Hospital Business Services, Inc. v. Cissna

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HOSPITAL BUSINESS SERVICES,
INC.
Plaintiff,
v. Civ. Action No. 19-0198 (EGS)
UR M. JADDOU, DIRECTOR, UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES,1
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff Hospital Business Services, Inc. (“HBSI”), a holding
company of Prime Healthcare Services, a hospital chain with
approximately 40,000 employees nationwide, sought to hire eight
foreign-born nationals in the United States as “Application
Analysts.” See Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s MSJ”), ECF
No. 18-1 at 10.2 Plaintiff challenges the denial of six of the
eight petitions by Defendant United States Citizenship and
Immigration Services (“USCIS” or the “Agency”). See id. at 12.
USCIS based its denials on the determination that the proffered
1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court
substitutes as defendant Ur M. Jaddou, for Former Director L.
Francis Cissna.
2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
1
positions do not require a bachelor’s degree or higher in a
specific specialty, and therefore do not meet the “specialty
occupation” bar for H1-B visas set out in 8 C.F.R. §
214.2(h)(4)(iii)(A). See Def.’s Mem. Supp. Cross-Mot. Summ. J. &
Opp’n (“Def.’s XMSJ”), ECF No. 19-1 at 6. HBSI alleges that
USCIS’s denials of the petitions are arbitrary and capricious in
violation of the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 701, et seq. See Pl.’s MSJ, ECF No. 18-1 at 12. Pending before
the Court are HBSI’s motion for summary judgment, ECF No. 18-1;
and USCIS’s cross motion, ECF No. 19-1. Upon consideration of
the motions, responses, and the replies thereto, the applicable
law and regulations, the entire record and the materials cited
therein, the Court GRANTS IN PART AND DENIES IN PART HBSI’s
motion for summary judgment and GRANTS IN PART AND DENIES IN
PART USCIS’s cross motion for summary judgment.
II. Background
A. Statutory and Regulatory Background
The Immigration and Nationality Act (“INA”) permits
employers to temporarily employ foreign, nonimmigrant workers in
specialty occupations through the H-1B visa program. See 8
U.S.C. § 1101(a)(15)(H). To obtain a visa, an employer first
submits to the Department of Labor (“DOL”) a Labor Condition
Application (“LCA”), which identifies the specialty occupation
at issue and certifies that the company will comply with the
2
requirements of the H-1B program. 8 U.S.C. § 1182(n)(1). Once
the DOL has certified the LCA, the employer submits it to USCIS,
along with a Petition for a Nonimmigrant Worker (“Form I-129” or
“petition”) on behalf of the alien worker, showing that the
proffered position satisfies the statutory and regulatory
requirements. 8 C.F.R. § 214.2(h)(4)(i)(B).
In line with the statutory definition in 8 U.S.C. §
1184(i)(1), the USCIS regulation defines a specialty occupation
as one that “requires the attainment of a bachelor’s degree or
higher in a specific specialty” or its equivalent, in addition
to “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). USCIS’s implementing regulations set
forth four criteria, of which at least one must be satisfied, to
determine whether a profession is a “specialty occupation.” An
occupation qualifies if:
(1) A baccalaureate or higher degree or its
equivalent is normally the minimum requirement
for entry into a particular position;
(2) The degree requirement is common to the
industry in parallel positions among similar
organization or, in the alternative, an
employer may show that its particular position
3
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 are so
specialized and complex that knowledge
required to perform the duties is usually
associated with the attainment of a
baccalaureate or higher degree.
8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). USCIS determines whether
a position qualifies as a specialty occupation, see 20 C.F.R. §
655.715; and the petitioner bears the burden of proving that the
proffered position falls within one of the four categories, see
8 U.S.C. § 1361.
To aid USCIS adjudicators in understanding job duties and
classifications, USCIS accepts “relevant documentation from an
authoritative career resource, which lists the duties, work,
environment, education, training, skills, and other
qualification requirements for the occupation.” Administrative
Record (“AR”), ECF No. 23-11 at 25. One such resource that USCIS
“routinely consults” is the U.S. Department of Labor’s (“DOL”)
Occupational Outlook Handbook (“Handbook”) for “information
about the educational requirements of particular occupations.”
Id. A second authoritative source is the DOL’s O*Net Standard
Occupational Classification (“O*Net Report”). Def.’s XMSJ, ECF
No. 19-1 at 23. The O*Net Report is “the nation’s primary source
4
for occupational information.” RELX, Inc. v. Baran, 397 F. Supp.
3d 41, 54 (D.D.C. 2019).
B. Factual and Procedural Background
HBSI provides Information Technology (“IT”) services such
as hospital billing, cash posting, collecting, and business
function services to over forty hospitals and medical centers
across eleven states. See Def.’s Stmt. of Material Facts
(“Def.’s SMF”), ECF No. 19-2 ¶ 1. All these hospitals and
medical centers, including HBSI itself, are owned by Prime
Healthcare Services (“Prime”). Id. To meet Prime’s IT needs,
HBSI employs Application Analysts, whose job duties include,
among other things, maintaining system utilization files,
assisting computer programmers in resolution of work problems,
logging and maintaining records of system performance,
developing new systems or procedures to improve production
workflow, interacting with vendors, and reporting software
problems. Id. ¶ 2; see also e.g., AR, ECF No. 23-11 at 37-40.
On April 2, 2018, HBSI filed petitions with USCIS, seeking
to secure each petition beneficiary’s H-1B status beginning
September 1, 2018. Def.’s SMF, ECF No. 19-2 ¶ 4. Each individual
had recently received a Master of Computer Science degree from a
U.S. University, see, e.g., AR, ECF No. 23-1 at 108-117; and was
offered the position of Applicant Analyst at a wage of $25.11
per hour. Def.’s SMF, ECF No. 19-2 ¶ 3, 4.
5
For each petition, HBSI provided: (1) an LCA, see AR, ECF
No. 23-2 at 2-7; (2) a letter from Prime’s President of
Operations with background information on HBSI, the job duties
of Application Analysts, and the suitability of each beneficiary
for the position, see id. at 9-12; (3) copies of the
beneficiaries’ respective Master’s degrees and official
transcripts, see, e.g., id. at 50-59; (4) a copy of their F-1
student visas and work authorizations, see, e.g., id. at 35-48;
and (5) a copy of the biographic page of their unexpired
passports, see, e.g., id. at 32-24.
