Altimetrik Corp v. USCIS

Filing 20

OPINION and ORDER Denying 14 MOTION for Summary Judgment - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALTIMETRIK CORP.,

Case No. 18-10116

Plaintiff,

Honorable Nancy G. Edmunds

v.
L. FRANCIS CISSNA, Director,
U.S. Citizenship and Immigration
Services,
Defendant.
________________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [14]
Plaintiff Altimetrik Corporation (“Plaintiff”) filed this lawsuit pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. § 702, against Defendant L. Francis
Cissna as Director of the United States Citizenship and Immigration Services (“USCIS”).
Plaintiff seeks judicial review of USCIS’s decision to deny two petitions for an H-1B visa
it had filed on behalf of its employees, Mr. Madhuranthakum and Mr. Garlapati. The
matter is now before the Court on Plaintiff’s motion for summary judgment. (Dkt. 14.)
For the reasons discussed below, the Court DENIES Plaintiff’s motion and upholds the
USCIS’s denials.
I.

Background
Plaintiff is “an information technology ‘professional services’ organization,

specializing in IT project management and solutions.” (Dkt. 11-1, Pg ID 155.) Plaintiff
originally filed this lawsuit on January 10, 2018, seeking review of the denials of an H1B visa for five of its employees. (Dkt. 1.) On June 22, 2018, Plaintiff filed an amended
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complaint, voluntarily dismissing three of those claims. (Dkt. 7.) Thus, only the
petitions filed for Mr. Madhuranthakum and Mr. Garlapati remain relevant.
Plaintiff filed its petition on behalf of Mr. Madhuranthakum on September 13,
2017. (Dkt. 11-2, Pg ID 646-65.) He was employed by Plaintiff and had a valid H-1B
visa at the time but a new work location prompted the petition.1 (Id. at Pg ID 563.) In
support of the current petition seeking to employ him as a software developer working at
the Ford Accelerated Solutions Center, Plaintiff submitted purchase orders between
itself and Ford, a copy of a service agreement between itself and Ford, and information
about Plaintiff. (See id. at Pg ID 667.) Plaintiff also included a description of the
beneficiary’s duties on form I-129. (Id. at Pg ID 653.)
USCIS issued a request for evidence on October 27, 2017, requesting further
information regarding the employer-employee relationship and whether the position
qualified as a specialty occupation. (Id. at Pg ID 667-74.) Plaintiff submitted purchase
orders to document the relationship between Plaintiff and Ford, a statement of work
between the two for their current project, an employment agreement, pay stubs, a
performance review, and an organizational chart showing the beneficiary’s supervisory
chain. (See id. at Pg ID 675.) On December 28, 2017, USCIS denied the petition,
concluding that the position did not qualify as a specialty occupation and that Plaintiff
had failed to demonstrate that it would have an employer-employee relationship with Mr.
Madhuranthakam. (Id. at Pg ID 522-34.)

1

In fact, USCIS had approved a H-1B visa for Mr. Madhuranthakum twice in the
past. (Dkt. 8, Pg ID 49.)
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On March 29, 2018, after the filing of this lawsuit, USCIS reopened the petition to
provide Plaintiff an additional opportunity to satisfy its burden of proof regarding the
application. It issued a notice of intent to deny, requesting additional documentation to
address the reasons for denial. (Id. at Pg ID 510-20.) Plaintiff submitted copies of
agreements between itself and Ford, a statement of work showing the extension of a
project to December 2018, and invoices Plaintiff issued to Ford for IT services. (Id. at
Pg ID 439-507.) USCIS again denied the petition, finding that the software developer
position did not qualify as a specialty occupation and that the evidence was insufficient
to demonstrate that specialty occupation work was available with Ford for the entire
requested period. (Id. at Pg ID 417-27.)
Plaintiff filed its petition for a H-1B visa on behalf of Mr. Garlapati on July 25,
2017. (Dkt. 11-1, Pg ID 380-99.) He too had a valid H-1B visa at the time but was
working for a different employer. (Id. at Pg ID 369.) Plaintff sought to employ him as a
senior software engineer working at Silicon Valley Bank (“SVB”). (Id. at Pg ID 387.)
Plaintiff included along with its petition promotional materials, an employment
agreement, a contract between SVB and Plaintiff, and degrees and transcripts for Mr.
Garlapati. (See id. at Pg ID 262.)
On October 24, 2017, USCIS issued a request for evidence, requesting
additional evidence regarding the employer-employee relationship and whether the
position qualified as a specialty occupation. (Id. at Pg ID 230-34.) Plaintiff responded
by submitting a position description letter, an affidavit concerning Plaintiff’s hiring
practices for similar positions, a statement of work between SVB and Plaintiff, a
performance review, an organizational chart, and pay stubs. (Id. at Pg ID 150-227.) On

