Vuegen Technologies Inc v. Cissna ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
ITSERVE ALLIANCE, INC., et al., )
)
Plaintiffs, )
)
v. )
) Civil Action No. 18-2350 (RMC)
L. FRANCIS CISSNA, Director, )
United States Citizenship and )
Immigration Services, )
)
Defendant. )
_________________________________ )
OPINION
By tradition and law, the United States has welcomed foreign workers with
specialized training to work temporarily in this country as needed by U.S. employers. The
workers in specialty occupations do not come as immigrants; they are given visas for three years
to work here. Because non-immigrant H-1B visas are intentionally for a short term, the
Immigration and Naturalization Service (INS), in accord with the law, simplified and streamlined
the application and approval process in a way inapplicable to immigrants. These H-1B visas
have allowed the growth of a business model whereby U.S. employers obtain H-1B visas for
foreign workers who are trained in information technology (IT) and provide such persons as
temporary workers to other U.S. companies that need IT assistance for a period.
In 2003, Congress established the Citizenship and Immigration Service (CIS) and
transferred visa authority to it.1 CIS has recently withdrawn INS guidance memos and adopted
1
Under the Homeland Security Act of 2002, the Immigration and Naturalization Service (INS)
was abolished. See Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (2002). Decisions on
nonimmigrant petitions, including H-1B petitions, were transferred from the Commissioner of
INS (and the Attorney General) to the Secretary of the Department of Homeland Security and
1
its own guidance, which has caused the H-1B approval process to slow dramatically and resulted
in a high level of rejected visa petitions from employers in the IT industry but not others.
Approximately thirty-three cases have been filed in this District challenging the
handling of H-1B visa applications by CIS, a constituent agency of the Department of Homeland
Security (DHS). Although not “related” within the meaning of Local Civil Rule 40.5(a)(3), the
cases have been consolidated before this Court with the agreement of the assigned Judges for
briefing on three legal issues under Local Civil Rule 40.5(e):
1. the authority of CIS to grant visas for less than the requested three-year period;
2. the authority of CIS to deny visas to companies that place employees at third-party
locations either because the third party is determined to be the employer or because
specific and detailed job duties are not provided with the visa application; and
3. the related statute of limitations issues raised by the government.
See 3/6/2019 Minute Order Referring Case for Limited Purpose (Consolidation Order), ERP
Analysts v. Cissna, No. 19-cv-300. Question 2 concerns the employer-employee relationship, the
availability of work for a temporary foreign worker, and the foreign worker’s maintenance of
status. Plaintiffs allege that CIS is applying new versions of these requirements, without
engaging in rulemaking, to H-1B applicants that are IT consulting firms and not to other U.S.
employers.
subdelegated to the Director of CIS. See 8 U.S.C. § 1103(a)(1) (“The Secretary of Homeland
Security shall be charged with the administration and enforcement of this chapter and all other
laws relating to the immigration and naturalization of aliens.”); 8 U.S.C. § 1184(c)(1) (“The
question of importing any alien as a nonimmigrant under subparagraph (H) . . . of section
1101(a)(15) of this title . . . in any specific case or specific cases shall be determined by the
Attorney General, after consultation with appropriate agencies of the Government, upon petition
of the importing employer.”); 8 C.F.R. § 2.1 (permitting the Secretary of DHS to delegate
authority “to administer and enforce the immigration laws”); DHS’s Delegation to the Bureau of
Citizenship and Immigration Services, Delegation No. 0150.1 § 2(W) (June 5, 2003),
https://www.hsdl.org/?abstract&did=234775 (delegating “[a]uthority under the immigration laws
. . . to accept and adjudicate nonimmigrant and immigrant visa petitions”).
2
The Court finds, as discussed below, that:
1. The 1991 Regulation was adopted by INS through notice-and-comment rulemaking and
the statute of limitations ran out long before this case was filed. It is subject only to an
as-applied challenge.
2. CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to
as the Neufeld Memo, from which comes a new employer-employee relationship set of
requirements. It is timely challenged on an as-applied basis but not as a facial challenge.
3. CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can
be challenged either facially or as applied.
4. The current CIS interpretation of the employer-employee relationship requirement is
inconsistent with its regulation, was announced and applied without rulemaking, and
cannot be enforced.
5. The CIS requirements that employers (1) provide proof of non-speculative work
assignments (2) for the duration of the visa period is not supported by the statute or
regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These
requirements were also announced and applied without rulemaking and cannot be
enforced.
6. CIS’s itinerary requirement was superseded by a later statute that permits employers to
place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.
7. CIS has the authority to grant visas for less than the requested three-year period but must
provide its reasoning behind any denials, in whole or in part.
Both Plaintiffs’ and Defendant’s motions for summary judgment will be granted
in part and denied in part.2
I. BACKGROUND
The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., specifically
allows U.S. employers to apply for visas for foreign workers to come to the United States to
2
The subset of cases that are assigned to Judge Rosemary M. Collyer will be remanded to CIS
for reconsideration consistent with this Opinion and the Court will order that such
reconsideration shall be completed in no more than 60 days. This Opinion and accompanying
Order will be filed on the dockets of all the cases assigned to other judges and consolidated for a
limited purpose. The parties in those cases will be ordered to file a joint status report regarding
the effect of this decision on their specific case no later than two weeks after the issuance of this
Opinion.
3
work permanently (immigrants) or to come to the United States for temporary employment
(nonimmigrants). The differences are material in that the former are applying to remain in the
United States and the latter are planning to work here on a temporary basis. This distinction has
existed since November 1990, when Congress adopted the Immigration Act of 1990, which
changed the INA’s employment-based visa categories. See Pub. L. No. 101-649, 104 Stat. 4978(1990). As a result, an employer seeking an employment-based immigrant visa in order to hire a
foreign worker who plans to stay in this country has been required to submit much more
information and undergo greater examination than that required for temporary nonimmigrant
visas.
Critical to understanding the facts is a change in immigration-based enforcement
adopted in 2003 when it was moved from INS to CIS. CIS initially adopted and followed pre-
existing and long-standing INS guidance memos and regulations. It has recently superseded the
INS guidance with its own guidance memos but issued no regulations. CIS defends its guidance
and practices as consistent with the law and regulations.
It is useful to know that the Plaintiffs here are all petitioning employers that seek
H-1B visas for foreign workers who have expertise in the IT industry. Most Plaintiffs are
consulting firms that may place a visa holder with multiple clients over the course of a three-year
visa.
A. H-1B Visas
H-1B3 visas are nonimmigrant visas for temporary workers coming to the United
States to work in a specialty occupation. The law admits, temporarily and as nonimmigrants, “an
3
Although commonly referred to as an “H-1B Visa,” the statutory cite is to 8 U.S.C.
§ 1101(a)(15)(H)(i)(b).
4
alien . . . who is coming temporarily to the United States to perform services . . . in a specialty
occupation described in section 1184(i)(1) of this title . . . , who meets the requirements for the
occupation specified in section 1184(i)(2) of this title.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). For
these purposes, a specialty occupation requires a “theoretical and practical application of a body
of highly specialized knowledge, and [the] attainment of a bachelor’s or higher degree in the
specific specialty (or its equivalent) as a minimum for entry into the occupation in the United
States,” 8 U.S.C. § 1184(i)(1)(A)-(B); see also Royal Siam Corp. v. Chertoff, 484 F.3d 139, 144
(1st Cir. 2007) (“Congress has laid out eligibility standards for the granting of H-1B specialty
occupation visas.”) (citing 8 U.S.C. § 1101(a)(15)(H)(i)(b)).
The first step when petitioning for an H-1B visa is for the U.S. employer to file a
Labor Condition Application with the Department of Labor (DOL). In that application, the
employer must attest that certain wages and working conditions for foreign workers will be
similar to domestic employees. An employer petitioning for an H-1B visa to admit a
nonimmigrant worker does not need to test the local employment market and first hire any
qualified, willing, and able U.S. worker. Nor does the 1990 Act require the employer to provide
documentary evidence in support of the Labor Condition Application when submitting it to DOL
for approval. Rather, U.S. employers are required to “attest” to five labor conditions concerning
pay rates, working conditions, labor peace, notice to employees and DOL, and agreement with
DOL enforcement, specifically:
1. [The U.S. employer] will pay the alien(s) and other individuals
employed in the occupational classification at the place of
employment prevailing wages or actual wages whichever are
greater;
2. it will provide working conditions that will not adversely affect the
working conditions of U.S. workers similarly employed;
3. there is no strike or lockout in the course of a labor dispute in the
occupational classification at the place of employment;
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4. it has publicly notified the bargaining representative of its
employees in the occupational classification at the place of
employment of its intent to employ an H-1B alien worker(s), or, if
there is no bargaining representative, that it has posted such notice
at the place of employment; and
5. the employer must provide the information required in the
application about the number of aliens sought, occupational
classification, job duties, wage rate and conditions under which the
aliens will be employed, date of need, and period of employment.
Interim Final Rule, 56 Fed. Reg. 54720, 54720-21 (October 27, 1991); see also 20 C.F.R. §§
655.731-655.735. The information required in a Labor Condition Application was also included
in the statute. See 8 U.S.C. § 1182(n)(1)(A)(i)(I) and (II), (n)(1)(B), (n)(1)(C), and (n)(1)(D).