In October 2018, USCIS issued a “Request For Evidence”
(“RFE”) seeking additional information regarding whether the
Application Analyst position qualified as a specialty
occupation, and for three of the petitions, additional evidence
establishing the employer-employee relationship. See Def.’s SMF,
ECF No. 19-2 ¶ 6. In the RFE, USCIS identified the deficiencies
in the petitions and provided detailed guidance on the types of
evidence that would be probative. Id. ¶ 7-12.
Six of the petitions were reviewed at USCIS’s California
Service Center and each was denied because HBSI had failed to
demonstrate that the proffered position was a specialty
occupation.3 See AR, ECF No. 23-1 at 5-12 (WAC 0003) (denial of
3For three of the petitions, USCIS also determined that HBSI had
failed to demonstrate that the beneficiary would “perform
6
petition for Suhasini Rajulapudi); AR, ECF No. 23-3 at 5-13 (WAC
1540)(denial of petition for Raghavendra Cheni); AR, ECF No. 23-
5 at 177-185 (WAC 1719) (denial of petition for Reshma Vemula);
AR, ECF No. 23-7 at 3-8 (WAC 1166) (denial of petition for Arpit
Pandya) AR, ECF No. 23-9 at 5-13 (WAC 1947) (denial of petition
for Shraddha Varvadekar); ECF No. 23-11 at 12-20 (WAC
0365)(denial of petition for Mihir Patel).4 Two of the petitions
were reviewed at the Vermont Service Center and approved. See
AR, ECF No. 23-4 at 8-9 (approval of petition for Kaushik
Yelisetti); AR, ECF No. 23-4 at 10-11 (approval of petition for
Devika Meda).
HBSI subsequently filed its Complaint in this Court on
January 28, 2019. See ECF No. 1. On October 7, 2019, HBSI moved
for summary judgment, seeking an order from this Court directing
USCIS to grant the six H1-B petitions. See Pl.’s MSJ, ECF No.
18-1. USCIS opposed and filed a cross motion for summary
judgment on November 6, 2019. See Def.’s XMSJ, ECF No. 19-1.
HBSI filed an opposition to the cross motion shortly thereafter.
See Pl.’s Mem. Opp. Def.’s Cross Mot. for Summary Judgment
services in a specialty occupation at your location for the
requested employment period.” AR, ECF No. 23-3 at 8. Neither
party sought summary judgment on this aspect of the decisions.
See generally Pl.’s MSJ, ECF No. 18-1, Def.’s XMSJ, ECF No. 19.
4 Each Administrative Record is largely similar, as is each USCIS
Decision. Accordingly, the Court generally cites to the first AR
in the record in this case and indicates where there are
significant differences in USCIS’s decisions.
7
(“Pl.’s Opp’n”), ECF No. 21. USCIS replied on December 4, 2019.
See Def.’s Reply, ECF No. 22. The cross motions are ripe and
ready for the Court’s adjudication.
III. Standard of Review
Summary judgment is ordinarily warranted when “the
pleadings, the discovery and disclosure materials on file, and
any affidavits [or declarations] show that there is no genuine
issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Air Transp. Ass’n of Am. v. Nat’l
Mediation Bd., 719 F. Supp. 2d 26, 31-32 (D.D.C. 2010)
(alteration in original) (citing Fed. R. Civ. P. 56(c)), aff’d,
663 F.3d 476 (D.C. Cir. 2011)). However, this standard does not
apply in cases, such as this one, involving review of agency
action under the APA “because of the limited role of a court in
reviewing the administrative record.” Ctr. for Food Safety v.
Salazar, 898 F. Supp. 2d 130, 138 (D.D.C. 2012). “[T]he 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 v. Mainella,
459 F. Supp. 2d 76, 90 (D.D.C. 2006) (internal quotation marks
and citations omitted). In such cases, summary judgment “serves
as the mechanism for deciding, as a matter of law, whether the
agency action is supported by the administrative record and
otherwise consistent with the APA standard of review.” Cottage
8
Health Sys. v. Sebelius, 631 F. Supp. 2d 80, 90 (D.D.C. 2009)
(internal citations omitted).
Under the APA, the question for the court is limited to
whether the agency action was “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). Review of agency action is “highly
deferential.” AT & T, Inc. v. FCC, 886 F.3d 1236, 1245 (D.C.
Cir. 2018) (quoting Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536,
541 (D.C. Cir. 2009)). While the agency “‘must examine’ the
relevant factors and data and articulate a ‘rational connection’
between the record and [its] decision,” id. (quoting Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983));
the “decision need not be a model of analytic precision to
survive a challenge,” Coburn v. McHugh, 679 F.3d 924, 934 (D.C.
Cir. 2012) (internal quotation marks and citations omitted). The
inquiry is “narrow,” and the court “is not to substitute its
judgment for that of the agency.” State Farm, 463 U.S. at 43.
Although the scope of review is deferential, “courts retain
a role ... in ensuring that agencies have engaged in reasoned
decision making.” Iaccarino v. Duke, 327 F. Supp. 3d 163, 177
(D.D.C. 2018) (citing Judulang v. Holder, 565 U.S. 42, 53, 132
S. Ct. 476, 181 L. Ed. 2d 449 (2011)). The requirement that an
agency action not be arbitrary and capricious includes a
9
requirement that the agency adequately explain its result. Id.(citing Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.
Cir. 1993)). Judicial review is “not toothless: a court will
find an Agency acted arbitrarily or capriciously if it has
relied on factors Congress did not intend it to consider,
entirely failed to consider an important aspect of the problem,
or offered an explanation either contrary to the evidence before
the agency or so implausible as to not reflect either a
difference in view or agency expertise.” Taylor Made Software,
Inc. v. Cuccinelli, 453 F.Supp.3d 237, 242 (D.D.C. 2020) (citing
Defs. of Wildlife v. Jewell, 815 F.3d 1, 9 (D.C. Cir. 2016))
(internal quotation marks omitted).
IV. Analysis
HBSI challenges USCIS’s denials in two ways. First, HBSI
contends that the Agency seeks to implement a new interpretation
of 8 C.F.R. § 214.2(h)(4)(iii)(A), and that this interpretation
does not warrant Auer deference.5 See Pl.’s Opp’n, ECF No. 21, at
19. Second, HBSI argues that the Agency’s denials were arbitrary
and capricious with regard to all four of the 8 C.F.R. §
5HBSI also argues that USCIS’s interpretation of “specialty
occupation” in 8 C.F.R. § 214.2(h)(4)(ii) is not entitled to
deference because it “parrots” the statutory language. Pl.’s
Opp’n, ECF No. 21 at 18. However, and as USCIS points out, HBSI
challenges USCIS’s interpretation and application of 8 C.F.R. §
214.2(h)(4)(iii); not USCIS’s interpretation of “specialty
occupation.” Accordingly, the Court need not address this
argument.
