Inc., 531 F.3d at 1070 (“[A]n organization’s small size, standing alone, cannot support a 9 finding that its employee is not acting in a managerial capacity, but size is nevertheless a 10 relevant factor in assessing whether [an organization’s] operations are substantial enough 11 to support a manager.”) (citation and internal quotations omitted). 12 Similarly, here, Décor Team’s staffing was just one factor used to determine Mr. 13 Avisira’s role at the company. USCIS also considered information about Mr. Avisira’s job 14 duties, the nature of the company, and Décor Team employees’ roles (rather than simply 15 their quantity), in reaching its determination. (CAR 4–5.) USCIS therefore did not 16 impermissibly determine Mr. Avisira’s eligibility “merely on the basis of the number of 17 employees that the individual supervises or has supervised or directs or has directed.” 8 18 U.S.C. § 1101(a)(44)(C). 19 Because this was a permissible reason to deny Plaintiffs’ I-140 petition, the Court 20 need not reach the other bases for the denial. See Tucson Herpetological Soc. v. Salazar, 21 566 F.3d 870, 880 (9th Cir. 2009) (“We will . . . sustain an agency decision resting on 22 several independent grounds if any of those grounds validly supports the result, unless there 23 is reason to believe the combined force of these otherwise independent grounds influenced 24 the outcome.”) (citing Carnegie Natural Gas Co. v. FERC, 968 F.2d 1291, 1294 (D.C. Cir. 25 1992)). Nonetheless, the Court next turns to these arguments. 26 C. Overseas Position 27 USCIS also denied Plaintiffs’ I-140 petition on grounds that Décor Team failed to 28 establish that Mr. Avisira’s prior position abroad qualified as a managerial or executive 1 role. (CAR 6.) A petition for a multinational executive or manager must be accompanied 2 by a statement from an authorized official of the United States employer demonstrating: 3 If the alien is already in the United States working for the same 4 employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, 5 in the three years preceding entry as a nonimmigrant, the alien 6 was employed by the entity abroad for at least one year in a managerial or executive capacity; . . . 7 8 8 C.F.R. § 204.5(j)(3)(i)(B).5 The same definitions for “managerial” or “executive” 9 capacity as discussed above apply in this context, as well. See 8 C.F.R. § 204.5(j)(2). 10 Plaintiffs assert that, prior to entering the United States in 2013, Mr. Avisira served in 11 executive positions at Décor Team’s foreign parent company, Deco Team, in Israel. (Doc. 12 41 at 17.) He served as Deco Team’s Acting Vice President from 2008 to 2010,6 and as 13 Vice President from 2010 to 2013. He also served as the President of one of Deco Team’s 14 other subsidiaries, Deco Home, from 2010 to 2013. (CAR 684-687; Doc. 42 ¶ 9.) 15 USCIS concluded that the evidence did not show that Mr. Avisira was employed in 16 a managerial or executive capacity abroad for at least one year. Similarly to the domestic 17 position, USCIS initially noted that Plaintiffs submitted a letter providing the breakdown 18 of Mr. Avisira’s job duties at Deco Team in Israel, but the descriptions were “given in 19 broad and ambiguous terms and d[id] not specify the specific percentage of time that the 20 beneficiary spent performing each specific duty.” (CAR 656.) Plaintiffs also did not 21 provide details on his specific daily tasks and the percentage of time spent on them, which 22 rendered USCIS “unable to determine how much time the beneficiary was actually 23 spending in a primarily executive or managerial capacity.” (Id.) USCIS also noted that 24 Plaintiffs did not provide adequate information about Mr. Avisira’s subordinates, including 25 their “job duties, educational levels, salaries, whether work was full-time or part-time, 26 5 8 C.F.R. § 204.5(j)(3)(i)(A) also contains requirements for beneficiaries physically 27 located in the United States, which are not applicable here. 6 Plaintiffs’ Response to Request for Evidence (CAR 684–690) also states that Mr. Avisira 28 served as Vice President of Deco Team from 2005 to 2008, but Plaintiffs’ motion for summary judgment does not indicate as much. (Doc. 41 at 17.) 1 whether those subordinates were direct or indirect reports, and if those subordinates 2 supervised other subordinates” in connection with the foreign position. (Id.) USCIS 3 requested specified additional evidence to address these issues. (CAR 656–57.) 