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affirming USCIS's denial where "no documentary evidence was presented to show that the specialized knowledge specific to Plaintiff was necessary to perform the work."
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Case No. CV 18-06786 AB (RAOx)
02-20-2020
IMPETUS TECHNOLOGIES, INC., Plaintiffs, v. Kathy A. BARAN, Director of California Service Center, U.S. Citizenship and Immigration Services, Defendant.
David M. Sturman, Jonathan Roger Sturman, David M. Sturman Law Offices, Encino, CA, for Plaintiffs. Jessica Dawgert, US Department of Justice, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendant.
David M. Sturman, Jonathan Roger Sturman, David M. Sturman Law Offices, Encino, CA, for Plaintiffs.
Jessica Dawgert, US Department of Justice, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT FOR DEFENDANT [Dkt. No. 25]
HONORABLE ANDRÉ BIROTTE JR., UNITED STATES DISTRICT COURT JUDGE Before the Court is Plaintiff Impetus Technologies, Inc.'s ("Plaintiff") Motion for Summary Judgment ("Motion," Dkt. No. 25). Defendant Kathy A. Baran, Director of the California Service Center, U.S. Citizenship and Immigration Services ("Defendant") filed an opposition in which she also seeks summary judgment. Plaintiff filed a reply. The Court heard oral argument on August 2, 2019. For the following reasons, Plaintiff's Motion is DENIED and summary judgment is GRANTED in favor of Defendant.
I. BACKGROUND
Plaintiff filed this action to challenge Defendant's denial of Form I-129 Petitions that it filed on behalf of four of its employees ("Beneficiaries"). Plaintiff filed the petitions seeking to classify the Beneficiaries as L-1B nonimmigrant workers pursuant to 8 U.S.C. § 1101(a)(15)(L). Defendant denied all of the petitions on the ground that the Beneficiaries did not have specialized knowledge within the meaning of the Immigration Act or its regulations. Plaintiff alleges that Defendant's denials were arbitrary, capricious, an abuse of discretion, and contrary to law and therefore violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 706. In the First Amended Complaint ("FAC," Dkt. No. 11), Plaintiff seeks declarations that Defendant's four denials violate the APA, and an order ordering Defendant to approve the petitions.
By this Motion, Plaintiff seeks to adjudicate its claim on behalf of one of the Beneficiaries, Vijaypal Singh ("Mr. Singh"). The Administrative Record ("A.R.," Dkt. No. 22) pertaining to Mr. Singh's claim, which includes Defendant's denial of Mr. Singh's visa petition ("Decision," AR 4-14) was filed under seal.
II. LEGAL FRAMEWORK
A. Standard of Review Under the APA
Under the APA, a court must overturn an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," or if its factual findings are unsupported by substantial evidence. Love Korean Church v. Chertoff , 549 F.3d 749, 754 (9th Cir. 2008) ; 5 U.S.C. § 706(2)(A). This standard of review is " ‘highly deferential [and] presum[es] the agency action to be valid.’ " Cal. Wilderness Coalition v. U.S. Dept. of Energy , 631 F.3d 1072, 1084 (9th Cir. 2011) (quoting Northwest Ecosystem Alliance v. United States Fish and Wildlife Services , 475 F.3d 1136, 1140 (9th Cir. 2007) ). A Court "may not substitute [its] judgment for that of the agency," but instead must "affirm the agency action if a reasonable basis exists for its decision." Id. The Court's "task is simply to ensure that the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made." Id. ; see Ursack, Inc. v. Sierra Interagency Black Bear Grp. , 639 F.3d 949, 956 (9th Cir. 2011) (An "agency action will not be reversed as arbitrary and capricious where the agency is able to demonstrate a ‘rational connection between the facts found and the conclusions made.’ ") (quoting Native Ecosystems Council v. United States Forest Service , 418 F.3d 953, 960 (9th Cir. 2005) ). "[R]eview is especially deferential in the context of immigration policy." Jang v. Reno , 113 F.3d 1074, 1077 (9th Cir. 1997).