10
214.2(h)(4)(iii)(A) criteria. See id. at 7. The Court addresses
each of these arguments in turn.
A. USCIS’S Interpretation of 8 C.F.R. § 214.2(h)(4)(iii)(A) Is
Entitled to Deference
HBSI argues that USCIS’s interpretation of its regulation
at 8 CFR § 214.2(h)(4)(iii)(A) to require a bachelor’s degree or
higher in a specific specialty, rather than any bachelor’s
degree, violates the plain language of the regulation. See Pl.’s
Opp’n, ECF No. 18-1 at 20. USCIS responds that its
interpretation is permissible when the provision is read in
concert with the statutory and regulatory definitions of
“specialty occupation,” noting that HBSI’s argument was rejected
in Sagarwala v. Cissna, 387 F. Supp. 3d 56 (D.D.C. 2019) (as
well as a number of cases in other districts). See Def.’s XMSJ,
ECF No. 19-1 at 15-16. USCIS also notes that HBSI fails to cite,
much less distinguish, this persuasive authority. Def.’s Reply,
ECF No. 22 at 6.
USCIS’s interpretation of its own regulation 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). Auer deference is
appropriate when: (1) “the regulation is genuinely ambiguous”;
(2) “the character and context of the agency interpretation
entitles it to controlling weight” based on, among other things,
whether the regulatory interpretation is (a) the agency’s
11
authoritative or official position and (b) implicates the
agency’s substantive expertise; and (3) the “agency’s reading of
a rule . . . reflects its ‘fair and considered judgment’” Kisor
v. Wilkie, 139 S. Ct. 2400, 2415-17 (2019) (quoting Auer, 519
U.S. at 462); rather than a “convenient litigating position” or
a new interpretation that “creates unfair surprise” to regulated
parties, id. at 2417-18 (internal quotations and citations
omitted). In determining whether the statute unambiguously
expresses the intent of Congress, the Court should use all the
“traditional tools of statutory construction,” including looking
to the text and structure of the statute, as well as its
legislative history, if appropriate. Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 873, 843, n.9.
“If genuine ambiguity remains . . . the agency’s reading must
fall within the bounds of reasonable interpretation.” Kisor, 139
S. Ct. at 2415 (internal quotation marks and citations omitted).
USCIS does not dispute that the regulation is ambiguous.
See generally Def.’s XMSJ, ECF No. 19-1. HBSI, however, argues
that “the regulation is not ‘genuinely ambiguous’ [because] [i]t
creates ‘precise’ requirements for employers to satisfy the
second H-1B element.” Pl.’s Opp’n, ECF No. 21 at 22. But the
evidence that the petitioner may provide to establish that the
position qualifies as a specialty position is beside the point.
The issue is whether 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) is
12
susceptible to more than one interpretation. The Court is
persuaded that it is because taking into account the text and
structure of the statute and regulations, it could be
interpreted to require a baccalaureate degree or higher in a
specific specialty or any baccalaureate or higher degree. See
Sagarwala, 387 F. Supp. 3d at 68.
HBSI also claims that “the agency lacks the substantive
expertise needed to make its own determination on the degree
requirement,” pointing to agency policies that direct agency
adjudicators to consult with experts regarding the degree
requirement when there is uncertainty. Pl.’s Opp’n, ECF No. 21
at 22-23. The Court disagrees. USCIS determines whether a
position qualifies as a specialty occupation, see 20 C.F.R. §
655.715; and the employer bears the burden of convincing the
Agency that the position qualifies and the applicant is
otherwise eligible for a visa, see 8 U.S.C. § 1361. USCIS’s
relevant substantive expertise is a factor in the deference due
to USCIS’s determination of a specialty occupation. See Kisor,
139 S. Ct. at 2403 (observing that “the basis for deference ebbs
when the subject matter of a dispute is distant from the
agency's ordinary duties”). Making specialty occupation
determinations for H-1B visas is not, therefore, “distant” from
USCIS’s “ordinary duties.” Id.13
The Court is persuaded that USCIS’s interpretation of the
regulation to require a bachelor’s degree or higher or its
equivalent in a specific specialty “fall[s] within the bounds of
reasonable interpretation.” Kisor, 139 S. Ct. at 2416. The
regulation refers to “[a] baccalaureate degree or higher or its
equivalent,” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1); without
specifying that the degree needs to be in a specific specialty.
However, the statutory context is admitting nonimmigrants to
perform a specialty occupation, which is statutorily defined to
include 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)(B); see also 8 C.F.R. § 214(h)(4)(ii)) (defining
specialty occupation to mean, among other things, “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”). USCIS’s interpretation is
neither “plainly erroneous or inconsistent with the regulation,”
Mellow Partners, 890 F.3d at 1079; when understood in the
statutory and regulatory context.
Additionally, the Court is persuaded that “the character
and context of the agency interpretation entitles it to
controlling weight,” Kisor, 139 S. Ct. at 2416; because USCIS’s
interpretation is an official agency position that implicates
14
its substantive expertise in interpreting its regulations, see
Sagarwala, 387 F. Supp. 3d at 67. Furthermore, USCIS’s
interpretation is not a litigation position or a new
interpretation, but it is the agency’s “fair and considered
judgment.” Kisor, 139 S. Ct. at 2417.
B. UCSIS’ Training Materials Are Not Final Agency Action
Subject to Judicial Review Under the APA
HBSI argues that USCIS enacted an “unlawful legislative
rule,” pointing to USCIS’s training materials which it contends
require its employees to “deny petitions for computer related
positions unless a particular degree is necessary and always
required of all United States workers doing the position.” Pl.’s
Mot., ECF No. 18-1 at 21. USCIS responds—and the Court agrees—
that the training materials are not final agency action subject
to judicial review.
“Agency actions are final if two independent conditions are
met: (1) the action ‘mark[s] the consummation of the agency's
decisionmaking process’ and is not ‘of a merely tentative or
interlocutory nature;’ and (2) it is an action ‘by which rights
or obligations have been determined, or from which legal
consequences will flow.’” Soundboard Ass’n v. FTC, 888 F.3d
1261, 1267 (D.C. Cir. 2018) (quoting Bennett v. Spear, 520 U.S.