4 Plaintiffs submitted additional information, including “an organizational chart from 5 the time Mr. Avisira was employed with Deco Team, pay stubs for Mr. Avisira at that time, 6 a current organizational chart, and a letter from Deco Team laying out Mr. Avisira’s history 7 with the company and providing breakdown of his job duties, again, with a breakdown in 8 percentages of the time spent in each major task.” (Doc. 41 at 17; CAR 684–95.) USCIS 9 ultimately found this information to be insufficient. As above, USCIS found that Mr. 10 Avisira’s “comprehensive” list of job duties “was not broken down with the specific 11 percentage of time the beneficiary spent performing each specific duty,” and it therefore 12 was “unable to determine how much time the beneficiary was actually spending in a 13 primarily managerial or executive capacity.” (CAR 7.) Further, Plaintiffs did not provide 14 adequate information about Deco Team’s employees to confirm that the “beneficiary 15 should be free of interference of performing non-qualifying duties and tasks necessary to 16 produce a product or to provide services.” (CAR 8.) 17 Upon review of the materials submitted by Plaintiffs, and for similar reasons as 18 above, the Court finds that USCIS dd not err in concluding that Décor Team failed to 19 establish that Mr. Avisira was employed in a managerial or executive capacity abroad for 20 at least one year. For this independent reason, denial of the I-140 petition was proper. See 21 Dezire Trip Private Ltd. v. Kelly, No. C16-1854JLR, 2017 WL 3085751, at *6 (W.D. 22 Wash. July 20, 2017) (granting defendants’ motion for summary judgment where 23 “USCIS’s conclusion that [the company] did not establish that [the beneficiary] was 24 employed for at least one year in a managerial or executive capacity abroad was not 25 arbitrary or capricious”). 26 D. Ability to Pay 27 Lastly, USCIS denied the I-140 petition because Décor Team failed to demonstrate 28 its ability to pay the annual proffered wage, $84,000, for the position offered to Mr. Avisira. 1 An I-140 petition must be accompanied by evidence of the company’s ability to pay the 2 proffered wage “at the time the priority date is established and continuing until the 3 beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in 4 the form of copies of annual reports, federal tax returns, or audited financial statements.” 5 8 C.F.R. § 204.5(g)(2). Further, in “appropriate cases, additional evidence, such as 6 profit/loss statements, bank account records, or personnel records, may be submitted by the 7 petitioner or requested by the Service.” Id. 8 USCIS found that Plaintiffs’ initial materials were insufficient because the net 9 income shown on Décor Team’s 2017 federal tax return was negative $37,359.00, and the 10 current net assets were negative $16,187.00. (CAR 654.) For this and other reasons, USCIS 11 was “unable to determine how [Décor Team] has sufficient funds to pay all the employees 12 and the beneficiary.” (Id.) It requested evidence including complete copies of its 2017 and 13 2018 annual reports, audited financial statements, or tax returns. (Id.) Décor Team could 14 also submit “additional evidence” demonstrating that it had paid Mr. Avisira the proffered 15 wage, but it “could not submit additional evidence in place of initial evidence unless [it] 16 demonstrate[d] that initial evidence does not exist or [it] cannot obtain it.” (CAR 655.) 17 In response, Décor Team submitted its “bank statements, Financial Statement (for 18 the month ending March 31, 2019), 2018 Federal Tax Return and Form 941 Federal 19 Quarterly Tax Report.” (CAR 8.) USCIS found this material to be insufficient because, 20 first, bank statements are not among the types of permissible evidence pursuant to 8 21 C.F.R. § 204.5(g)(2). Further, although the relevant regulation permits additional evidence 22 “in appropriate cases,” Plaintiffs did not demonstrate that the “required evidence [was] 23 inapplicable, inaccurate, or unavailable.” (CAR 8-9.) In addition, USCIS found that no 24 evidence was submitted to demonstrate that the funds on petitioner’s bank statements 25 “somehow reflect additional available funds that were not reflected on its tax returns.” 26 (CAR 9.) The Court finds that these were reasonable conclusions, as the employer bears 27 the burden to “show that it has the ability to pay the proffered wage.” Estrada-Hernandez 28 v. Holder, 108 F. Supp. 3d 936, 940 (S.D. Cal. 2015). See also Rizvi v. Dep’t of Homeland 1 Sec. ex rel. Johnson, 627 F. App’x 292, 294 (5th Cir. 2015) (finding that USCIS’s refusal 2 to consider company’s tax returns was not arbitrary or capricious because “the bank 3 statements do not make up for the shortfalls because they are mere snapshots of cash 4 available on a given date rather than a depiction of ongoing assets”). 