The Interim Final Rule quoted above was published by DOL in 1991 to provide a
regulatory process to handle Labor Condition Applications authorized by Congress in 1990. See
Interim Final Rule, 56 Fed. Reg. 54720. DOL recognized that the H-1B visa is temporary and
that lengthy preapproval inquiries would consume this time. Id. at 54721 (“The Department
believes that Congress . . . intended to provide greater protection than under prior law for U.S.
and foreign workers without interfering with an employer’s ability to obtain the H-1B workers it
needs on a timely basis. Accordingly, the Department is providing that a labor condition
application be accepted if it is complete, . . . thereby minimizing the time it takes to obtain
approval of H-1B workers.”). As a result, and directly in accord with the 1990 Act, DOL’s
regulations enforce the terms of Labor Condition Applications (wages, working conditions, etc.)
in a post-facto complaint-driven system rather than by prior examination. See 8 U.S.C.
§ 1182(n)(2)(A) (requiring DOL to “establish a process for the receipt, investigation and
disposition of complaints respecting a petitioner’s failure to meet a condition specified in an
application . . . or a petitioner’s misrepresentation of material facts in such an application” filed
by any aggrieved person or bargaining representative within 12 months of the failure or
6
misrepresentation). The DOL enforcement process was adopted in elaborate detail by Congress
and placed in the statute. See 8 U.S.C. § 1182(n)(2)(C); 20 C.F.R. § 655.800.
After an employer receives a certificate from DOL, it may apply for an H-1B visa,
now with CIS, by submitting Form I-129 and supplemental documentation. 8 C.F.R.
§ 214.2(h)(2)(i)(A) (“A United States employer seeking to classify an alien as an H-1B . . .
temporary employee must file a petition on Form I-129, Petition for Nonimmigrant Worker, as
provided in the form instructions.”). Form I-129 requires information about the foreign worker,
as well as the employer who files the Form, requires disclosure if the foreign worker is going to
work at an off-site location, and asks if an itinerary is provided for the duration of the visa. See
Form I-129, https://www.uscis.gov/i-129 (Feb. 5. 2020). A “Checklist of Required Initial
Evidence for Form I-129” posted on the CIS website identifies such information as:
Evidence showing the proposed employment qualifies as a specialty
occupation
Evidence showing the beneficiary is qualified to perform the
specialty occupation
...
A copy of any written contract between the employer and the
beneficiary or a summary of the terms of the oral agreement under
which the beneficiary will be employed
An itinerary showing the date and places of assignment if the
petition indicates that the beneficiary will be providing services at
more than one location
A corresponding Labor Condition Application (LCA) that has been
certified by the Department of Labor (DOL) and signed by the
petitioner and attorney/representative, if applicable
Checklist of Required Initial Evidence for Form I-129, H-1B Specialty Occupation Worker,
https://www.uscis.gov/i-129Checklist (Oct. 9, 2018).
7
The INS 1991 Regulation regarding nonimmigrants has not been rescinded or
modified by CIS. It specifies that the petition for an H-1B visa “must include an itinerary with
the dates and locations of the services or training and must be filed with USCIS as provided in
the form instructions” whenever service or training will occur in more than one location. 8
C.F.R. § 214.2(h)(2)(i)(B). CIS evaluates the visa petition and additional documental submitted
and approves or denies each visa independently. See id. § 214.2(h)(9)(i) (“USCIS will consider
all the evidence submitted and any other evidence independently required to assist in
adjudication.”). “An approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for
an alien in a specialty occupation shall be valid for a period of up to three years but may not
exceed the validity period of the labor condition application.” Id. § 214.2(h)(9)(iii)(A)(1).
B. INS and CIS Memoranda
1. Three INS 1995 Guidance Memos
INS issued a series of “guidance memos” in the mid-90s that addressed the nature
of the evidence required in an H-1B visa application. The first INS guidance memorandum was
issued on June 6, 1995 and titled “Contracts Involving H-1B Petitioners.” American
Immigration Lawyers Association, INS on Contracts Involving H-1B Petitions (June 6, 1995),
https://www.aila.org/infonet/ins-contracts-involving-h-1b-petitions. The INS June 1995 Memo
permitted H-1B visa adjudicators to “request and consider any additional information deemed
appropriate to adjudicate a petition,” including specifically third-party contracts, on a case-by-
case basis. Id.
On November 11, 1995, INS issued a second guidance memorandum regarding
contract information, with the title “Supporting Documentation for H-1B Petitions.” American
Immigration Lawyers Association, INS on Supporting Documentation for H-1B Petitions (Nov.
13, 1995), https://www.aila.org/infonet/ins-supporting-documentation-for-h-1b-petitions. This
8
Memo clarified that it “should not be a normal requirement” for applicants to submit third-party
contracts. Id. Rather, the INS November 1995 Memo instructed that contracts should be
requested “only in those cases where the officer can articulate a specific need for such
documentation. The mere fact that a petitioner is an employment contractor is not a reason to
request such contracts.” Id.
Finally, on December 29, 1995, INS issued a third guidance memorandum
regarding H-1B visa applications, titled “Interpretation Of The Term ‘Itinerary’ Found in 8 CFR
214.2(h)(2)(i)(B) As It Relates To The H-1B Nonimmigrant Classification.” American
Immigration Lawyers Association, Interpretation of Itinerary in H-1B Visas (Dec. 29, 1995),
https://www.aila.org/infonet/ins-interpretation-of-itinerary-in-h-1b-petitions. The INS December
1995 Memo first explained that the purpose of the itinerary requirement “is to insure [sic] that
alien beneficiaries accorded H status have an actual job offer and are not coming to the United
States for speculative employment.” Id. The INS December 1995 Memo also stated that “in the
case of an H-1B petition filed by an employment contractor, a general statement of the alien’s
proposed or possible employment is applicable since the regulation does not require that the
employer provide . . . the exact dates and places of employment.” Id. (emphasis in original).
Finally, the INS December 1995 memo cautioned employment contractor applicants that DOL
requires employers to “pay the alien the appropriate wage even during periods of time when the
alien is on travel or between assignments.” Id. CIS initially followed all of these INS 1995
Memos.
2. CIS 2010 Guidance Memo (Origin of Contested Employer-Employee
Analysis)
In 2010, CIS issued its own guidance memorandum that set out eleven (11)
factors to be considered in determining “whether a valid employer-employee relationship exists”
9
between the U.S. employer and the foreign worker. CIS MSJ, Ex. 2, Mem. from Donald Neufeld
(Jan. 8, 2010) (CIS 2010 Guidance Memo) [Dkt 15-2] at 3. It was titled “Determining
Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site
Placements.” Id. at 1. The CIS 2010 Guidance Memo identified the following factors to
consider when evaluating an employer-employee relationship:
(1) Does the petitioner supervise the beneficiary and is such
supervision off-site or on-site?
(2) If the supervision is off-site, how does the petitioner maintain
such supervision, i.e. weekly calls, reporting back to main office
routinely, or site visits by the petitioner?
(3) Does the petitioner have the right to control the work of the
beneficiary on a day-to-day basis if such control is required?
(4) Does the petitioner provide the tools or instrumentalities needed
for the beneficiary to perform the duties of employment?
(5) Does the petitioner hire, pay, and have the ability to fire the
beneficiary?
(6) Does the petitioner evaluate the work-product of the beneficiary,
i.e. progress/performance reviews?
(7) Does the petitioner claim the beneficiary for tax purposes?
(8) Does the petitioner provide the beneficiary any type of employee
benefits?
(9) Does the beneficiary use proprietary information of the
petitioner in order to perform the duties of employment?
(10) Does the beneficiary produce an end-product that is directly
linked to the petitioner’s line of business?
(11) Does the petitioner have the ability to control the manner and
means in which the work product of the beneficiary is
accomplished?
Id. at 3-4. CIS adjudicators were instructed to evaluate these factors using a totality-of-the-
circumstances test and to determine if the petitioning employer had established its “right to
control” the foreign worker’s employment. Id. at 4. The CIS 2010 Guidance Memo also
indicated that documents used to demonstrate an employer-employee relationship could include
10
itineraries, one or more employment agreements, an offer letter, contracts between a U.S. client
and U.S. petitioning employer that explain the role of the foreign worker with the client,
statements of work, position descriptions, etc. Id. at 8-9.
The CIS 2010 Guidance Memo also stated that petitioning employers were
required to provide itineraries when a foreign worker would be placed at more than one location.
Judge Gladys Kessler of this Court decided that the CIS 2010 Guidance Memo constituted only
guidance, which left discretion with the adjudicators; thus, it was not required to undergo notice-
and-comment rulemaking. See Broadgate Inc. v. USCIS, 730 F. Supp. 2d 240 (D.D.C. 2010).
No appeal was filed.
3. CIS 2018 Policy Memorandum (PM-602-0157)
In 2018, CIS issued a Policy Memorandum that “establishe[d] USCIS policy
relating to H-1B petitions filed for workers who will be engaged at one or more third-party
worksites.” CIS MSJ, Ex. 3, 2018 Policy Memorandum (CIS 2018 Policy Memo) [Dkt. 15-3] at
1. It was titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party
Worksites.” Id. (emphasis added). According to CIS, the CIS 2018 Policy Memo “addresse[d]
the itinerary requirement . . . and the types of evidence an employer typically submits to meet its
statutory burden of demonstrating a specialty occupation in the context of placing workers at a
third-party worksite.” CIS MSJ at 14 (emphasis added).