154, 177-78, 17 S. Ct. 1154, 137 L. Ed. 2d 281 (1997)) (internal
quotation marks omitted). Neither of these conditions are met
15
with the training materials. Rather, the final agency action
subject to judicial review under the APA is USCIS’s
determinations on each of the petitions. 6
C. Deference is Owed to the Decisions of the USCIS Service
Centers7
HBSI argues that no deference is due to the decisions of
USCIS’s service centers because since they are “among the lowest
level decision makers in the agency,” their interpretation of
regulations “cannot be construed as official or authoritative.”
Pl.’s Opp’n, ECF No. 21 at 27. The Court disagrees. “[D]eference
is owed to the decisionmaker authorized to speak on behalf of
the agency . . ..” Serono Laboratories, Inc. v. Shalala, 158
F.3d 1313, 1321 (D.C. Cir. 1998). Accordingly, the six decisions
issued by the service centers are not “ad hoc statement[s] not
reflecting the agency’s views,” Kisor, 139 S. Ct. at 2416; but
rather the outcome of “the decisionmaker authorized to speak on
behalf of the agency.” Serono, 158 F.3d at 1321.
6 Because the training materials are not final agency action, the
Court need not reach HBSI’s argument that the training materials
amount to a “legislative rule.” Pl.’s MSJ, ECF No. 18-1 at 20.
7 HBSI also asserts that USCIS cannot engage in “adjudicative
rulemaking.” Pl’s Opp’n, ECF No. 21 at 26. However, and as USCIS
points out, “[t]he final decisions that [HBSI challenges in this
action are adjudications, not ‘adjudicative rulemaking.’” Def.’s
Reply, ECF no. 22 at 9 (citing Conf. Grp. V. FCC, 720 F.3d 957,
965 (D.C. Cir. 2013) (noting that adjudications are “highly
fact-specific, case-by-case” determinations).
16
D. Analysis of the 8 C.F.R. § 214.2(h)(4)(iii)(A) Factors
HBSI is entitled to the relief sought if USCIS’s denials of
the petitions were arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. 5 U.S.C. §
706(2)(A). HBSI argues that USCIS’s decisions were arbitrary and
capricious in concluding that the Application Analyst position
was not a specialty occupation. See Pl.’s MSJ, ECF No. 18-1 at
7.
A “specialty occupation” is “an occupation that requires
theoretical and practical application of a body of highly
specialized knowledge; and 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). To qualify as a specialty occupation, the
position must meet at least one of four criteria: (1) a
baccalaureate or higher degree 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 the position is so
unique or complex that only an individual with a degree can
perform it; (3) the employer normally requires a degree or its
equivalent for the position; or (4) the nature of the specific
duties are so specialized and complex that the knowledge
required to perform the duties is usually associated with
17
attainment of a baccalaureate degree or higher. 8 C.F.R. §
214.2(h)(4)(iii)(A). USCIS considers these regulatory criteria
to be “supplemental criteria that must be met in accordance
with, and not as alternatives to, the statutory and regulatory
definitions of specialty occupation.” AR, ECF No. 23-1 at 6.
USCIS first determined that the Application Analyst
position does not qualify as a specialty occupation because
[t]he duties as described do not communicate:
(1) the actual work that the beneficiary would
perform; (2) the complexity, uniqueness and/or
specialization of the duties; or (3) the
correlation between that work and a need for
a particular level of education of highly
specialized knowledge in a specific specialty.
Thus, you have not shown that the proffered
position is a specialty occupation and the
petition must be denied on this basis alone.
Id. at 8.
However, USCIS went on to analyze “the duties as described
and the evidence of record to determine whether the proffered
position as described would qualify as a specialty occupation”
based on whether HBSI had shown that the position meets at least
one of the four criteria set forth at 8 C.F.R. §
214.2(h)(4)(iii)(A). Since these four criteria “unambiguously
‘create a necessary . . . condition’ for the issuance of a H-1B
visa,” Sagarwala, 387 F. Supp. 3d at 64; HBSI must show that
USCIS was wrong about at least one of the criteria.
18
The Court will discuss each of the four factors in turn,
cognizant that its review is limited only to “whether the
decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.”
ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1083 (D.C. Cir.
2002) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971)). It
is not enough that the Court “would have come to a different
conclusion” than the Agency had it considered the matter de
novo. Conservation Law Found. v. Ross, 374 F. Supp. 3d 77, 89
(D.D.C. 2019).
1. USCIS Abused Its Discretion in Determining That a
“Baccalaureate or Higher Degree or Its Equivalent
Is Not Normally the Minimum Requirement For Entry
Into the Computer Systems Analyst Position”
a. The Handbook Rationale
USCIS determined that HBSI failed to demonstrate that the
proffered position met the first criterion. Each decision relied
on the Handbook to conclude that “a bachelor’s level of training
in a specific specialty is not required for the Computer Systems
Analysts occupation. Many Computer Systems Analysts have liberal
arts degrees and gained experience elsewhere.” AR, ECF No.23-1 at
9.
The Handbook provides in relevant part:
A bachelor’s degree in a computer or
information science field is common, although
19
not always a requirement. Some firms hire
analysts with business or liberal arts degrees
who have skills in information technology or
computer programming.
Most computer systems analysts have a
bachelor’s degree in a computer-related field.
Because these analysts also are heavily
involved in the business side of a company, it
may be helpful to take business courses or
major in management information systems.
Although many computer systems analysts have
technical degrees, such a degree is not always
a requirement. Many analysts have liberal arts
degrees and have gained programming or
technical expertise elsewhere.
Some employers prefer applicants who have a
master's degree in business administration
(MBA) with a concentration in Information
systems. For more technically complex jobs, a
master's degree in computer science may be
more appropriate.
AR, ECF No. 23-11 at 74.
Pointing to the dictionary meaning of the words “most” and
“normally,” Pl.’s MSJ, ECF No. 18-1 at 24; HBSI argues that
USCIS’s determination was arbitrary and capricious because there
is no rational connection between the Handbook’s description
that “[m]ost computer systems analysts have a bachelor’s degree
in a computer-related field” and USCIS’s determination that the
petitions did not satisfy this criterion because a degree is not
“normally” required. Pl.’s MSJ, ECF No. 18-1 at 26.
USCIS responds that the Handbook “does not explicitly state
that a bachelor’s degree in a computer-related field is
20
‘normally’ required.” Def.’s XMSJ, ECF No. 19-1 at 21. While
acknowledging that the Handbook asserts “that a bachelor’s
degree in a computer or information science field is ‘common’—a
term that can be synonymous with ‘normal,’” USCIS points to the
principle that “an agency decision may be supported by
substantial evidence even though a plausible alternative
interpretation of the evidence would support a contrary view,”
id. (quoting Morall v. DEA, 412 F.3d 165, 176 (D.C. Cir. 2005)).