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December 15, 2017, USCIS denied the petition, finding that the senior software
engineer position did not qualify as a specialty occupation. (Id. at Pg ID 136-43.)
On March 29, 2018, after the filing of this suit, USCIS re-opened the petition and
issued a notice of intent to deny. The notice identified deficiencies in the petition
relating to the issues of whether the position was a specialty occupation and whether
there was going to be an employer-employee relationship. (Id. at Pg ID 123-33.)
Plaintiff responded by submitting a letter from its attorney and a letter from a
representative of SVB. (Id. at Pg ID 115-20.) On June 1, 2018, USCIS denied the
petition, finding that Plaintiff failed to satisfy its burden of proof regarding whether the
position was a specialty occupation and whether the beneficiary would be performing
services in a specialty occuatpion for the requested period. (Dkt. 16-1, Pg ID 772-83.)
Plaintiff filed its motion for summary judgment on September 22, 2018.2 (Dkt.
14.) USCIS filed a response to Plaintiff’s motion and Plaintiff filed a reply. (Dkts. 16,
18.) The Court heard oral arguments on the motion on December 12, 2018.
II.

Standard of Review
When a federal court is reviewing final agency action, the usual rules and

standards governing summary judgment do not apply. See Alexander v. Merit Sys.
Prot. Bd., 165 F.3d 474, 480-81 (6th Cir. 1999); Integrity Gymnastics & Pure Power
Cheerleading, LLC v. U.S. Citizenship & Immigration Servs., 131 F. Supp. 3d 721, 725
(S.D. Ohio 2015). Summary judgment simply “‘serves as the mechanism for deciding,
as a matter of law, whether an agency action is supported by the administrative record

2

Because both denials were based on the same grounds and used the same
reasoning, the parties addressed them together in their briefs.
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and is otherwise consistent with the APA standard of review.’” Singh v. Johnson, No.
15-cv-12957, 2016 U.S. Dist. LEXIS 82890, at *7 (E.D. Mich. June 27, 2016) (quoting
Resolute Forest Prods., Inc. v. U.S. Dep’t of Agric., 187 F. Supp. 3d 100, 106 (D.D.C.
2016)).
Under the APA, the federal courts may “hold unlawful and set aside agency
action, findings, and conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also
Simms v. Nat’l Highway Traffic Safety Admin., 45 F.3d 999, 1003 (6th Cir. 1995). In
reviewing agency action under this narrow standard, the reviewing court may not
substitute its judgment for that of the agency even if the court may disagree with the
agency’s decision. Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989);
Simms, 45 F.3d at 1003.
The reviewing court must base its review on the administrative record and may
not consider any new evidence. Alexander, 165 F.3d at 481. The agency action may
be reversed only
if the agency has 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 of the product of agency expertise.
Simms, 45 F.3d at 1004 (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
An agency’s factual findings are reviewed under the substantial evidence
standard. See Steeltech, Ltd. V. U.S. Envtl. Prot. Agency, 273 F.3d 652, 657 (6th Cir.
2001). Under this standard, review of an agency’s “factual determinations is limited to

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determining whether those determinations are supported by substantial evidence on the
record as a whole -- not whether there was substantial evidence in the record for a
result other than that arrived at by the [agency].” Id. In the immigration context, a
particular agency finding “can be reversed only if a reasonable factfinder would have to
reach another conclusion,” in other words “if the evidence compels a conclusion other
than the one the agency reached.” Smith v. Chater, 99 F.3d 780, 782 n.3 (6th Cir.
1996) (citing Immigration and Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481
(1992)).
III.