The CIS 2018 Policy Memo replaced the three INS 1995 Memos that had not
required petitioning employers to submit contracts or itineraries with exact dates and locations of
employment. See CIS 2018 Policy Memo at 1-2.4 It also reaffirmed the CIS 2010 Guidance
4
The INS June and November 1995 Memos were superseded to the extent contrary to the CIS
2018 Policy Memo but the INS December 1995 Memo was “rescind[ed] . . . and [the CIS 2018
Policy Memo] supersede[d] any guidance from that memo.” CIS 2018 Policy Memo at ⁋ 3.
11
Memo and stated that the new policy was complementing those requirements. Id. at 2 (“This
P[olicy] M[emo] is intended to be read together with the [CIS 2010 Guidance] Memo and as a
complement to that policy.”).
Critically for present purposes, the CIS 2018 Policy Memo specifically targeted
employer petitions that involve third-party worksites and required all such U.S. employer
petitioners to establish “by a preponderance of the evidence” that:
The beneficiary [(foreign worker)] will be employed in a specialty
occupation. This means that the petitioner has specific and non-
speculative qualifying assignments in a specialty occupation for the
beneficiary for the entire time requested in the petition; and
The employer will maintain an employer-employee relationship with
the beneficiary for the duration of the requested validity period.
Id. at 3 (emphases added). CIS stressed that “H-1B petitions do not establish a worker’s
eligibility for H-1B classification if they are based on speculative employment or do not establish
the actual work.” Id. at 4. Therefore, “uncorroborated statements describing the role” of the
foreign worker at a third-party worksite “are often insufficient.” Id. The 2018 Policy Memo
emphasized the requirement for corroborating “contracts and work orders” by warning that it
may otherwise “deny the petition.” Id. In addition, the CIS 2018 Policy Memo declared that the
applicable regulation, initially adopted by the INS in 1991 and interpreted by the INS in its 1995
Guidance Memos, requires an itinerary of work sites (and non-speculative work in a specialty
occupation) for the duration of a visa for any visa petitions that involve foreign workers
performing services in more than one location. See id. at 6 (citing 8 C.F.R § 214.2(h)(2)(i)(B)).
Thus, while the INS 1995 Guidance Memos had authorized general statements
concerning the foreign worker’s role at a third-party site, and not a detailed itinerary unless
requested, the CIS 2018 Policy Memo emphasized “[t]here is no exemption from this regulatory
12
requirement.” Id. “An itinerary with the dates and locations of the services to be provided must
be included in all petitions that require services to be performed in more than one location . . . .
Adjudicators may deny the petition if the petitioner fails to provide an itinerary.” Id.
The requirement of an itinerary is fulsome. “The itinerary should detail when and
where the beneficiary will be performing services.” Id. “Although the regulations only require
that an itinerary contain the dates and locations of the services to be provided . . . at multiple
worksites, a more detailed itinerary can help to demonstrate that the petitioner has non-
speculative employment.” Id. “[I]t could help” CIS to determine “qualifying assignments,” i.e.,
specific and non-speculative jobs, if a petitioning employer “specifies”: the dates of each
service; the “names and addresses of the ultimate employer(s)”; names, addresses, and telephone
number at each work location; and “[c]orroborating evidence for all of the above.” Id.
A non-speculative and detailed itinerary that provides work information for the
entire duration of the requested visa is now critical because CIS “in its discretion, generally
limit[s] the approval period to the length of time demonstrated that the beneficiary will be placed
in non-speculative work and that the petitioner will maintain the requisite employer-employee
relationship.” Id. at 7. In other words, although the statute permits a three-year H-1B visa for
foreign workers in specialty occupations (with one possible three-year extension), CIS now
limits a visa’s duration to the length of time the petitioning U.S. employer can show that definite
work assignments exist.
CIS attempted to protect the CIS 2018 Policy Memo by limiting language:
This memorandum is intended solely for the training and guidance
of USCIS personnel in performing their duties relative to the
adjudication of applications and petitions. It is not intended to, does
not, and may not be relied upon to create any right or benefit,
substantive or procedural, enforceable at law or by any individual or
13
other party in removal proceedings, in litigation with the United
States, or in any other form or manner.
Id.
C. Contested H-1B criteria
Plaintiffs challenge CIS’s current interpretation and application of three different
criteria to receive an H-1B visa: the revised employer-employee relationship requirement, the
new non-speculative work requirement, and the newly-interpreted itinerary requirement. CIS
rejects the terms Plaintiffs use to identify these criteria and argues that its requirements have
always been present in the statute and regulation, which have not changed.
1. Employer-Employee Relationship Requirement
Only employers may apply for H-1B nonimmigrant visas. See 8 U.S.C.
§ 1101(a)(15)(H)(i)(b) (requiring the “intending employer” to file the petition); 8 C.F.R.
§ 214.2(h)(1)(i) (“Under section 101(a)(15)(H) of the Act, an alien may be authorized to come to
the United States temporarily to perform services or labor for, or to receive training from, an
employer, if petitioned for by that employer.”); id. § 214.2(h)(2)(i)(A) (“A United States
employer seeking to classify an alien as an H-1B . . . temporary employee must file a petition on
Form I-129, Petition for Nonimmigrant Worker, as provided in the form instructions.”). In 1991,
DOL engaged in formal rulemaking to define the nature of the “employer” who can apply for a
Labor Condition Application. DOL Advanced Notice of Proposed Rulemaking, Alien
Temporary Employment Labor Certification Process, 56 Fed. Reg. 11705-01 (March 20, 1991).
After notice and comment, DOL adopted a Final Rule that defined the “employer” as:
(1) A person, firm, corporation, contractor, or other association or
organization in the United States which suffers or permits a person
to work within the United States;
(2) Which has an employer-employee relationship with respect to
employees under this part, as indicated by the fact that it may hire,
14
pay, fire, supervise or otherwise control the work of any such
employee; and
(3) Which has an Internal Revenue Service tax identification
number.
Proposed Rule, Labor Condition Applications and Requirements for Employers Using Aliens on
H-1B Visas in Specialty Occupations, 56 Fed. Reg. 37175-01, 37182 (Aug. 5, 1991) (DOL
Proposed Rule) (emphasis added).5
INS adopted the definition of “employer” used by DOL, see INS Final Rule,
Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56
Fed. Reg. 61111, 61121 (Dec. 2, 1991); see also 8 C.F.R. § 214.2(h)(4)(ii), and CIS has made no
change to the definition. Neither the underlying statute nor the regulation has been amended in
relevant part since 1991.
The CIS 2018 Policy Memo instructs adjudicators to look for “[c]ontracts as
evidence to demonstrate the employer will maintain an employer-employee relationship”
throughout the visa duration. CIS 2018 Policy Memo at 5. CIS advises that “the chain of
contracts and/or legal agreements between the petitioner and the ultimate third-party worksite
may help USCIS to determine whether the requisite employer-employee relationship exists
and/or will exist.” Id.The CIS 2010 Guidance Memo plays a role here. Although framed as areas for
review, that Memo focused its analysis on the putative employer’s “right to control.” CIS 2010
5
DOL amended the definition for “employer” in 2000, 2004, and 2008 to acknowledge the role
of CIS and new types of H-visas, but neither INS nor CIS adopted DOL’s amendments. See,
e.g., Final Rule, Employment Standards Administration; Labor Condition Application
Requirements for Employers Seeking to Use Nonimmigrants on E-3 Visas in Specialty
Occupations; Filing Procedures, 73 Fed. Reg. 19944-01, 19948 (April 11, 2008); 20 C.F.R.
§ 655.715 (2009).
15
Guidance Memo at 3 (“In considering whether or not there is a valid ‘employer-employee
relationship’ for purposes of H-lB petition adjudication, USCIS must determine if the employer
has a sufficient level of control over the employee. The petitioner must be able to establish that
it has the right to control over when, where, and how the beneficiary performs the job.”). The
CIS 2010 Guidance Memo was expressly adopted by the CIS 2018 Policy Memo and carries its
emphasis on the “right to control” to the new interpretation of employer-employee relationship.
2. Non-Speculative Work Requirement
In recent H-1B visa denials, CIS has declared that “H-1B petitions do not
establish a worker’s eligibility for H-1B classification if they are based on speculative
employment or do not establish the actual work the H-1B beneficiary will perform at the third-
party worksite.” Pls.’ MSJ, App’x [Dkt. 14-2], Nov. 9, 2018 CIS Decision re ERP Analysts Inc.
at 13.6 The denials emphasize that a petitioning employer must show, at the time it petitions for
an H-1B visa, that it “ha[s] a specific work assignment in place” for each foreign worker and
must “demonstrate that [it] ha[s] specific and non-speculative qualifying assignments in a
specialty occupation for the beneficiary for the entire time requested on the petition.” Id. CIS
will no longer accept attestations to fulfill this requirement. Id.The CIS 2018 Policy Memo bases its new requirement that the petitioning
employer prove non-speculative work in a specialty occupation for the entirety of a visa on the
requirement that an H-1B visa holder must be employed in a specialty occupation. 7 See CIS
6
All page references to Plaintiffs’ Appendix to its Motion for Summary Judgment refer to the
electronic case filing (ECF) page number.
7
Congress defined specialty occupation as:
an occupation that requires—
16
2018 Policy Memo at 3 (“The beneficiary will be employed in a specialty occupation. This
means that the petitioner has specific and non-speculative qualifying assignments in a specialty
occupation for the beneficiary for the entire time requested in the petition.”).
(A) theoretical and practical application of a body of highly
specialized knowledge, and
(B) attainment of a bachelor’s or higher degree in the specific
specialty (or its equivalent) as a minimum for entry into the
occupation in the United States.