USCIS also points out that other parts of the Handbook suggest
that a bachelor’s degree in computer science is not “normally”
required because it states that “many analysts have liberal arts
degrees and have gained programming or technical experience
elsewhere.” Id. at 22 (quoting the AR).
Following the completion of summary judgment briefing, HBSI
submitted a Notice of Supplemental authority, discussed
immediately below, asserting that the underlying USCIS decisions
and rationales are indistinguishable from the new persuasive
authority. See Notice, ECF No. 24 at 2. USCIS did not respond to
the Notice nor distinguish the new authority. See generally
Docket for Civil Action No. 19-198.
In Taylor Made Software, Inc. v. Cucccinelli, 453 F. Supp.
3d 237 (D.D.C. 2020), USCIS had denied the plaintiff’s petition
to employ, as a computer systems analyst, a person with a Master
of Science in Computer Science based on the same Handbook
21
rationale as here. 453 F. Supp. 3d at 241, 244. The District
Court rejected USCIS’s reading of the Handbook as well as the
conclusion drawn from it, observing “[t]he Handbook’s statement
that a bachelor’s degree in computer or information science is
‘common, although not always a requirement’ seems to support,
rather than disprove, the proposition that ‘[a] baccalaureate or
higher degree [in a specific specialty] or its equivalent is
normally the minimum requirement for entry into the particular
position.’” Id. at 244 (citing 8 C.F.R. § 214(h)(4)(iii)(a)(1)
(emphasis added)); see also Info Labs Inc. v. USCIS, Civil
Action No. 19-684, 2020 WL 1536251, * 4 (D.D.C. Mar. 31, 2020)
(“[T]he Handbook’s statement that a bachelor’s degree in
computer or information science is ‘common, although not always
a requirement’ supports, rather than disproves, the proposition
that a specialized degree or its equivalent is normally the
requirement.”); see also 3Q Digital, Inc. v. USCIS, No. 19-cv-
579, 2020 WL 1079068, at *3 (D.D.C. 2020) (“[The regulation]
does not say that a degree must always be required, yet the
Agency appears to have substituted the word ‘always’ for the
word ‘normally.’ This is a misinterpretation and misapplication
of the law, and [one that] effectively hold[s] the Plaintiff to
a higher standard than that which is set by the regulation
...”); Innova Solutions, Inc. v. Baran, 983 F.3d 428, 432, (9th
Cir. 2020) (internal citations and quotation marks omitted)
22
([T]he fact that some [systems analysts] are hired without a
bachelor’s degree is entirely consistent with a bachelor’s
degree normally [being] the minimum requirement for entry.”);
but see Altimetrik Corp. v. Cissna, No. 18-10116, 2018 WL
6604258, at *6 (E.D. Mich. 2018) (internal citations and
quotation marks omitted) (The Handbook “makes it clear that a
degree in a computer-related field is not required” for computer
system analysts because “[s]ome firms hire analysts with
business or liberal arts degrees.”).
The Court recognizes that there is some divergent
authority, but finds Taylor Made and Info Labs to be more
persuasive. As indicated supra, USCIS did not attempt to
distinguish this authority.8 USCIS’s determination that “a
bachelor’s level of training in a specific specialty is not
required for the Computer Systems Analysts occupation [because]
[m]any Computer Systems Analysis have liberal arts degrees and
gained experience elsewhere,” AR, ECF No. 23-1 at 9; failed to
consider the relevant statements in the Handbook that “[a]
bachelor’s degree in a computer or information science field is
8 The Court need not consider USCIS’s arguments distinguishing
Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267
(S.D.N.Y. 2017) on the ground that the occupations at issue here
are computer systems analyst positions whereas computer
programmer occupations were at issue in that case because there
is persuasive authority addressing computer systems analyst
positions.
23
common, although not always a requirement,” and that “[m]ost
computer systems analysts have a bachelor’s degree in a
computer-related field.” AR, ECF No. 23-11 at 74. USCIS’s
reliance on the statement that an undetermined number of persons
in the position “have liberal arts degrees and gained experience
elsewhere,” AR, ECF No. 23-1 at 9; ignores these relevant
factors. USCIS’s argument that the decision is a “plausible,
alternative interpretation” because the Handbook “does not
explicitly state that a bachelor’s degree in a computer-related
field is ‘normally’ required,” Def.’s XMSJ, ECF No. 19-1 at 21;
is unpersuasive because the language in the Handbook certainly
“implie[s] that a specialized bachelor’s degree is the typical
baseline requirement.” Taylor Made, 453 F. Supp. 3d at 245.
b. The O*Net Report Rationale
Four of the decisions also relied on the O*NET Report to
conclude that the zone in which the position is classified
“signifies only that most but not all of the occupations within
it require a bachelor’s degree.” AR, ECF No. 23-3 at 8. The
O*Net states in relevant part that: (1) “considerable
preparation is needed” for positions in this zone; and (2)
“[m]ost of these occupations require a four-year bachelor’s
degree, but some do not.”
https://www.onetonline.org/link/summary/15-1211.00?redir=15-
1121.00 (accessed August 21, 2021). USCIS determined that “a Job
24
Zone 4 signifies only that most but not all of the occupations
within it require a bachelor’s degree,” and that there is no
evidence that it requires “particular majors or academic
concentrations.” AR, ECF No. 23-3 at 8; AR, ECF No. 23-5 at 180;
AR, ECF No. 23-9 at 8; and AR, ECF No. 23-11 at 15.
HBSI argues that USCIS’s “treatment of the O*Net fails to
address the salient question: “where, besides a degree in
computer science, would employees get this required knowledge?”
Pl.’s MSJ, ECF No. 18-1 at 24. USCIS argues that although the
O*Net classification “may signify that most of the occupations
require a bachelor’s degree,” “this does not establish that a
bachelor’s degree or higher in a specific specialty is normally
required for entry into the position.” Id. at 23-24
The Court finds USCIS’s determination regarding the O*Net
Report to be reasonable. The Report provides no information
about whether the four-year bachelor’s degree required for
“most” Job Zone Four occupations needs to be in a particular
major or academic concentration.