Analysis
A.

Applicable Law and Regulations

The H-1B employment visa permits a non-immigrant to be admitted into the
United States “to perform services . . . in a specialty occupation described in section
[1184(i)(1)].” 8 U.S.C. § 1101(a)(15)(H)(i)(b). In order to qualify for a H-1B visa, “the
petitioning employer and the alien beneficiary must satisfy a two-prong test: ‘(1) the
position that the alien seeks to occupy must qualify as a specialty occupation; and (2)
the alien must herself be qualified to perform services in said occupation.’” EG Enters.
v. Dep’t of Homeland Sec., 467 F. Supp. 2d 728, 734 (E.D. Mich. 2006) (quoting Shanti,
Inc. v. Reno, 36 F. Supp. 2d 1151, 1153 (D. Minn. 1999)). The burden of proof is on the
employer and the non-immigrant to prove both prongs of the test. Id. at 734 (citing 8
U.S.C. § 1361).
A “specialty occupation” is one requiring “(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

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occupation in the United States.” 8 U.S.C. § 1184(i)(1). The Code of Federal
Regulations further states that a
specialty occupation means 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). Because this list is non-exhaustive, USCIS has set forth four
criteria, one of which a position must satisfy to qualify as a “specialty occupation:”
(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 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).
B.

Whether the Positions are Specialty Occupations

There is no dispute that the two beneficiaries are qualified to perform services in
a “specialty occupation” because they hold a foreign degree equivalent to a United
States baccalaureate or higher degree from an accredited college or university.
Instead, the issue is whether the positions offered by Plaintiff qualify as “specialty
occupations” under the applicable rules and regulations. Thus, only the first prong of
the two-prong test is at issue here.
The Court first notes that while all four criteria in 8 C.F.R. § 214.2(h)(4)(iii)(A)
refer to a “baccalaureate or higher degree” or the “degree requirement,” USCIS requires
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that the degree be “in a specific specialty” due to 8 C.F.R. § 214.2(h)(4)(ii), which states
that a specialty occupation “requires the attainment of a bachelor’s degree or higher in a
specific specialty, or its equivalent.” The “specific specialty” language is also found in
the statute. See 8 U.S.C. § 1184(i)(1)(B). Many of Plaintiff’s arguments boil down to its
objection to this requirement. However, courts have found requiring that the bachelor’s
degree be in a specific specialty “well-settled in the case law and USCIS’s reasonable
interpretations of the regulatory framework.” Chung Song Ja Corp v. U.S. Citizenship &
Immigration Servs., 96 F. Supp. 3d 1191, 1197 (W.D. Wash. 2015); see also CareMax
Inc. v. Holder, 40 F. Supp. 3d 1182, 1187 (N.D. Cal. 2014) (noting that this requirement
is consistent with the purpose of the H-1B visa, which is “to reach outside the U.S. to fill
a temporary position because of a special need, presumably one that cannot be easily
fulfilled within the U.S.”). The Court therefore agrees that a generalized bachelor’s
degree requirement is not a sufficient basis for a H-1B visa. Having established that
USCIS did not err when it required the bachelor’s degree requirement be in a specific
specialty, the Court will turn to USCIS’s application of the regulatory framework.
The first regulatory criterion states that a position qualifies as a specialty
occupation if “[a] baccalaureate or higher degree or its equivalent is normally the
minimum requirement for entry into the particular position.” 8 C.F.R. §
214.2(h)(4)(iii)(A). In making a determination as to whether a particular position
requires a bachelor’s degree in a specific specialty, USCIS relies on the United States
Department of Labor’s Occupational Outlook Handbook (“the Handbook”). See Royal
Siam Corp. v. Chertoff, 484 F.3d 139, 146 (1st Cir. 2007) (“the choice of what reference
materials to consult is quintessentially within an agency’s discretion – and, thus, courts