8 U.S.C. § 1184(i)(1). The 1991 Regulation also defines a specialty occupation as
an occupation which requires theoretical and practical application of
a body of highly specialized knowledge in fields of human endeavor
including, but not limited to, architecture, engineering, mathematics,
physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts, and
which requires the attainment of a bachelor’s degree or higher in a
specific specialty, or its equivalent, as a minimum for entry into the
occupation in the United States.
8 C.F.R. § 214.2(h)(4)(ii). And the 1991 Regulation further clarified that:
To qualify as a specialty occupation, the position must meet one of
the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally
the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel
positions among similar organizations or, in the alternative, an
employer may show that its particular position is so complex or
unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the
position; or
(4) The nature of the specific duties [is] so specialized and complex
that knowledge required to perform the duties is usually associated
with the attainment of a baccalaureate or higher degree.
Id. § 214.2(h)(4)(iii)(A).
17
3. Itinerary Requirement
INS originally issued the 1991 Regulation that requires an “itinerary” for
temporary foreign workers who work in multiple locations; it clarified in the December 1995
Memo that it “could accept a general statement of the alien’s proposed or possible employment,
since the regulation does not require that the employer provide the exact dates and places of
employment.” INS December 1995 Memo. CIS has rescinded the INS December 1995 Memo
and now requires an itinerary showing specific work and location for the entire duration of the
requested visa at the time of application. The itinerary requirement in the 1991 Regulation itself
remains as issued by INS:
A petition that requires services to be performed or training to be
received in more than one location must include an itinerary with
the dates and locations of the services or training and must be filed
with USCIS as provided in the form instructions. The address that
the petitioner specifies as its location on the Form I-129 shall be
where the petitioner is located for purposes of this paragraph.
Id. § 214.2(h)(2)(i)(B) (italics used to show where CIS replaced INS). What is new under the
CIS 2018 Policy Memo is the CIS requirement that jobs in specialty occupations are proven by
evidence submitted with the petition for the entire duration of the requested visa.
D. Procedural History
After experiencing what they believed to be improper denials, IT consulting
agencies filed approximately thirty-three separate lawsuits in this District Court challenging the
authority of CIS to deny petitions based on what Plaintiffs argue are improper interpretations and
applications of the employer-employee relationship, non-speculative work assignment, and
itinerary requirements. The Calendar Committee for the District Court consolidated the cases for
a single decision on three overarching legal questions as identified above. As this Court has the
first of the approximately thirty-three cases, the consolidated issues were briefed and argued
18
under case number 18-cv-2350, Itserve Alliance, Inc. v. United States Citizenship and
Immigration Services. The issues are ripe for review.8
II. LEGAL STANDARDS
A. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In a case involving review of a final agency
action under the Administrative Procedures Act, 5 U.S.C. § 706, however, the standard set forth
in Rule 56[ ] does not apply because of the limited role of a court in reviewing the administrative
record.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006) (internal citation
omitted), appeal dismissed, Nos. 06-5419 & 07-5004, 2007 WL 1125716 (D.C. Cir. Mar. 30,
2007); see also Charter Operators of Alaska v. Blank, 844 F. Supp. 2d 122, 126-27 (D.D.C.
2012); Buckingham v. Mabus, 772 F. Supp. 2d 295, 300 (D.D.C. 2011). The APA assigns to the
agency the resolution of factual issues and ability to make decisions and issue rules supported by
the administrative record, while “‘the function of the district court is to determine whether or not
as a matter of law the evidence in the administrative record permitted the agency to make the
decision it did.’” Sierra Club, 459 F. Supp. 2d at 90 (quoting Occidental Eng’g Co. v. INS, 753
F.2d 766, 769-70 (9th Cir. 1985)). “Summary judgment thus serves as the mechanism for
deciding, as a matter of law, whether the agency action is supported by the administrative record
8
See Mem. in Supp. of Pls.’ Consolidated Mot. for Summ. J. (Pls.’ MSJ) [Dkt. 14-1]; Gov’t’s
Opp’n to Pls.’ Consolidated Mot. for Summ. J. and Cross-Mot. (CIS MSJ) [Dkt. 15]; Pls.’
Consolidated Resp. to the Agency’s Cross-Mot. for Summ. J. and Reply in Supp. of Pls.’ Mot.
for Summ. J. (Pls.’ Opp’n) [Dkt. 17]; Gov’t’s Reply in Supp. of its Cross-Mot. [Dkt. 19].
19
and otherwise consistent with the APA standard of review.” Id. (citing Richards v. INS, 554
F.2d 1173, 1177 & n.28 (D.C. Cir. 1977)).
B. Administrative Procedure Act
The Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq., authorizes
federal courts to review federal agency actions and determine if they are arbitrary, capricious, or
not in accord with law. 5 U.S.C. § 706(2)(A); see also Tourus Records, Inc. v. DEA, 259 F.3d
731, 736 (D.C. Cir. 2001).
There are time-tested principles behind this review. First, “an agency’s power is
no greater than that delegated to it by Congress.” Lyng v. Payne, 476 U.S. 926, 937 (1986); see
also Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir.
1992). Second, agency actions beyond delegated authority are ultra vires and should be
invalidated. Transohio, 967 F.2d at 621. Third, courts look to an agency’s enabling statute and
subsequent legislation to determine whether the agency has acted within the bounds of its
authority. Univ. of D.C. Faculty Ass’n/NEA v. D.C. Fin. Responsibility & Mgmt. Assistance
Auth., 163 F.3d 616, 620-21 (D.C. Cir. 1998) (explaining that ultra vires claims require courts to
review the relevant statutory materials to determine whether “Congress intended the [agency] to
have the power that it exercised when it [acted]”).
When reviewing an agency’s interpretation of its enabling statute and the laws it
administers, courts are generally guided by “the principles of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 . . . (1984).” Mount Royal Joint Venture v.
Kempthorne, 477 F.3d 745, 754 (D.C. Cir. 2007). Chevron’s Step One requires a court to
determine “[i]f Congress has directly spoken to [an] issue, [if so,] that is the end of the matter.”
Confederated Tribes of Grand Ronde Cmty. v. Jewell, 830 F.3d 552, 558 (D.C. Cir. 2016)
(discussing Chevron, 467 U.S. at 842-43). When Congress’s intent is unambiguous, both the
20
agency and the Court must honor that intent. See Lubow v. Dep’t of State, 783 F.3d 877, 884
(D.C. Cir. 2015) (quoting Chevron, 467 U.S. at 842-43). Chevron Step Two comes into play
when the text is silent or ambiguous. If the text is silent or ambiguous, courts must “determine if
the agency’s interpretation is permissible, and if so, defer to it.” Confederated Tribes, 830 F.3d
at 558. A permissible interpretation need not be “the best interpretation, only a reasonable one.”
Van Hollen, Jr. v. FEC, 811 F.3d 486, 492 (D.C. Cir. 2016) (internal quotation marks omitted).
Even when an interpretation is reasonable under Chevron, “agency action is
always subject to arbitrary and capricious review under the APA.” Confederated Tribes, 830
F.3d at 559. An interpretation is arbitrary and capricious if the agency “relied on factors which
Congress has not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Agape Church, Inc. v. FCC, 738 F.3d 397, 410 (D.C. Cir. 2013) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). A
reviewing court must decide whether the agency action is “within the scope of [the agency’s]
lawful authority” and supported by “reasoned decisionmaking.” Tripoli Rocketry Ass’n v. ATF,
437 F.3d 75, 77 (D.C. Cir. 2006) (internal quotation marks omitted).
If an agency action results in a change of its position, the agency must “display
awareness” of the change, but the agency is not required to meet a “heightened standard for
reasonableness.” Mary V. Harris Found. v. FCC, 776 F.3d 21, 24 (D.C. Cir. 2015) (internal
quotation marks omitted). “So long as any change is reasonably explained, it is not arbitrary and
capricious for an agency to change its mind in light of experience, or in the face of new or
additional evidence, or further analysis or other factors indicating that the agency’s earlier
21
decision should be altered or abandoned.” New England Power Generators Ass’n v. FERC, 879
F.3d 1192, 1201 (D.C. Cir. 2018).
However, the Supreme Court has directed that “the scope of review under the
‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that
of the agency.” State Farm, 463 U.S. at 30. Rather, agency action is normally “entitled to a
presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
C. Jurisdiction/Venue
The Court has federal question jurisdiction, see 28 U.S.C. § 1331; 5 U.S.C. § 702,
because this lawsuit arises under a federal statute. Venue is proper because CIS is a U.S. agency
being sued for official action taken. See 28 U.S.C. § 1391(e)(1); see also Dehaemers v. Wynne,
522 F. Supp. 2d 240, 248 (D.D.C. 2007); Hunter v. Johanns, 517 F. Supp. 2d 340, 344 (D.D.C.
2007).
III. ANALYSIS
In a nutshell, Congress designed the H-1B visa in 1990 to permit speedy
processing and temporary placement of foreign workers in specialty occupations as needed by
U.S. employers. CIS has selected H-1B visa petitions from IT consulting businesses, which hire
temporary foreign workers and place most of them with third parties for assignments of less than
three years, for special treatment with the effect of dramatically slowing the processing of such
visa petitions and reducing the accessibility by U.S. employers to such workers. These facts are
not contested. The question is whether, in so doing, CIS actions were consistent with law and/or
required formal rulemaking. The Court finds that CIS has exceeded the law and was required to
engage in formal rulemaking. The CIS 2018 Policy Memo is, therefore, invalid, as are the new
22
CIS interpretation and requirements concerning itineraries. Accordingly, the Court also finds
that CIS cannot enforce the CIS 2010 Guidance Memo against Plaintiffs.