However, all six petitions were also denied based on the
handbook rationale. For the reasons discussed above, the
decisions were not based “on a consideration of the relevant
factors” and there was “a clear error of judgment.” ExxonMobil
Gas Mktg. Co., 297 F.3d at 1083. Accordingly, USCIS was
arbitrary, capricious, and abused its discretion in its
25
decisions regarding this criterion. The decisions will be
remanded to USCIS to make a new determination for all six
petitions consistent with this Memorandum Opinion.
2.a. USCIS Did Not Abuse Its Discretion In Determining
That HBSI Failed to Demonstrate That “The Degree
Requirement Is Common to the Industry In Parallel
Positions Among Similar Organizations”
In the RFE, USCIS informed HBSI of the types of evidence
that could be submitted to satisfy this criterion: (1) job
postings or advertisements with supporting documentation; (2)
letters from industry-related professional associations; and/or
(3) letters or affidavits from firms or individuals in the
industry with supporting documentation, all of which must speak
to similar firms routinely employing and recruiting individuals
with a bachelor’s degree or higher in a specific specialty. AR,
ECF No. 23-1 at 29.
In response to the RFE, HBSI provided copies of
Applications for Permanent Employment Certification from the
U.S. Department of Labor (“certification”) from four employers.
HBSI stated that: (1) “these organizations are large
organizations similar in size to HBSI and the Prime Healthcare
system”; (2) the positions for which certification was sought
are “in line” with the petitions due to the education required
and the nature of the job duties; and (3) the information in
26
each certification “established the degree requirement as common
within the profession.” AR, ECF No. 23-1 at 45.
The certification from Electrolux Home Products, Inc. was
for a Computer Systems Analyst Position, Level IV; and indicated
that the minimum education required was a bachelor’s degree in
electronic engineering or a related engineering field. AR, ECF
No. 23-1 at 60-62. The certification from Arthrex, Inc. was for
a Computer Systems Analyst position, Level IV, and indicated
that the minimum education required was a bachelor’s degree in
computer science, engineering, information systems, or related
field. AR, ECF No. 23-1 at 76-78. The certification from Paul,
Weiss, Rifkind, Wharton & Garrison LLP was for a Computer
Systems Analyst position, Level IV, and indicated that the
minimal educational requirement was a bachelor’s degree in
computer science, mathematics, or a closely related field. AR,
ECF No. 23-1 at 84-86. Finally, the certification from PetSmart,
Inc. was for a Computer Systems Analyst, Level IV, and indicated
that the minimum educational requirement was a bachelor’s degree
in engineering, computer science, mathematics, or related field.
AR, ECF No. 23-1 at 92-94. Each of the certifications includes
information about advertising for the positions in newspapers
and job search websites, which HBSI incorporated by reference
into its response. Id. at 45.
27
USCIS determined that the evidence submitted was
insufficient to meet this criterion because: (1) the
“certification[s] are not sufficient evidence of a degree
requirement being common to the industry in parallel positions
among similar organizations,” AR, ECF No. 23-1 at 9; (2) the
proffered employers are “dissimilar to your organization,” AR,
ECF No. 23-3 at 9; and/or (3) no documentation was submitted
regarding industry-standard degree requirements, AR, ECF No. 23-
7 at 6. Three of the Decisions noted that one of the
certifications indicated that one of the employers would accept
applicants with any engineering degree and stated that because
engineering encompasses numerous fields, this would not be a
specialty occupation. AR, ECF No. 23-3 at 9; AR, ECF No. 23-5 at
181; AR, ECF No. 23-11 at 16. Two Decisions stated that the
certifications indicate that the field of study is not limited
to computer science, which is the degree appropriate to the
proffered positions. AR, ECF No. 23-9 at 9; AR ECF No. 23-11 at
16.
HBSI argues that USCIS has not provided any “regulations,
guidance, or explanation of what constitutes a ‘parallel
position’ in a ‘similar organization’” and as a result there is
no clear standard for agency decision-making. Pl.’s Opp’n, ECF
No. 18-1 at 26-27. HBSI also argues that USCIS did not consider
28
HBSI’s “in depth analysis of how each exemplar was a parallel
position in a similar organization.” Id. at 27.
USCIS responds that it “articulated a rational connection
between the record and its decision,” citing the explanations
provided in the decisions. Def.’s XMSJ, ECF No. 19-1 at 29-30.
USCIS also points out that in Sagarwala, the plaintiff provided
letters of support from other companies in addition to job
posting, but the court nonetheless found that “it was not
unreasonable for UCSIS to conclude that a bachelor’s degree was
common across the industry in parallel positions, but that one
in a specific specialty was not. Sagarwala, 387 F. Supp. 3d at
67-68.
As an initial matter, USCIS’s position in some of the
decisions that a specific degree is required for a position to
be considered a “specialty position” is unsound. As the Court
has stated before, “[t]here is no requirement in the statute
that only one type of degree be accepted for a position to be
specialized.” RELX, 397 F. Supp. 3d at 54–55. The statute and
regulations simply require that “the position requires the
beneficiary to apply practical and theoretical specialized
knowledge and [have] a higher education degree.” Id.; see also
Residential Fin. Corp. v. USCIS, 839 F. Supp. 2d 985, 997 (S.D.
Ohio 2012) (“Diplomas rarely come bearing occupation-specific
majors.”); Tapis Int’l v. I.N.S., 94 F. Supp. 2d 172, 175-76 (D.
29
Mass. 2000) (rejecting a similar USCIS interpretation because it
would preclude any position from satisfying the “specialty
occupation” requirements where a specific degree is not
available in that field).
However, because USCIS has offered “multiple independent
grounds” for its determination that HBSI did not satisfy this
criterion, Fogo De Chao (Holdings) v. U.S. Dep’t of Homeland
Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (internal citation
omitted); the Court concludes that USCIS did not abuse its
discretion in its determination that HBSI failed to demonstrate
that a degree requirement is common to the industry in parallel
positions9 among similar organizations. Contrary to HBSI’s
complaint about the lack of guidance, the RFE provided HBSI with
detailed guidance on the types of evidence that would satisfy
this criterion, making clear that the focus is on the employer’s
industry. HBSI contends that the employers for which it provided
the certifications are similar because they “are large
organizations similar in size to HBSI and the Prime Healthcare
system.” AR, ECF No. 23-1 at 45. However, HBSI failed to provide
any evidence related to the requirements for Computer Systems
Analysts in the industry that provides IT services to the
9There does not appear to be a dispute as to whether the evidence
demonstrated that the positions were parallel as each was for a
Computer Systems Analyst, Level IV position.