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routinely have approved [US]CIS’s practice of consulting the Handbook”). According to
the Handbook, software developers are required to have a bachelor’s degree in a
specific specialty. However, USCIS does not take the title of the position provided by
the petitioning employer at face value. See Fast Gear Distrib. v. Rodriguez, 116 F.
Supp. 3d 839, 846 (E.D. Mich. 2015) (noting that “USCIS considers the job duties of the
offered position along with the petitioning employer’s business operations to make a
determination if the position actually requires skills of someone with a bachelor’s
degree” in a specific specialty). Here, USCIS compared the list of duties provided by
Plaintiff with the description and list of duties set forth in the Handbook for a software
developer and found that they did not closely align. (See dkt. 11-2, Pg ID 419-22; dkt.
16-1, Pg ID 774-78.) Instead, USCIS found that the duties of the positions offered by
Plaintiff were more similar to that of a computer systems analyst.
Regarding the education required for a computer systems analyst, the Handbook
states the following, in relevant part: “[a] bachelor’s degree in a computer or information
science field is common, although not always a requirement. Some firms hire analysts
with business or liberal arts degrees who have skills in information technology or
computer programming.” (See dkt. 11-2, Pg ID 422.) As a result, USCIS concluded
that “the position of computer systems analyst is an occupation that does not require a
baccalaureate level of education in a specific specialty as a normal minimum for entry
into the occupation.” (Id. at Pg ID 423; dkt. 16-1, Pg ID 778.) USCIS therefore found
that Plaintiff did not satisfy its burden of proof with regard to the first criterion.
The second criterion states that a position qualifies as a specialty occupation if
“[t]he degree requirement is common to the industry in parallel positions among similar

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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.” 8
C.F.R. § 214.2(h)(4)(iii)(A). Regarding the first prong of this criterion, USCIS noted that
according to the Handbook, a systems analyst is not required to have a bachelor’s
degree in a specific specialty. Moreover, Plaintiff did not submit evidence from industryrelated professional associations or from other firms or individuals in the industry that
would go towards the issue of the degree requirement in the industry. (Dkt. 11-2, Pg ID
423; dkt. 16-1, Pg ID 779.) Regarding the second prong of the criterion, USCIS found
that the evidence did not demonstrate that the positions were so complex or unique that
they could only be performed by an individual with a degree in a specific specialty. (Dkt.
11-2, Pg ID 424; dkt. 16-1, Pg ID 779-80.)
The third criterion states that a position qualifies as a specialty occupation if “[t]he
employer normally requires a degree or its equivalent for the position.” 8 C.F.R. §
214.2(h)(4)(iii)(A). Regarding this standard, in the case of Mr. Madhuranktakam, USCIS
noted that Plaintiff did not submit evidence that it normally requires a degree in a
specific specialty for his position,3 (Dkt. 11-2, Pg ID 424.), and in the case of Mr.
Garlapati, USCIS noted that Plaintiff did not satisfy its burden of proof because it only
submitted educational and pay documents regarding 20 of the 70 employees it employs
as a software developer.4 USCIS also noted that according to Defensor v. Meissner,
201 F.3d 384, 388 (5th Cir. 2000), a petitioner is required to show that the entity