A district court may resolve by summary judgment a challenge to a final agency decision under the APA. see Occidental Engineering Co. v. INS , 753 F.2d 766, 770 (9th Cir. 1985) ("[S]ummary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did."). Because a district court "is not required to resolve any facts in review of an administrative proceeding," id. at 769, "summary judgment becomes 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.’ " San Luis & Delta-Mendota Water Auth. v. Salazar , 760 F. Supp. 2d 855, 868 (E.D. Cal. 2010) (quoting Sierra Club v. Mainella , 459 F. Supp. 2d 76, 90 (D.D.C. 2006) ). Thus, "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." Occidental , 753 F.2d at 769 ; accord Northwest Ecosystem Alliance , 475 F.3d at 1140 (the Court's "task is simply to ensure that the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made.") (marks and citations omitted).
B. Standard for Granting an L-1B Visa
Under the Immigration and Nationality Act ("INA"), a multinational employer may seek a nonimmigrant visa to transfer an employee from overseas operations to the United States. See 8 U.S.C. § 1101(a)(15)(L) ; Brazil Quality Stones, Inc. v. Chertoff , 531 F.3d 1063, 1066 (9th Cir. 2008). A nonimmigrant visa sought or obtained for an employee "whose work entails specialized knowledge is commonly referred to as an L-1B visa." Fogo De Chao (Holdings) Inc. v. United States Dep't of Homeland Security , 769 F.3d 1127, 1130 (D.C. Cir. 25 2014). The INA requires the beneficiary employee to have been "employed by the entity sponsoring his or her petition for a continuous period of at least one year within the three years preceding the petition," Brazil Quality Stones , 531 F.3d at 1066, and the petitioning employer must demonstrate that the employee "seeks to enter the United States to continue working for that employer (or an affiliate) ‘in a capacity that is managerial, executive, or involves specialized knowledge.’ " Fogo De Chao , 769 F.3d at 1130 (citing 8 U.S.C. § 1101(a)(15)(L) ); see August 2015 USCIS Policy Memo Regarding L-1B adjudications Policy, PM-602-0111 (2015) ("2015 Policy Memo") (requiring both the U.S. position to involve specialized knowledge and the beneficiary himself "to possess such knowledge").
An employer may seek an L-1B visa for a beneficiary employee who will provide specialized knowledge for that employer even if the employee will be stationed at "the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent" company provided that the employee will not "be controlled and supervised principally by such unaffiliated employer[,]" and that employee's "placement ... at the worksite of the unaffiliated employer is [not] an arrangement to provide labor-for-hire for the unaffiliated employer," but instead "placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary." 8 U.S.C. 18 § 1184(c)(2)(F).
III. UNDISPUTED FACTS
The following facts are undisputed. Plaintiff is a global technologies company headquartered in Los Gatos, California. Plaintiff operates worldwide in conjunction with its subsidiary entity Impetus Infotech India Pvt. Ltd. (SUF 1.) Plaintiff's business model consists of developing proprietary Big Data technology for mining and analyzing massive volumes of data, and licensing this technology to large corporate enterprises. (SUF 2; AR 41-44.) Plaintiff's Indian subsidiary, Impetus Infotech India Pvt. Ltd., employed Vijaypal Singh between 2010 to 2015. (SUF 3.) Sometime before June 2015, USCUS approved a blanket L-1 petition to Plaintiff to allow it to streamline the transfer of multiple employees to work in the United States. (AR 65, 74.) Thereafter, under the purview of the approved blanket petition, on June 30, 2015, the State Department adjudicated and granted Plaintiff's Form I-129 request for an L-1B visa for Mr. Singh. (SUF 4; AR 65-68, 74, 86.)
On March 22, 2018, Plaintiff filed an I-129 petition with Defendant requesting an extension of Mr. Singh's L-1B status. The petition was filed without change, meaning that Plaintiff sought an extension without change as to the nature of Mr. Singh's employment. Plaintiff's filing was accompanied by a 13-page cover letter (AR 41-53) setting forth the basis of eligibility and 250 pages of supporting documentation. (SUF 5.) The letter explained that Mr. Singh is a Technical Architect for Plaintiff, and that he had specialized knowledge regarding Plaintiff's proprietary Big Data Analytics technologies such as StreamAnalytics, Jumbune, at Kyvos. (AR 44.) The letter also explained that Mr. Singh was assigned to the American Express account and described the kind of Big Data word he did there. (AR 45-52.)