30
healthcare industry. Accordingly, it was not arbitrary,
capricious, or an abuse of discretion for USCIS to determine
that HBSI failed to meet its burden on this criterion.
2.b USCIS Did Not Abuse Its Discretion In Determining
That HBSI Failed to “Demonstrate That the Particular
Position Is So Complex or Unique That It Can Be
Performed Only By An Individual With a Degree”
In the RFE, USCIS informed HBSI of the types of evidence
that could be submitted to satisfy the criterion: (1) letters
from an industry-related professional association supporting
that the position is so complex or unique that it requires an
individual with a degree; (2) copies of letters or affidavits
from firms or individuals attesting to the same with an
explanation of the writer’s qualifications as an expert,
knowledge the of petitioner’s business, how the conclusions were
reached, and the basis for the conclusions; and/or (3) copies of
trade publications or industry articles demonstrating the
necessity for the degree. See AR, ECF No. 23-1 at 30.
In response to the RFE, HBSI provided: (1) a detailed
description of the job duties, see AR, ECF No. 23-1 at 46-48;
(2) a narrative explanation of how the performance of the duties
by an individual with a degree enables HBSI to carry out its
mission, id. at 49; and (3) a letter from HBSI’s President of
Operations containing largely duplicative descriptions of the
job duties and stating that the minimum requirements for the
31
position are a bachelor’s degree or foreign equivalent in
computer science or other closely related degree in the field,
id. at 100-104.
USCIS determined that HBSI did not satisfy this criterion
on the following grounds: (1) “[t]he submitted list of duties
“was generic in nature and provides no further detail as to the
unique or complex nature of the proffered position,” AR, ECF No.
23-1 at 10; and (2) the LCA HBSI certified to DOL was for a
“Wage Level 1” (entry level) position, which requires the holder
to have “only a basic understanding of the occupation . . .
perform routine tasks that require limited, if any, exercise of
judgment,” id. (quoting DOL Guidelines).
The Court concludes that USCIS did not abuse its discretion
in its determination that HBSI failed to demonstrate that the
position can only be performed by a person with a degree due to
its complexity and uniqueness. First, the evidence HBSI provided
in response to the RFE, while describing the duties, did not
explain why they were so complex and unique that a bachelor’s
degree or higher in a computer related field was necessary.
Second, the descriptions did not establish what aspect of the
duties required at least a bachelor’s degree, beyond the
unsubstantiated assertion by the President of Operations.
HBSI argues that denying the petitions on the grounds that
the positions are entry level “violates the plain language of
32
the regulation” because the regulation acknowledges that an
entry-level position can qualify as a specialty occupation,
pointing to a USCIS AAO Decision for the proposition that an
entry-level position can be a specialty occupation. Pl.’s MSJ,
ECF No. 18-1 at 28. USCIS responds—and the Court agrees—that
HBSI’s characterization of the denials is inaccurate: “the
Agency did not state that a Level One Wage precluded
classification as a specialty occupation,” but rather that “the
proffered wage level did not support HBSI’s assertion that the
proffered position involves duties seen as unique or complex.”
Def.’s XMSJ, ECF No. 19-1 at 34.
HBSI also asserts that USCIS’s reliance on the LCA is not
entitled to deference because the LCA is a Department of Labor
rather than a USCIS document and that the boilerplate language
in the decision is “devoid of any details that would indicate it
read or analyzed [HBSI’s] submission,” indicating that USCIS’s
adjudicators lack the competence to determine how complex the
position is. Pl.’s MSJ, ECF No 18-1 at 29-30. USCIS responds—and
the Court agrees—that that HBSI has not cited to any legal
authority that would require USCIS to defer to an employer’s
determination that a position is a specialty occupation. Id. at
34-35.
Based on HBSI’s failure to explain why the duties were so
complex and unique that a bachelor’s degree or higher in a
33
computer related field was necessary nor what part of the duties
required at least a bachelor’s degree, beyond the
unsubstantiated assertion by the President of Operations, it was
not arbitrary, capricious, or an abuse of discretion for USCIS
to determine that HBSI failed to meet its burden on this
criterion.
3. With One Exception, USCIS Did Not Abuse Its
Discretion In Determining That HBSI Failed to
“Demonstrate That It Normally Requires a Degree
or Its Equivalent In a Specific Specialty For the
Position”
In the RFE, USCIS informed HBSI of the types of evidence
that could be submitted to satisfy this criterion: (1) an
organizational chart containing educational and experience
requirements for the position; (2) copies of present and past
job announcements showing the educational requirements; (3)
documentary evidence of past employment practices for the
position, including (a) a list of the number of employees hired
in the past two years for the position; (b) copies of employment
or pay records for past and present employees in this position;
(c) copies of degrees and/or transcripts to verify the education
and field of study for each individual hired for the past two
years as well as evidence to establish the duties performed; and
(4) documentation listing the educational, experience, training
and skills requirements of the offered position such as official
34
position descriptions, job offer letters, or job postings. AR,
ECF No. 23-1 at 31-32.
In response to the RFE, HBSI provided three types of
evidence. The first was an undated spreadsheet listing: (1) 11
“active” Application Analysts, each of whom had either a
bachelor or master’s degree in degree in information science,
information technology, computer engineering, or computer
science; (2) three Application Analysts not listed as “Active”
for whom educational information was not provided; (3) one
Application Analyst not listed as “Active” with a master’s
degree in applied statistics; and (4) eight Application Analysts
who were the beneficiaries of the April 2018 petitions. AR, ECF
No. 23-1 at 106. The second was copies of educational records
for: (1) the analyst with the degree in applied statistics; and
(2) seven of the eight petition beneficiaries. Id. at 107-17.
The third was a letter from HBSI’s Human Resources (“HR”)
Manager stating that HBSI “has a standard practice of hiring
individuals with a Bachelor’s degree or higher in Computer
Science or closely related fields.” Id. at 119. The letter
listed 18 Application Analysts, 14 of whom are designated as
“Active.” Id. Eleven of these Application Analysts are also
listed on the spreadsheet. Compare id., with AR, ECF No. 23-1 at
106.
USCIS determined that the evidence provided
35
“do[es] not show that you ‘normally’ require a bachelor’s
degree or higher or its equivalent in a specific specialty
because the documents do not show your requirements upon
hiring workers. You did not provide probative evidence such
as internal job descriptions or job postings to show that you
“normally” require a bachelor’s degree or higher or its
equivalent in a specific specialty for the proffered
position.”
Id. at 11.