A. Statute of Limitations
1. INS 1991 Regulation
The government protests that Plaintiffs cannot challenge the INS 1991 Regulation
because this lawsuit was filed long after the six-year statute of limitations for APA claims found
in 28 U.S.C. § 2401. See Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014). The APA
limitations period begins to run “on the date of the final agency action.” Harris v. FAA, 353 F.3d
1006, 1010 (D.C. Cir. 2004).
There are two exceptions to this limitations period. First, if an agency issues
“some new promulgation” and “creates the opportunity for renewed comment and objection,” it
has effectively reopened a rule and the statute of limitations does not bar a challenge. P & V
Enters. v. Army Corps of Eng’rs, 516 F.3d 1021, 1024 (D.C. Cir. 2008). However, a general
debate on a topic does not reopen all related aspects. See Nat’l Ass’n of Reversionary Prop.
Owners v. Surface Transp. Bd., 158 F.3d 135, 142 (D.C. Cir. 1998) (“When an agency invites
debate on some aspects of a broad subject . . . it does not automatically reopen all related aspects
including those already decided.”). CIS argues that the CIS 2018 Policy Memo is not sufficient
to reopen the 1991 Rule for further challenges. Plaintiffs argue that the CIS 2018 Policy Memo
constituted a substantial review of the 1991 Rule and changed its requirements, thus reopening
the Rule itself.
“[W]here an agency’s actions show that it has not merely republished an existing
rule in order to propose minor changes to it, but has reconsidered the rule and decided to keep it
in effect, challenges to the rule are in order.” Public Citizen v. Nuclear Regulatory Comm’n, 901
F.2d 147, 150 (D.C. Cir. 1990). Cases regarding the reopening doctrine traditionally discuss the
23
ability of a notice of proposed rulemaking to “reopen” a prior rule but do not interpret a policy
memo as doing so. To determine if a rule has been reopened, courts look to the language used
by the agency.
An explicit invitation to comment on a previously settled matter,
even when not accompanied by a specific modification proposal, is
usually sufficient to affect a reopening. . . . Ambiguity in a[] [Notice
of Proposed Rulemaking] may also tilt toward a finding that the
issue has been reopened. . . . When an agency invites debate on
some aspects of a broad subject, however, it does not automatically
reopen all related aspects including those already decided.
Nat’l Ass’n of Reversionary Prop. Owners, 158 F.3d at 141-42. The CIS 2018 Policy Memo did
not invite debate or any comment on the 1991 Rule. It did not request input on the
interpretations announced by the Policy Memo itself, let alone the 1991 Rule, although it did
state that the new requirements, if unsatisfied, might lead to denial of a petition. CIS 2018
Policy Memo at 4 (“If the petitioner does not submit corroborating evidence or otherwise
demonstrate that there is a specific work assignment for the H-1B beneficiary, USCIS may deny
the petition.”); id. at 6 (“Adjudicators may deny the petition if the petitioner fails to provide an
itinerary, either with the initial petition or in response to a Request for Evidence.”). The
reopening exception to the statute of limitations is not applicable to reopen the 1991 Rule.
However, a challenge to a rule as it is applied or enforced may be brought within
six years of the enforcement action, without regard to when the rule was adopted. In this second
exception to the APA statute of limitations, the affected party may challenge the enforcement
action in an as-applied challenge and may raise the question of whether the agency lacked the
statutory authority to adopt the rule in the first place. See Indep. Cmty. Bankers of Am. v. Bd. of
Governors of Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. Cir. 1999) (holding “that a party against
whom a rule is applied may, at the time of application, pursue substantive objections to the rule,
24
including claims that an agency lacked the statutory authority to adopt the rule”); see also NLRB
Union v. Fed. Labor Relations Auth., 834 F.2d 191, 195 (D.C. Cir. 1987) (“[A] party who
possesses standing may challenge regulations directly on the ground that the issuing agency
acted in excess of its statutory authority in promulgating them. A challenge of this sort might be
raised, for example, by way of defense in an enforcement proceeding.”). 9
Plaintiffs argue that each denial or partial approval of their H-1B visa applications
constituted an application of the 1991 Rule against them that is subject to challenge. CIS
responds that an as-applied challenge to a rule admits a narrow category of actions, which does
not encompass denials of visa applications. While it is true, as CIS contends, that not every
agency application of a rule supports an as-applied challenge, it is not accurate to argue that such
challenges are limited to formal enforcement actions. See Weaver v. Fed. Motor Carrier Safety
Admin., 744 F.3d 142, 145 (D.C. Cir. 2014) (“[T]he sort of ‘application’ that opens a rule to such
a challenge is not limited to formal ‘enforcement actions.’”).
To support a challenge, an agency’s application or enforcement of its rule must be
specific to the challenging plaintiff. Examples of this limitation include when an agency relies
on its rule to impose limitations on a broadcast licensee, Functional Music, Inc. v. FCC, 274 F.2d
543, 547-48 (D.C. Cir. 1958); when an agency applies its rule to dismiss a complaint, Am. Tel. &
Tel. Co. v. FCC, 978 F.2d 727, 734 (D.C. Cir. 1992); and when an agency denies a lessee’s claim
for reimbursements under a rule, Murphy Expl. & Prod. Co. v. Dep’t of Interior, 270 F.3d 957,
9
It is also possible to avoid the normal statute of limitations when an agency denies a petition to
amend or rescind a regulation; the petitioner can appeal the denial and challenge the regulation.
See NLRB Union, 834 F.2d at 196 (“The second method of obtaining judicial review of agency
regulations once the limitations period has run is to petition the agency for amendment or
rescission of the regulations and then to appeal the agency’s decision.”). This process is not
relevant here.
25
957-59 (D.C. Cir. 2001). CIS argues that this case is like Peri & Sons Farms, Inc. v. Acosta,
where the court rejected an as-applied complaint because the challenged action was not aimed at
the plaintiffs and did not affect them in a particular way. 374 F. Supp. 3d 63, 76 (D.D.C. 2019).
Peri challenged a general notice issued by the Department of Labor on updated annual wage
rates; the notice was not directed to the plaintiffs and, therefore, was not susceptible to an as-
applied challenge. Here, however, Plaintiffs are challenging the denials or partial approvals of
individual visa petitions. Each denial or partial approval is based on an application of the 1991
Rule and its current interpretations by CIS. Therefore, as relevant to individual Plaintiffs, the
Court concludes that they can raise as-applied challenges to the Rule itself and its enforced
interpretations by CIS in their visa denials or partial approvals.
2. CIS 2010 Guidance Memo
For the same reasons discussed above regarding the 1991 Rule, as-applied
challenges to the CIS 2010 Guidance Memo will also be permitted as relevant to individual
Plaintiffs.
B. Challenge to the CIS 2018 Policy Memo
Both parties spend significant time and energy arguing about whether Plaintiffs
may properly challenge the CIS 2018 Policy Memo. Defendant argues that the CIS 2018 Policy
Memo itself may not be challenged because it is an interpretive memorandum and not a
legislative rule. They ask the Court to evaluate the CIS 2018 Policy Memo as another court did
the CIS 2010 Guidance Memo in Broadgate Inc. v. USCIS, 730 F. Supp. 2d 240. Plaintiffs
contend that the CIS 2018 Policy Memo is a legislative rule because it abandons the 1991
Regulation’s “disjunctive test” of an employer-employee relationship “in favor of a test requiring
evidence of actual control” and it “unequivocally and unabashedly restricts its adjudicators’
discretion.” Pls.’ Opp’n at 12, 14.
26
CIS has done everything it might to cloak the CIS 2018 Policy Memo in
unassailable interpretive language: it is titled a Policy Memorandum; it specifies that it affords
no rights to anyone; CIS asserts it is directed only to agency adjudicators, not to petitioners; and
it sprinkles conditional language (may, could, etc.) throughout.
Nonetheless, the CIS argument fails. Although ostensibly directed to agency
adjudicators, the CIS 2018 Policy Memo “effects a substantive regulatory change to the statutory
or regulatory regime.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 653 F.3d 1, 6-7 (D.C.
Cir. 2011) (internal quotation marks omitted). A legislative rule supplements a statute, adopts a
new position inconsistent with existing regulations, or otherwise effects a substantive change in
existing law or policy. See Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014)
(“An agency action that purports to impose legally binding obligations or prohibitions on
regulated parties—and that would be the basis for an enforcement action for violations of those
obligations or requirements—is a legislative rule.”). An agency interpretation is substantively
invalid when “it conflict[s] with the text of the regulation the agency purported to interpret.”
Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 104-05 (2015). Courts have “refused to give
deference to an agency’s interpretation of an unambiguous regulation, observing that to defer in
such a case would allow the agency ‘to create de facto a new regulation.’” Id. at 104 (quoting
Christensen v. Harris Cty., 529 U.S. 576, 588 (2000)).
There is no doubt that the CIS 2018 Policy Memo attempted to “impose legally
binding obligations . . . on regulated parties” that would be, and have been, “the basis for an
enforcement action.” Nat’l Mining Ass’n, 758 F.3d at 251. It has had an effect to which all of its
parts combine: as discussed further, it cherry picks from the formal 1991 Regulation to create a
new definition of employer, to which it grafts the CIS 2010 Guidance Memo; it adds substantive
27
requirements to the nature of the petitioning employer’s relationship to the H-1B visa recipient; it
adds meaningful requirements to the descriptions of work to be performed by H-1B visa
workers, with immediate corroborated evidence of such work for the duration of a visa; and it
demands fulsome itineraries on pain of denial for failure to comply. The CIS 2018 Policy Memo
is a legislative rule that may be directly challenged by the Plaintiffs.