On March 29, 2018, Defendant issued a Request for Evidence ("RFE") seeking additional documentation and information deemed necessary to the adjudication of Plaintiff's I-129 petition. (SUF 6; RFE at AR 638-644.) On June 21, 2018, Plaintiff timely responded to the RFE by submitting a 21-page explanation (AR 318-338) and about 300 pages of supporting documentation. (SUF 7.) On July 3, 2018, Defendant denied Plaintiff's I-129 petition filed on behalf of Mr. Singh. (SUF 8; "Decision," at AR 4-14.) Defendant denied the petition on the ground that Plaintiff failed to establish 3 elements needed to prove Mr. Singh was eligible for an L-1B visa: 1) that Mr. Singh had been employed abroad with Plaintiff's company for at least one continuous year in a position that was managerial, executive, or involved specialized knowledge; 2) that Mr. Singh's proposed position in the United States involved specialized knowledge; and 3) that Mr. Singh's employment at American Express's worksite was to provide a service involving Mr. Singh's alleged specialized knowledge rather than as labor-for-hire. (AR 4-16.)
IV. DISCUSSION
Plaintiff attacks Defendant's Decision on several grounds but they are not supported by the record.
A. Neither of Plaintiff's Overarching Objections to the Decision Has Merit.
Plaintiff's first overarching argument is that Defendant's denial of the I-129 petition for Mr. Singh is inconsistent with the June 2015 decision approving Mr. Singh's L-1B visa, and that because Defendant did not explain why it departed from the prior decision, the denial is arbitrary and capricious.
But Defendant responds that USCIS did not previously assess Mr. Singh's eligibility for an L-1B visa. Rather, it was the Department of State that evaluated and granted Mr. Singh's initial visa, and it did so subject to the Blanket Petition granted to Plaintiff. See AR 215 (approval of Blanket Petition); AR 65 (approval of I-129S Petition for Mr. Singh based on Blanket Petition, bearing approval stamp from U.S. Consulate).
Defendant's position is borne out by the documents themselves and by the Department of State handbook, which advises State personnel that "[s]ince the individual beneficiaries of blanket petitions are not named in the petition, their eligibility for L status is not examined by DHS. Consequently, you ... are responsible for verifying the qualifications of alien applicants for L classification in blanket petition cases." Processing Blanket L Petitions , 9 FAM 402.12-8(C)(b) (available at https://fam.state.gov/FAM/09FAM/09FAM040212.html). Thus, because Defendant did not grant Mr. Singh's previous visa, it did not previously determine whether Mr. Singh was a specialized knowledge employee, so Defendant has not changed its position.
Secondly, Plaintiff characterizes the Decision as consisting of little more than boilerplate and that it is devoid of any substantive discussion of the evidence. But a review of the Decision (AR 4-14) belies this criticism. The Decision addresses each of the three grounds for denial in a separate section, each of which recites at length the law and regulations applicable to the given element, describes the evidence in Plaintiff's initial filing, describes Defendant's request for additional information relevant to that element, describes the additional evidence Plaintiff provided, and then explains why the documentation Plaintiff provided failed to establish the given element. The Court therefore rejects Plaintiff's characterization that the Decision is largely boilerplate devoid of substantive analysis.
B. Defendant's Decision Is Supported By The Record.
If only one of the three bases upon which Defendant denied the petition satisfies the APA, the Decision must be sustained. See Braintree Electric Light Dep't v. Federal Energy Regulatory Commission , 667 F.3d 1284, 1293 n.8 (D.C. Cir. 2012) ("When an agency offers multiple grounds for a decision, we will affirm the agency so long as any one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that basis if the alternative grounds were unavailable.")
Here, the Court has reviewed the Decision and its reasoning in light of the materials before Defendant, and finds that the evidence in the administrative record permitted the Defendant to make the decision it did. The Court will focus only the third basis for the Decision: that Plaintiff failed to establish that Mr. Singh's employment off-site at Plaintiff's client American Express was to provide a service involving Mr. Singh's alleged specialized knowledge, rather than as labor-for-hire.
A beneficiary is ineligible for L-1B classification if "(i) the alien will be controlled and supervised principally by such unaffiliated employer; or (ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary." 8 U.S.C. § 1184(c)(2)(F)(i), (ii). Here, Plaintiff was stationed at the worksite of one of Plaintiff's clients, American Express, see Cover Letter (AR 47-52), so this section is in issue.