HBSI argues that “the evidence shows that [it] always
requires a degree in computer science for its computer systems
analysts.” Pl’s MSJ, ECF No. 18-1 at 30. USCIS responds that the
Agency “acted well within its discretion in finding that HBSI
failed to carry its evidentiary burden on [this] criterion
because: (1) the fact that the beneficiaries of HBSI’s eight
2018 petitions have master’s degrees in computer science “does
not constitute evidence” to satisfy this criterion, Def.’s XMSJ,
ECF No. 19-1 at 35; (2) the “unsupported and conclusory
statement from the HR manager . . . has little, if any probative
value,” id. at 36; (3) even though USCIS “effectively conceded
that most of the employees whose educational information the
company provided appeared to have bachelor’s degrees or higher
in computer science, computer information systems, information
technology, or closely related degrees in the field,” this does
not satisfy the requirement because HBSI’s failure to “provide
probative evidence, such as internal job descriptions, or job
postings,” meant that it did not “show that [HBSI] ‘normally’
36
require[s] a bachelor’s degree or higher or its equivalent in a
specific specialty for the proffered position,” id. at 37
(citing AR); and (4) assuming that the Application Analyst
position does have a degree requirement, HBSI did not
demonstrate that a degree was in fact required for the position,
id. at 37.
Except for one decision, the Court is satisfied that USCIS
did not abuse its discretion when it determined that HBSI failed
to demonstrate that it normally requires a degree or its
equivalent in a specific specialty for the position. HBSI’s
argument that “the evidence shows that [it] always requires a
degree in computer science for its computer systems analysts,”
Pl’s MSJ, ECF No. 18-1 at 30; is unpersuasive. First, the
evidence that all eight of the petition beneficiaries have
master’s degrees in computer science is not probative because it
does not demonstrate a past practice. See Innova Solutions, Inc.
v. Baran, 338 F. Supp. 3d 1009, 1024 (N.D. Ca. 2018) (finding
that “USCIS articulated a rational and ample basis for its
decision” when the employer failed to demonstrate that it had,
in the past, required relevant employees to have certain
degrees); Palace Wine & Spirits, Inc. v. USCIS, Civ. A. No. 11-
0402, 2012 WL 19-1331, at 3 (D. Minn. May 25, 2012) (finding no
abuse of discretion when USICS determined that this criterion
had not been met based on the employer’s prior hiring history
37
for the position). HBSI does not attempt to distinguish the
persuasive authority relied on by USCIS. See Pl.’s Opp’n, ECF
No. 21 at 15-16. Second, all the spreadsheet demonstrates is
that each of the 11 “Active” Applications Analysts on the list
have a bachelor’s degree or higher in computer science, computer
information systems, information technology, or closely related
degrees in the field. The spreadsheet is undated and there is no
information about the hiring date of any of the Active analysts.
See AR, ECF No. 23-1 at 106. Third, other than the spreadsheet
and one of the educational records, HBSI did not submit any
evidence regarding its past practices to corroborate the
information in the HR Manager’s letter. HBSI was provided with
detailed guidance about the types of evidence that would enable
it to satisfy this criterion, but it failed to do so.
Accordingly, it was not arbitrary, capricious, or an abuse of
discretion for USCIS to determine that HBIS failed to meet its
burden on this criterion.
The Court finds, however, that USCIS did abuse its
discretion with regard to the decision on the petition on behalf
of Mr. Pandya. USCIS provided the following rationale for HBSI’s
failure to satisfy this criterion:
You provided documentation of your Computer-
related employees and evidence of their degree
educational backgrounds. However, the
evidence that you submitted are for the
38
employees in a different positions [sic] all
together.
AR, ECF No. 23-7 at 7. However, the evidence submitted for Mr.
Pandya is the same as that submitted for the other beneficiaries
–specifically for Application Analysts. See AR, ECF No. 23-7 at
93. Accordingly, the determination for Mr. Pandya will be
remanded to USCIS to make a new determination consistent with
this Memorandum Opinion.
4. USCIS Did Not Abuse Its Discretion In
Determining That HBSI Failed to Demonstrate That
”The Nature of the Specific Duties Are So
Specialized And Complex That Knowledge Required
to Perform the Duties is Usually Associated With
the Attainment of a Baccalaureate or Higher
Degree”
In the RFE, USCIS informed HBSI of the types of evidence
that could be submitted to satisfy this criterion. Two
categories of evidence are identical to the evidence listed for
§ 214.2(h)(4)(iii)(A), and in addition, HBSI was informed that
it could explain, among other things, how the nature of the
duties “are so specialized and complex, that they are usually
associated with the attainment of a bachelor’s degree or higher
in a specific field of study.” AR, ECF No. 23-1 at 32. In
response, HBSI provided a narrative in which it asserted that
“the specific duties are indeed specialized and complex [such]
that the knowledge required to perform [them] is usually
39
associated with the attainment of a baccalaureate or higher
degree.” AR, ECF No. 23-1 at 50.
USCIS determined that HBSI had not met its burden because
it failed to demonstrate that: (1) “the relative specialization
. . . as an aspect of the position”; (2) “how the duties of the
proffered position elevate [it] to a specialty position”; (3)
the “duties were described in generalized and abstract terms”
insufficient to show that they “are so specialized and complex
that that the knowledge required to perform [them] is usually
associated with the attainment of a bachelor’s degree or its
equivalent in a specific specialty”; (4) “[i]t appears that the
beneficiary will perform the normal duties of a computer systems
analyst without any additional specialization or complexity that
is usually associated with the attainment of a bachelor’s degree
or higher”; and (5) the designation of the position at Wage
Level 1 is the lowest level as compared with other positions in
the occupation. AR, ECF No. 23-1 at 12.
Similar to the Court’s analysis of the second prong of §
214.2(h)(4)(iii)(A), here, USCIS’s analysis of the evidence
submitted was reasonable. HBSI asserted that the job duties were
so complex and specialized that they are usually associated with
a degree but failed to explain why. HBSI’s only argument is to
point to its analysis of the second criterion, which the Court
has already rejected. Accordingly, it was not arbitrary,
40
capricious, or an abuse of discretion for USCIS to determine
that HBSI failed to meet its burden on this criterion.
V. Conclusion
For the foregoing reasons, HBSI’s motion for summary judgment
is GRANTED IN PART AND DENIED IN PART and USCIS’s cross motion
for summary judgment is GRANTED IN PART AND DENIED IN PART. The
Court REMANDS this matter to USCIS for further proceedings
consistent with this Memorandum Opinion. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 20, 2021
41