Additionally, Plaintiffs may mount an as-applied challenge to the CIS 2018 Policy
Memo by directly challenging the complete or partial denial of their visa petitions. CIS issued
final agency decisions on these petitions and its actions are reviewable. See Broadgate, 730 F.
Supp. 2d at 244 (“[T]he proper challenge would have been to a specific denial of a visa
application by the agency.”) (citing RCM Techs., Inc. v. Dep’t of Homeland Sec., 614 F. Supp.
2d 39, 45 (D.D.C. 2009)).
C. Challenged Reasons for Visa Denials
As described above, Plaintiffs challenge three aspects of the CIS 2018 Policy
Memo: CIS’s current application of the employer-employee relationship, non-speculative work
assignment, and itinerary requirements to H-1B visa petitions. Defendant argues that Plaintiffs
go beyond the issues identified in the consolidation order. Not so. This Court was tasked with
deciding common issues presented in a large number of visa challenges. One of those issues was
specifically defined as “the authority of CIS to deny visas to companies that place employees at
third-party locations either because the third-party is determined to be the employer or because
specific and detailed job duties are not provided with the visa application.” See 3/6/2019 Minute
Order Referring Case for Limited Purpose (Consolidation Order), ERP Analysts v. Cissna, No.
19-cv-300. This issue encompasses CIS’s current definition of employer, requirement that
petitions include a detailed itinerary, and requirement that an application demonstrate non-
28
speculative work assignments for the entire length of the requested visa. These CIS policies are
at the heart of the collective challenges.
1. Sufficiency of Evidence of Employer-Employee Relationship
Section 1184 of the INA states that “[t]he admission to the United States of any
alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General
may by regulations prescribe . . . .” 8 U.S.C. § 1184(a)(1). The statute continues:
(1) The question of importing any alien as a nonimmigrant
under subparagraph (H) . . . of this title . . . in any specific case or
specific cases shall be determined by the Attorney General, after
consultation with appropriate agencies of the Government, upon
petition of the importing employer. Such petition, shall be made and
approved before the visa is granted. The petition shall be in such
form and contain such information as the Attorney General shall
prescribe.
Id. § 1184(c)(1). From the requirement that the petition must be submitted by “the importing
employer” came the requirement of an employer-employee relationship between the petitioning
employer and the foreign worker. As discussed above, DOL crafted a definition of employer and
included it in its formal regulation concerning Labor Condition Applications. INS included, and
CIS has maintained, the identical definition of employer in its final rule regarding the visa
application process that DOL promulgated in its initial rule and subsequent changes to the
definition by DOL have not been adopted by INS or CIS. The INS definition applied by CIS
states:
United States employer means a person, firm, corporation,
contractor, or other association, or organization in the United States
which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to
employees under this part, as indicated by the fact that it may hire,
pay, fire, supervise, or otherwise control the work of any such
employee; and
29
(3) Has an Internal Revenue Service Tax identification number.
8 C.F.R. § 214.2(h)(4)(ii) (emphasis added).
Following issuance of the CIS 2018 Policy Memo, which incorporated and
reaffirmed the CIS 2010 Guidance Memo and added standards to evaluate an employer-
employee relationship, CIS has repeatedly denied visa petitions for a failure to demonstrate an
adequate employer-employee relationship. See, e.g., Pls.’ MSJ, App’x, Dec. 19, 2018 CIS
Decision re ERP Analysts Inc. at 1-4 (finding that there was insufficient evidence of an
employer-employee relationship even though the record reflected ERP Analysts would “pay the
beneficiary a salary, employee benefits, and employment related taxes”). CIS states in its
December 19, 2019 decision on ERP Analyst’s visa petition that the “employer-employee
relationship” is not a defined term by statute or regulation and, therefore, it is free to apply its
own interpretation of the “common-law agency doctrine.” Id. at 2 (citing Nationwide Mut. Ins.
Co. v. Darden, 503 U.S. 318, 322-23 (1992); Clackamas Gastroenterology Assocs., P.C. v.
Wells, 538 U.S. 440, 445 (2003)). CIS insists that it “must focus on the common-law touchstone
of ‘control’” as demonstrated by certain limited factors. Id. at 3. These “indicia of control”
include “when, where, and how a worker performs the job; the continuity of the worker’s
relationship with the employer; the tax treatment of the worker; the provision of employee
benefits; and whether the work performed by the worker is part of the employer’s regular
business.” Id. (citing Clackamas, 538 U.S. at 445). Even in situations where the employer will
“pay the beneficiary a salary, employee benefits, and employment related taxes,” CIS looks to
“[o]ther incidents of the relationship, e.g., who will oversee and direct the work of the
beneficiary, where will the work be located, and who has the right or ability to affect the projects
30
to which the beneficiary is assigned” to determine if the petitioning employer will be in a
continuous employer-employee relationship with the foreign worker. 10 Id. at 4.
Plaintiffs argue that the new focus on “control” by CIS eviscerates the INS 1991
Regulation that recognizes an employer-employer relationship whenever the U.S. employer
“may hire, pay, fire, supervise, or otherwise control the work” of the employee. 8 C.F.R.
§ 214.2(h)(4)(ii) (emphasis added). Plaintiffs contend that CIS ignores the disjunctive in the
word “or” in the INS 1991 Regulation and instead silently replaced it with an “and” that requires
the employer to “otherwise control” the work of the foreign worker in all instances instead of
recognizing that the necessary degree of “control” is fulfilled by each of the examples in the
Regulation.
To begin its analysis, the Court must determine the degree of deference that is due
to CIS in this instance. An agency’s interpretation of its own regulations is “controlling unless
plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461
(1997) (internal quotation marks and citation omitted); see also Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 359 (1989) (“This interpretation of the agency’s own regulation
is not plainly erroneous or inconsistent with the regulation, and is thus controlling.”) (internal
quotation marks and citation omitted). The definition in the INS 1991 Regulation at issue—8
C.F.R. § 214.2(h)(4)(ii)—was drafted by DOL and then incorporated by INS as its own. Until
2018, the same definition had been used by CIS. Plaintiffs argue that because INS was not the
original author of the definition of employer-employee relationship included in the INS 1991
10
CIS appears to apply a very limited meaning to an “assignment,” restricting the determination
of who assigns work to the entity that issues day-to-day work orders, rather than considering the
fact that the IT consulting company (and visa petitioner) does the initial assignment of the H-1B
visa holder to one or more clients in need of the worker’s occupational skills.
31
Regulation, and thereafter used by CIS, no deference should be given to the CIS interpretation.
The Court need not resolve this issue, because even evaluating the CIS interpretation under Auer,
it is clear that it conflicts with the INS 1991 Regulation and, therefore, receives no deference.
CIS argues that the term “employer-employee relationship” is undefined and that
it merely interpreted the existing INS 1991 Regulation, adopted without change by CIS, but the
argument fails. First, of course, the INS 1991 Regulation clearly articulated the criteria that
define the employer-employee relationship in this context, see 8 C.F.R. § 214.2(h)(4)(ii) (part 2
of the definition of United States employer), and CIS cites only the “common law” to support its
reliance on a single criterion while ignoring all others. The common law may be a useful
touchstone but cannot contradict or limit a clear regulation that has been applied with no
objection or correction for almost three decades. A new interpretation by CIS decades later that
emphasizes one regulatory criterion to the derogation of others, without any relevant change in
the underlying statute, is not worthy of deference. The singular emphasis given by CIS to
“otherwise control” is revealed by its explanations and its reliance on common law. Because the
Court finds that the limited meaning of “employer-employee relationship” as announced and
implemented by the CIS 2018 Policy Memo is inconsistent with the longstanding INS 1991
Regulation, it required formal rulemaking and cannot be upheld. The combination of the CIS
2018 Policy Memo and the CIS 2010 Guidance Memo—to which the former gave strict and
required reading—destroys any discretion left to CIS adjudicators and renders the 2010
Guidance Memo similarly invalid as applied to Plaintiffs.
The INS 1991 Regulation at issue specifies that the employer “may hire, pay, fire,
supervise, or otherwise control the work of [the] employee.” 8 C.F.R. § 214.2(h)(4)(ii).
Therefore, an employer-employee relationship is evidenced by some aspect of “control” which
32
may be shown in various ways, be it the ability to hire, to pay, to fire, to supervise, or to control
in another fashion. The use of “or” distinctly informs regulated employers that a single listed
factor can establish the requisite “control” to demonstrate an employer-employee relationship.