3

USCIS noted that Plaintiff itself had stated that it would hire someone with a
degree in a computer-related field or with a degree in engineering.
4
Some of those employees had degrees in business administration, information
technology, or engineering.  
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ultimately employing the beneficiary, and not the entity who hires the beneficiary,
requires a bachelor’s degree for its employees in that position. Here, the beneficiaries
were to be working off-site, at Ford and SVB. But Plaintiff did not submit evidence
regarding whether Ford and SVB normally required a degree or its equivalent in a
specific specialty for the position. (See dkt. 11-2, Pg ID 424; dkt. 16-1, Pg ID 780.)
The fourth criterion states that a position qualifies as a specialty occupation if
“[t]he nature of the specific duties are so specialized and complex that the 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). Again, USCIS relied on
its previous analysis regarding the job duties and found that Plaintiff did not establish
that the duties were so specialized and complex that they required a bachelor’s degree
in a specific specialty. (Dkt. 11-2, Pg ID 425; dkt. 16-1, Pg ID 780-81.)
Plaintiff responds by arguing that USCIS’s conclusions that the positions were
really that of a systems analyst and not a software developer were arbitrary and
capricious. However, the Court finds that USCIS carefully considered the proffered job
duties and found that the beneficiaries would be providing support to already existing
programs, similar to a computer systems analyst, and would not be designing,
developing, or building applications and/or systems, as would be expected from a
software developer or senior software engineer. (Dkt. 11-2, Pg ID 422; dkt. 16-1, Pg ID
778.) USCIS noted that statements from Plaintiff’s counsel that the beneficiaries would
be developing software did not suffice without additional corroborating evidence.
Plaintiff also argues that even if it sought to hire the beneficiaries as systems
analysts, they would still qualify for a H-1B visa because the Handbook states that

11 

“most computer systems analysts have a bachelor’s degree in a computer-related field.”
(Dkt. 11-2, Pg ID 422.) The Handbook, however, makes it clear that a degree in a
computer-related field is not required and “[s]ome firms hire analysts with business or
liberal arts degrees.” See id.; see also CareMax, 40 F. Supp. 3d at 1187-88 (stating
that “[a] position that requires applicants to have any bachelor’s degree, or a bachelor’s
degree in a large subset of fields, can hardly be considered specialized”). Thus, USCIS
is entitled to deference in its finding that systems analysts are not required to have a
bachelor’s degree in a specific specialty.
Plaintiff also argues that even though the beneficiaries would be working off-site,
Plaintiff is their employer. In addition, Plaintiff disagrees with USCIS’s reliance on
Defensor. Because USCIS also found that Plaintiff did not satisfy its burden of proof in
establishing that it normally requires a degree in a specific specialty for the positions at
issue, there is no need to address these arguments. Even if Plaintiff is the relevant
employer and the concerns in Defensor therefore inapplicable, Plaintiff did not present
sufficient evidence to satisfy its burden of proof with regard to the third criterion.
Because USCIS relied on the correct legal standards and regulations and
considered the evidence in the record, its findings are entitled to deference and the
Court will not substitute its judgment for that of the agency’s even if it disagrees with the
result.5 The Court therefore finds that USCIS’s findings that the positions did not qualify

5

The Court notes that USCIS had approved a H-1B visa for the same
beneficiairies performing services in the same positions in the past but denied the visas
this time. The denials will therefore create a disruption in the lives of two individuals
who have lived and worked in the United States for years. The Court concludes,
however, that under the applicable standard of review and with the current record, it
must defer to the agency.
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as specialty occupations based on the record before it were not arbitrary, capricious, or
an abuse of discretion.6
IV.

Conclusion
For the above-stated reasons, the Court DENIES Plaintiff’s motion for summary

judgment and upholds the USCIS’s denials.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: December 17, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on December 17, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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Because the Court upholds USCIS’s findings that Plaintiff did not demonstrate
that the positions were specialty occupations, there is no need to address USCIS’s
second finding regarding whether the beneficiaries would perform the services during
the requested period of employment.
The Court also notes that USCIS had relied on its findings regarding the
employer-employee relationship in its original denials, but these findings were not part
of the final decisions. Thus, there is also no need to address that issue.
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