Plaintiff's original Cover Letter describes Plaintiff's work on data mining and Big Data analytics projects off-site for American Express, and explains Mr. Singh's work for American Express. (AR 45-52.) In the RFE, Defendant requested additional information regarding Mr. Singh's eligibility for an L-visa given that he would be placed off-site at an unaffiliated entity. (AR 643-644.) The RFE stated that Plaintiff did not submit any evidence to establish that Mr. Singh would be principally under the control and supervision of Plaintiff, and that he would be using his specialized knowledge in that off-site placement and would not be labor-for-hire. Thus, Defendant sought additional information to determine whether either 8 U.S.C. § 1184(c)(2)(F)(i) or (ii) rendered Mr. Singh ineligible. Regarding the specialized knowledge-labor-for-hire provision, § 1184(c)(2)(F)(ii), Defendant advised that Plaintiff could submit a detailed description of Mr. Singh's specific job duties at the unaffiliated employer's site, and "a detailed explanation, in layman's terms, of exactly what product or service the petitioning organization would be providing to the unaffiliated employer, and why the activities the beneficiary will perform are not just labor for hire." (AR 643-644.)
In response, Plaintiff submitted a Cover Letter (Response Cover Letter, AR 318-338) and the Master Service Agreement and amendment ("MSA," AR 504-530) between itself and American Express concerning the services Plaintiff would provide to American Express. Notably, while the Cover Letter explained why Mr. Singh would be controlled by Plaintiff, it did not specifically address the second issue—why the services would not be just labor for hire. Instead, it appears that Plaintiff conflated § 1184(c)(2)(F)(i) and (ii), rather than treating them as raising independent issues requiring separate analyses. Accordingly, because Plaintiff failed to respond to the labor-for-hire issue Defendant's RFE raised, Plaintiff in effect waived this argument.
The Decision found that Plaintiff's evidence did establish that Mr. Singh would be controlled and supervised principally by Plaintiff. However, the Decision also found that Plaintiff's evidence did not establish that Mr. Singh's placement was in connection with specialized knowledge specific to Plaintiff. (AR 21-23.) As stated above, Plaintiff's Response to the RFE did not address this specific concern but instead lumped it together with the question of who would principally control Mr. Singh. The Decision noted that the MSA did not specify that specialized knowledge is required for the contracted-for services, nor did the MSA specifically request Mr. Singh's services. The Decision also stated that no documentary evidence was presented to show that the specialized knowledge specific to Plaintiff was necessary to perform the work on the end-client project. (AR 22-23.) Accordingly, the Decision found that Plaintiff failed to show that Mr. Singh was not ineligible under § 1184(c)(2)(F)(ii).
In his opening memorandum, Plaintiff asserts that the Defendant's conclusions are unsupported. However, Plaintiff does not point to specific evidence from the record establishing that Mr. Singh would use specialized knowledge at American Express and was not labor-for-hire. Plaintiff simply argues, in essence, that Plaintiff's business of providing Big Data Analytics software such as StreamAnalytics requires ongoing support and collaboration with the end client, who relies on Plaintiff to provide the "operators" to fully utilize the software. See Mot. 26:7-27:24. However, this is argument not evidence, so it does not satisfy Plaintiff's burden.
The Court has reviewed Plaintiff's original cover letter. It describes Plaintiff's work on data mining and Big Data analytics projects for American Express, and explains Mr. Singh's work for American Express. (AR 45-52.) But many of the tasks described seem like more generalized information technology development. For example, Mr. Singh was described as being "instrumental in developing, maintaining and improving [American Express's] security and fraud prevention protocols and maintaining the central repository for all of American Express's enterprise data." (AR 48.) The letter then describes Mr. Singh's involvement in a project referred to as Enterprise Data Lake, and his application of certain of Plaintiff's software to the data (AR 49-52), but it is not clear that Mr. Singh's ongoing role would be beyond IT support and would require specialized knowledge. Hence, Defendant justifiably issued an RFE advising Plaintiff to explain "in layman's terms, of exactly what product or service the petitioning organization would be providing to the unaffiliated employer, and why the activities the beneficiary will perform are not just labor for hire." (AR 643-644.) As noted above, Plaintiff wholly failed to address this element in the response to the RFE, and seemed to conflate 8 U.S.C. § 1184(c)(2)(F)(i) (principal control) and 8 U.S.C. § 1184(c)(2)(F)(ii) (labor-for-hire). Accordingly, Defendant's determination that Plaintiff did not establish that Mr. Singh was not rendered ineligible by 8 U.S.C. § 1184(c)(2)(F)(ii) is supported by the record. Thus, Defendant's Decision is not arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with the law, and must therefore be sustained.
V. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff's Motion for Summary Judgment (Dkt. No. 25) and GRANTS summary judgment for Defendant.