This formulation makes evident that there are multiple ways to demonstrate employer control,
that is, by hiring or paying or firing or supervising or “otherwise” showing control. In context,
“otherwise” anticipates additional, not fewer, examples of employer control. INS borrowed the
DOL definition and used it in the INS 1991 Regulation, which it then interpreted in the INS 1995
Guidance Memos that governed for over twenty years without congressional action. The CIS
2018 Policy Memo abandoned the regulation’s examples of employer control and its expansive
use of “otherwise.” Instead CIS drilled down and now requires the assignment of day-to-day
tasks to show the requisite control of an employer-employee relationship. This new
interpretation was an erroneous effort to substitute the agency’s understanding of common law
for the unambiguous text of the INS 1991 Regulation and is inconsistent with it. The Court finds
that CIS has improperly avoided the rulemaking process and, therefore, may not read any single
criterion in § 214.2(h)(4)(ii) as mandatory to demonstrate an employer-employee relationship but
must consider each sufficient to establish the relationship, including, but not limited to,
“otherwise” showing control.11
2. Proof of Non-Speculative Work Assignments
The second and third challenged reasons for visa denials are entwined as both
relate to CIS’s current requirement that a petitioning employer provide proof of non-speculative
11
Therefore, the Court will remand the challenged visa applications pending before this Judge
for CIS to reevaluate its determinations about the existence of an employer-employee
relationship without requiring an employer “otherwise control” if another indicia of control is
demonstrated.
33
work assignments for the entire time of an H-1B visa (usually three years) at the time the petition
is submitted. CIS has linked the requested evidence with both the need to be employed in a
specialty occupation and the requirement that employers provide an itinerary when the H-1B
worker will perform services in more than one location.
a. Specialty Occupation
The statute defines specialty occupation. See 8 U.S.C. § 1184(i). INS included
this same definition in the INS 1991 Regulation:
an occupation which requires theoretical and practical application of
a body of highly specialized knowledge in fields of human endeavor
including, but not limited to, architecture, engineering, mathematics,
physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts.
8 C.F.R. § 214.2(h)(4)(ii). INS also described the evidence that would demonstrate a qualifying
position. See 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). Recently CIS has denied H-1B visa
petitions for failure to demonstrate that the H-1B worker would be employed in a specialty
occupation because the petition did not include evidence of non-speculative work assignments
for the entire duration of the visa. See, e.g., Dec. 19, 2018 CIS Decision re ERP Analysts Inc. at
6-7; Pls.’ MSJ, App’x, Nov. 9, 2018 CIS Decision re ERP Analysts Inc. at 11-14; Pls.’ MSJ,
App’x, Dec. 26, 2018 CIS Decision re Mythri Consulting LLC at 27-30. Plaintiffs complain that
CIS mis-uses the definition of a qualifying position—one that “requires theoretical and practical
application of a body of highly specialized knowledge,” 8 C.F.R. § 214.2(h)(4)(ii)—by requiring
the petitioning U.S. employer to demonstrate that it has specific and non-speculative assignments
for the entire time requested in the petition, that is, to present corroborated evidence of future IT
assignments for the entire three-year period. Plaintiffs argue that the new requirement to prove
34
non-speculative work assignments for a full three years is not supported by statute or regulation
and exceeds the authority of CIS.
The Court again starts with the question of deference. When reviewing an
agency’s interpretation of its enabling statute and the laws it administers, courts are guided by
“the principles of Chevron.” Mount Royal Joint Venture, 477 F.3d at 754. Chevron established
a two-step inquiry to guide the analysis. The initial question is “whether Congress has directly
spoken to the precise question at issue.” Chevron, 467 U.S. at 842. If so, then “that is the end of
the matter” because both courts and agencies “must give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43. To decide whether Congress has addressed the precise
question at issue, a reviewing court applies “the ‘traditional tools of statutory construction.’”
Fin. Planning Ass’n v. SEC, 482 F.3d 481, 487 (D.C. Cir. 2007) (quoting Chevron, 467 U.S. at843 n.9). It analyzes “the text, structure, and the overall statutory scheme, as well as the problem
Congress sought to solve.” Id. (citing PDK Labs. Inc. v. DEA, 362 F.3d 786, 796 (D.C. Cir.
2004); Sierra Club v. EPA, 294 F.3d 155, 161 (D.C. Cir. 2002)). When the statute is clear, the
text controls and no deference is extended to an agency’s interpretation that is in conflict with the
text. Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 210-11 (2011). If the statute is ambiguous
or silent on an issue, a court proceeds to the second step of the Chevron analysis and determines
whether the agency’s interpretation is based on a permissible construction of the statute.
Chevron, 467 U.S. at 843; see also Sherley v. Sebelius, 644 F.3d 388, 393-95 (D.C. Cir. 2011).
The precise question at issue is: what is a specialty occupation? Congress
provided clear guidance on the answer. It defined “specialty occupation” in the law. 8 U.S.C.
35
§ 1184(i). Importantly, Congress devised a definition for an “occupation,” not a “job.” 12 Thus, a
specialty occupation would likely encompass a host of jobs, from trainee to expert along with
concomitant but differing personal job duties. The statute requires that the petitioning employer
only employ those who are qualified in specialty occupations. Nothing in its definition requires
specific and non-speculative qualifying day-to-day assignments for the entire time requested in
the petition. While an H-1B visa holder who works in a single location in a specialty occupation
is assumed by CIS to receive qualifying daily assignments, CIS requires Plaintiffs to prove, by a
preponderance of the corroborated evidence, that the daily assignments of their H-1B visa
holders will be in their specialty occupation. This begs a rational explanation: very few, if any,
U.S. employer would be able to identify and prove daily assignments for the future three years
for professionals in specialty occupations. What the law requires, and employers can
demonstrate, is the nature of the specialty occupation and the individual qualifications of foreign
workers.
CIS cites the “[s]tandards for [a] specialty occupation position” set out by the INS
1991 Regulation adopted by CIS. See 8 C.F.R. § 214.2(h)(4)(iii)(A). The INS 1991 Regulation
states:
To qualify as a specialty occupation, the position must meet one of
the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally
the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel
positions among similar organizations or, in the alternative, an
12
A “job” is defined in Merriam-Webster as “a regular remunerative position” or “a specific
duty, role, or function.” Merriam-Webster, https://www.merriam-webster.com/dictionary/
job?src=search-dict-hed (last visited Feb. 28, 2020). An “occupation” is defined as “the
principal business of one’s life.” Merriam-Webster, https://www.merriam-webster.com/
dictionary/occupation (last visited Feb. 28, 2020).
36
employer may show that its particular position is so complex or
unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the
position; or
(4) The nature of the specific duties [is] so specialized and complex
that knowledge required to perform the duties is usually associated
with the attainment of a baccalaureate or higher degree.
Id. CIS argues that the fourth criterion justifies its requirement that employers identify non-
speculative assignments in a specialty occupation for the term of the H-1B visa. As CIS is
justifying its actions through an interpretation of its own regulation, Auer deference applies. See
Auer, 519 U.S. at 461 (holding an agency’s interpretation of its own regulations is “controlling
unless plainly erroneous or inconsistent with the regulation”).
However, CIS justifies its interpretation by reading the “or” in the INS 1991
Regulation as if it were “and.” Under the regulation, an employer must “meet one of the
following [four] criteria” to establish that the employee will be placed in a specialty occupation.
8 C.F.R. § 214.2(h)(4)(iii)(A). Criteria one, two, and three address various ways a baccalaureate
or other degree may suffice. The fourth criterion does not erase the prior three; to the contrary, it
offers an alternative by which a petitioning employer may submit evidence of “specialized and
complex” duties that usually require a degree but which the foreign worker has the experience to
perform without such studies. Obviously, an employer satisfies the regulation by demonstrating
a specialty occupation through evidence that a degree is required to hold the position, without
any consideration of the fourth criterion.
CIS appears to argue that the reference in the fourth criterion to “[t]he nature of
the specific duties” being “specialized and complex” supports its new requirement of proof of a
worker’s day-to-day job assignments, rather than his occupation. There is no such requirement
in the fourth criterion of the regulation, which recognizes a specialty occupation when “[t]he
37
nature of the specific duties are so specialized and complex” that a baccalaureate or higher
degree is usually required, id. § 214.2(h)(4)(iii)(A)(4), much less in criteria one, two, and three.
The reference to the “nature of the specific duties” may seem to support the CIS position but it is
a mirage. The regulation offers one way to demonstrate a specialty occupation when a foreign
worker does not have a degree but can perform complex duties in an occupation that usually
requires a degree. The general statement pertaining to such a demonstration does not apply to all
H-1B visa holders. It cannot be expanded, under the guise of policy, to require advance notice of
all assignments and work duties at the time of petition. 13 The CIS interpretations of the INS
1991 Regulation are plainly erroneous.14
b. Itinerary Requirement
CIS has also denied, or partially denied, H-1B visas because the accompanying
itinerary did not include descriptions of non-speculative work assignments for the duration of the
requested visa. See, e.g., Dec. 26, 2018 CIS Decision re Mythri Consulting LLC at 25-26.
Plaintiffs challenge the itinerary requirement in its entirety and also argue that the new CIS
requirement of three years’ worth of non-speculative work assignments is inconsistent with the
13
The denials to Plaintiffs’ petitions often reference Defensor v. Meissner, 201 F.3d 384, 387
(5th Cir. 2000), as support for the CIS requirement of specific work assignments. Defensor held
that the contractor employer could be required to show that the entity where the nurses would be
placed required a degree, thereby ensuring that the position was a specialty occupation. Id. at
387-88. CIS attempts to extend Defensor’s holding to require that “[t]he actual work to be
performed by the beneficiary will be in a specialty occupation based on the work requirements
imposed by the end-client who uses the beneficiary’s services.” Dec. 19, 2018 CIS Decision re
ERP Analysts Inc. at 6. But Defensor merely applied the definition of “specialty occupation”
which normally requires a degree. This Court’s conclusions, above, are not inconsistent.
14
Therefore, the Court will remand all the challenged visa applications that are pending before
this Judge for CIS to reconsider only whether the occupations qualify as “specialty occupations”
under the governing INS 1991 Regulation without the requirement that employers provide non-
speculative work assignments for the entire duration of a visa period.