5 Plaintiffs also argue that USCIS disregarded the fact that the bank statements 6 demonstrated renumeration to Mr. Avisira. (Doc. 41 at 21.) Décor Team indicated, in a 7 supplemental letter to USCIS, that it: 8 provides Mr. Avisira a monetary salary of $4,000 per month. 9 Additionally, Décor Team spends $1,224.71 per month on an auto lease, $171.58 per month on auto insurance, and 10 $1,605.77 per month on the mortgage (Amerihome) for Mr. 11 Avisira’s home in the United States. Therefore, in addition to his salary, Décor Team is remunerating Mr. Avisira with an 12 annual $3,002.06 per month. Yearly this amounts to 13 $36,025.72. In conjunction with the $48,000 annual salary, Mr. Avisira’s annual compensation amounts to $84,024.72. 14 15 (CAR 712.) Plaintiffs’ motion indicates that the bank statements “evidence additional 16 monthly remuneration Mr. Avisira receives of $3,002.06, or $36,025.72 per year.” (Doc. 17 41 at 21.) Nonetheless, upon the Court’s independent review, the bank statements do not 18 indicate any payments of $3,002.06, nor do they show that any payments were made to Mr. 19 Avisira.7 20 USCIS also found that the other provided evidence did not indicate an ability to pay 21 Mr. Avisira’s proffered wage. For example, the net income on Décor Team’s 2018 federal 22 tax return was $7,707, and net assets were $0. (CAR 9.) USCIS also indicated that “it was 23 unclear how much the petitioner is actually paying the beneficiary and how much the other 24 employees are being compensated.” (Id.) Upon review, the Court agrees that this was a 25 reasonable conclusion compelled by the records. 26 Plaintiffs also invoke In re Matter of Sonegawa, 12 I. & N. Dec. 612 (BIA 1967), 27 7 To the extent that the bank statements reflect a combination of payments made to Mr. Avisira under a “Payroll” description or otherwise, Plaintiffs did not meet their burden to 28 demonstrate as much to USCIS or to the Court. Estrada-Hernandez, 108 F. Supp. 3d at 940. 1 in which the Board of Immigration Appeals determined that even if an employer cannot 2 establish the ability to pay a proffered wage at all times, it can still establish a sufficiently 3 reasonable expectation of future profits based on a “totality of the circumstances.” Id. 4 Plaintiffs assert that USCIS erred because it “did not conduct anything resembling a totality 5 of the circumstances inquiry based on the record evidence before it.” (Doc. 41 at 22.) 6 Sonegawa is applicable “only if the failure of [the company] to pay the proffered wage was 7 an anomaly amongst profitable years.” Taiyang Foods Inc. v. U.S. Citizenship & 8 Immigration Servs., 444 F. App’x 115 (9th Cir. 2011). Plaintiffs make no such argument. 9 Further, in this case, USCIS requested specific supplemental materials demonstrating an 10 ability to pay, which Décor Team did not provide. (CAR 654.) And “[t]he fact that USCIS 11 declined to make [a Sonegawa] exception . . . does not evidence an abuse of the agency’s 12 discretion.” Estrada-Hernandez, 108 F. Supp. 3d at 946 (citation omitted).8 13 * * * 14 For all of these reasons, Plaintiffs have not demonstrated that any of USCIS’s 15 independently sufficient reasons for denying their I-140 petition were arbitrary or 16 capricious. In addition to their claims under the APA, Plaintiffs also assert a claim for ultra 17 vires agency action, asserting that the denial of Plaintiffs’ I-140 petition was “in violation 18 of Defendants’ statutory duty to administer the INA and relevant regulations.” (Doc. 1 19 ¶ 95.) As described herein, the Court finds that Defendants fully complied with the INA 20 and relevant regulations. Summary judgment is appropriate on this claim, as well. 21 Defendants, accordingly, are entitled to summary judgment on all of Plaintiffs’ claims. 22 IV. CONCLUSION 23 Accordingly, 24 IT IS ORDERED denying Plaintiffs’ Motion and Memorandum In Support of 25 Motion for Summary Judgment. (Doc. 41.) 26 8 Plaintiffs also make much of the meaning of the word “remuneration” in 8 27 C.F.R. § 204.5(h)(3)(ix), to the extent that it “does not mean solely and exclusively cash payments.” (Doc. 41 at 23.) Given that Plaintiffs have not demonstrated that Décor Team 28 had the ability to pay the proffered wage in any form, however, this distinction is not persuasive. 1 IT IS FURTHER ORDERED granting Defendant’s Cross-Motion for Summary 2|| Judgment (part of Doc. 43). 3 IT IS FINALLY ORDERED that the Clerk of Court shall enter judgment in favor 4|| of Defendants and against Plaintiffs. The Clerk of Court shall close this case. 5 Dated this 19th day of February, 2021. 6 ’ Wichal T. dh urgl 8 Michael T. Liburdi 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18-