38
statutory authorization of periods of paid “non-productive status” for holders of H-1B visas in
between jobs. See American Competitiveness and Workforce Improvement Act of 1998
(ACWIA), Pub. L. 105-277, 112 Stat. 2681 (October 21, 1998), codified at 8 U.S.C.
§ 1182(n)(2)(C)(vii) (clarifying that an employer of an H-1B nonimmigrant who places the
employee “in nonproductive status” and “fail[s] to pay the nonimmigrant full-time wages” has
failed to meet a condition of the Labor Condition Application). 15
When INS issued the INS 1991 Regulation, it included an itinerary requirement
which remains outstanding:
A petition that requires services to be performed or training to be
received in more than one location must include an itinerary with
the dates and locations of the services or training and must be filed
with USCIS as provided in the form instructions. The address that
the petitioner specifies as its location on the Form I-129 shall be
where the petitioner is located for purposes of this paragraph.
8 C.F.R. § 214.2(h)(2)(i)(B). Thus, the itinerary requirement is not in the statute. CIS tracks the
genesis of the itinerary requirement to the statutory grant of authority provided to the Attorney
General, noting that Congress provided that “admission to the United States of any alien as a
nonimmigrant shall be for such time and under such conditions as the Attorney General may by
regulation prescribe.” 8 U.S.C. § 1184(a)(1); see also CIS MSJ at 33-34.16 As discussed above,
the INS 1991 Regulation can only be challenged on an “as applied” basis.
15
The non-productive status provision was drafted to address “benching.” “Benching was a
practice where, after being granted H1B status, an employer would ‘bench’ an employee when it
lacked work for the employee to do, and the employer would not pay the employee during this
period of benching.” Pls.’ MSJ at 33-34. Periods without work are now allowed for H-1B visa
holders as long as they continue to be paid.
16
Plaintiffs acknowledge that § 214.2(h)(2)(i)(B) includes an itinerary requirement, but they
argue that that section was intended to control entertainers and performers in the use of
nonimmigrant visas, not specialty workers in general. Plaintiffs point to a proposed 1998 rule
that was never finalized, which they believe demonstrates that INS intended to clarify that an
39
Here, too, CIS has misread the statute—which speaks of “specialty occupations”
performed by educated persons—as meaning daily work assignments. Thus, while the INS 1991
Regulation seeks “dates and locations” of the services to be provided, 8 C.F.R.
§ 214.2(h)(2)(i)(B), it does not include work assignments or the identity of those making daily
assignments. Indeed, INS interpreted its own INS 1991 Regulation broadly in the 1995
Guidance Memos which CIS has rescinded or superseded. Now, without rulemaking, CIS
requires new details in an itinerary that are inconsistent with a professional “specialty
occupation” as previously enforced for decades and inconsistent with the regulation.
The Court concludes that, as applied to these Plaintiffs in the IT consulting sector,
it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS,
requiring contracts or other corroborated evidence of dates and locations of temporary work
assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business
model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates
the legislative nature of the CIS interpretation of the Regulation because it would effectively
destroy a long-standing business resource without congressional action.
Plaintiffs’ final challenge to the itinerary requirement is that it is inconsistent with
the ability of employers to place H-1B visa employees in “non-productive status” if suitable
work is unavailable. Plaintiffs argue that Congress considered the possibility that at some point
during a three-year visa period, an H-1B visa holder might not engage in qualifying work or
qualifying work might not be available. In response, Congress enacted the ACWIA, to permit
employers to place holders of H-1B visas in “non-productive status” as long as the employer
itinerary was only expected from foreign entertainers and performers. The 1998 Proposed Rule
never morphed into a Final Rule and the itinerary requirement in the 1991 Regulation continues
unchanged.
40
continued to pay the approved fulltime wage. See 8 U.S.C. § 1182(n)(2)(C)(vii)(I) (“It is a
failure . . . for an employer, who has filed an application under this subsection and who places an
H-1B nonimmigrant designated as a full-time employee . . . in nonproductive status due to a
decision by the employer (based on factors such as lack of work), or due to the nonimmigrant’s
lack of a permit or license, to fail to pay the nonimmigrant full-time wages . . . for all such
nonproductive time.”). Obviously, in 1998 Congress anticipated non-working periods during the
term of an H-1B visa and moved to avoid any negative impact on U.S. employees by making
foreign workers cheaper to employ. See id.The Court finds that the itinerary requirement, as imposed by the CIS
interpretation of the INS 1991 Regulation and applied to Plaintiffs by the CIS 2018 Policy
Memo, is incompatible with the 1998 ACWIA that addresses the same subject, in immediately-
related administrative schemes, and authorizes employers to place H-1B visa holders in paid
non-productive status.17 Therefore, the itinerary requirement in the INS 1991 Regulation, as
adopted by INS and now enforced by CIS, has been superseded by statute and may not be
applied to H-1B visa applicants.18
D. Authority of CIS to Grant H-1B Visas for Less Than Three Years
The final consolidated question to be resolved is whether CIS has the authority to
issue partial denials and grant H-1B visas for less than three years. It has traditionally been the
practice of U.S. employers to petition for H-1B visas for the full three-year term. Until the CIS
17
DOL is responsible for monitoring compliance with all labor conditions and may, on
complaint, fine or otherwise penalize employers who do not adhere to the Labor Condition
Application. The ACWIA declared that an employer who placed H-1B visa holders in non-
productive status, with full-time pay, committed no violation.
18
The Court will remand all challenged visa applications pending before this Judge, denied by
CIS in whole or in part due to the itinerary requirement, to CIS for reconsideration consistent
with this Opinion.
41
2018 Policy Memo, both INS and CIS usually granted or denied visa petitions in their entirety
without limiting the term by only granting in part. Plaintiffs contend that CIS must continue this
practice, that is, that CIS may only grant or deny H-1B visas in their entirety.
The same statute that granted INS authority to regulate the new H-1B visas for
nonimmigrants also permitted the Attorney General to determine applicable time limits. See 8
U.S.C. § 1184(a)(1) (“The admission to the United States of any alien as a nonimmigrant shall be
for such time and under such conditions as the Attorney General may by regulation prescribe.”)
(emphasis added). The statute provided only one caveat, to-wit, “the period of authorized
admission as such a nonimmigrant may not exceed 6 years.” Id. § 1184(g)(4). The INS 1991
Regulation, which has been adopted and maintained by CIS without substantive change,
addressed the issue:
Validity. The initial approval period of an H petition shall conform
to the limits prescribed as follows:
(A)(1) H-1B petition in a specialty occupation. An approved
petition classified under section 101(a)(15)(H)(i)(b) of the Act for
an alien in a specialty occupation shall be valid for a period of up to
three years but may not exceed the validity period of the labor
condition application.
8 C.F.R. § 214.2(h)(9)(iii) (emphasis added). Such a visa may be extended for an additional
three years. See id. § 214.2(h)(15)(ii)(B)(1) (“An extension of stay may be authorized for a
period of up to three years for a beneficiary of an H-1B petition in a specialty occupation or an
alien of distinguished merit and ability. The alien’s total period of stay may not exceed six
years.”). The plain language of the INS 1991 Regulation provides that CIS may issues visas “for
up to three years.” Id. §§ 214.2(h)(9)(iii), 214.2(h)(15)(ii)(B)(1). It did not require INS, and
does not require CIS, to grant or deny a petition for the entire period requested, although that was
42
the usual practice until 2018. The INS 1991 Regulation clearly allows petitions to be granted for
“up to three years,” which necessarily allows for lesser periods as well.
However, it is uncontested that both INS and CIS have almost uniformly granted
a visa petition for three years until recently. The CIS 2018 Policy Memo introduced a practice of
granting visa petitions from IT consultants for less than three years, which represents a change
after decades of past practice on which petitioning U.S. employers have come to rely—and
which, presumably, remains the practice for employers in other industries. In these
circumstances, CIS must provide a legitimate reason for any decision to deny, in whole or in
part, each petition for an H-1B visa. The agency must “set forth its reasons for decision; an
agency’s failure to do so constitutes arbitrary and capricious agency action.” Tourus Records,
259 F.3d at 737 (internal quotation marks omitted); see also Amerijet Int’l, Inc. v. Pistole, 753
F.3d 1343, 1350 (D.C. Cir. 2014) (“At bottom, an agency must explain ‘why it chose to do what
it did.’”) (quoting Tourus Records, 259 F.3d at 737).
Insofar as CIS denied Plaintiffs’ petitions for H-1B visas, in whole or in part,
without setting forth legitimate reasons for its decisions, the agency actions were arbitrary and
capricious in violation of the APA.
IV. CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part Plaintiffs’
Motion for Summary Judgment [Dkt. 14], grant in part and deny in part Defendant’s Cross-
Motion for Summary Judgment [Dkt. 16]. The subset of cases that are assigned to Judge
Rosemary M. Collyer will be remanded to CIS for reconsideration consistent with this Opinion
and the Court will order that such reconsideration shall be completed in no more than 60 days.
This Opinion and accompanying Order will be filed on the dockets of all the cases consolidated
43
for a limited purpose. The parties in those cases assigned to other judges will be ordered to file a
joint status report regarding the effect of this decision on their specific cases no later than two
weeks after the issuance of this Opinion. A memorializing Order accompanies this Opinion.
Date: March 10, 2020
ROSEMARY M. COLLYER
United States District Judge
44