Valorem Consulting Group LLC v. Johnson et al

Filing 38

ORDER AND OPINION (1) GRANTING DEFENDANTS' MOTION TO DISMISS AND (2) DENYING PLAINTIFF'S MOTION TO DISMISS. 27 , 33 Signed on 1/15/15 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
VALOREM CONSULTING GROUP,
Plaintiff,
vs.
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, LEON
RODRIGUEZ,1 Director, USCIS, and
JEH JOHNSON, Secretary of
Homeland Security,
Defendants.

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Case No. 13-1209-CV-W-ODS

ORDER AND OPINION (1) GRANTING DEFENDANTS’ MOTION TO DISMISS AND
(2) DENYING PLAINTIFF’S MOTION TO DISMISS
Pending are cross motions for summary judgment. For the following reasons,
Defendants’ motion (Doc. # 27) is granted and Plaintiff’s motion (Doc. # 33) is denied.

I. BACKGROUND
This case involves an H-1B visa granted by the United States Citizenship and
Immigration Services (“USCIS”). The visa was requested by Plaintiff on behalf of a nonimmigrant by the name of Amit Olkar. The specific issue to be reviewed is USCIS’s
decision to issue a visa that was valid for one year instead of the three years requested.
The issues in this case are best understood if the Court begins by setting forth the legal
framework from which they arise.
The Immigration and Nationality Act (“INA”) provides that a visa may be granted
to a non-immigrant alien “who is coming temporarily to the United States to perform
services . . . . in a specialty occupation . . . who meets the requirements for the
occupation” and for whom the “intending employer has filed . . . an application.” 8
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Leon Rodriguez is substituted as a Defendant in the place of Lori Scialabba
pursuant to Rule 25(d).

U.S.C. § 1101(a)(15)(H)(i)(b). There is no dispute that Plaintiff filed an application, that
Olkar was to work in a specialty occupation, or that Olkar was qualified to perform
services in that specialty occupation. The issue, as stated earlier, is the length of the
visa to be granted.
The only statutory guidance establishes that the H-1B visa may not exceed six
years. 8 U.S.C. § 1184(g)(4). By regulation, an H-1B visa “shall be valid for a period of
up to three years but may not exceed the validity period of the labor condition
application.” 8 C.F.R. § 214.2(h)(9)(iii). Given the connection between the visa and
employment in specialty occupation, and given that the H1-B application must be made
by the employer, USCIS evaluates the length of time the alien is going to work in that
specialty occupation for that employer. If the application and supporting materials
demonstrate that the employer/applicant is likely to employ the alien for more than three
years, or that the employment is open-ended without an anticipated termination date,
then the visa generally will be granted for the three years permitted by the regulation.
The employer can then seek to renew the visa by demonstrating the alien continues to
be employed in a specialty occupation. However, if the application and supporting
materials indicate that the employment is for less than three years, the visa generally
will be granted for the period of time the alien is going to work in a specialty occupation.
Fierro Declaration, ¶¶ 6-7, 9, 11; see also generally Neufeld Memorandum (describing
procedures when the employer/applicant places its employees at the sites of thirdparties). This approach and focus are consistent with the aforementioned statutes and
regulations (and the entire scheme surrounding H-1B visas) which allow the visa only to
the extent the alien is performing work in a specialty occupation.
With that background in place, the Court turns now to Plaintiff’s application and
the Certified Administrative Record (“CAR”) developed by USCIS.2 Plaintiff filed its
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The Court is reviewing an agency’s final decision, so its review is limited to the
materials presented by Plaintiff to USCIS in support of Olkar’s application. This means
the Court cannot consider much of the information contained in Justin Jackson’s
Declaration, wherein Jackson attempts to add factual information to the CAR in order to
further (or better) justify a three-year visa. In contrast, the Court can (and will) consider
Joseph Fierro’s Declaration because it does not add information to the CAR; instead, it
provides the information required by the Court’s July 18, 2014 Order and explains the
agency’s processes and actions. Cf. Camp v. Pitts, 411 U.S. 138, 142-43 (1973);
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application for Olkar’s H-1B visa (“Form I-129”) and supporting documentation in May
2013. The Form I-129 indicated Olkar’s employment would end on May 19, 2016. CAR
at 10. In September 2013, USCIS requested additional information, including copies of
contracts between Plaintiff and Olkar, copies of contracts and information about the
work to be done for “ultimate end-client companies” for whom Olkar would be providing
services, and descriptions of the services Olkar would be providing to those companies.
CAR at 25-27. Plaintiff supplied the requested information along with an explanatory
letter (“Letter”) stating that Plaintiff “is a consulting company” that “offers a broad range
of professional services” to its clients. CAR at 29. The Letter indicates Olkar’s
employment contract is attached as Exhibit B, CAR at 29, and the Employment Contract
in turn states that Olkar will “serve in the capacity set forth in Exhibit A attached hereto”
– but Exhibit A to the Employment Contract is not in the Record and nothing else in the
Employment Contract describes Olkar’s duties. CAR at 37-41. The Letter also says
that Exhibit C is a copy of the employment offer made to Olkar and that it “clearly
describes the nature of the employer-employee relationship and the services to be
performed by” Olkar. CAR at 30. However, Exhibit C only states that Olker is being
offered “employment with Valorem Consulting” and says nothing about his duties. CAR
at 43-44. The Letter describes Exhibit E as also constituting “a copy of the job
description,” and further explains that Plaintiff is a consulting business that “offers a
broad range of professional services” to its clients. CAR at 31-32. The Exhibit E
referenced by the Letter also generally describes Olkar’s position as performing
consulting services that vary depending on the client’s needs. CAR at 76-79. The

Madison County Bldg & Loan Ass’n v. Federal Home Loan Bank Bd., 622 F.2d 393, 396
(8th Cir. 1980). Having asked for this information, the Court is not inclined to ignore it to
the extent that it responds to the Court’s request by explaining generally how USCIS
evaluates H-1B applications and sheds light on the decisionmaking process in this case.
This approach is particularly appropriate given that USCIS does not issue a written
explanation when an H-1B application is granted (even if granted only partially), and an
agency is not required to issue a written explanation of its decision. E.g., Madison
County, 622 F.2d at 396 (discussing Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402, 417 (1971)). However, the Court has not considered anything else from
Fierro’s Declaration (such as his assertion that USCIS’s decision “was not arbitrary and
capricious”).
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Letter also provides information documenting Olkar’s work for two of Plaintiff’s clients
(YRC Enterprise Services and Microsoft). CAR at 46-75.
USCIS denied the H-1B application; its November 2013 written response
expressed USCIS’s uncertainty as to the precise nature of Olkar’s work and whether
that work constituted a “specialty occupation.” CAR at 20-24. USCIS explained that
Plaintiff was
in the business of locating persons with computer related backgrounds
and placing these individuals in positions with firms that pay a fee to
[Plaintiff] for each worker hired to complete their projects. [Plaintiff] then
pay[s] the worker, in this case the alien, directly from an account under
[Plaintiff’s] name. However, the firm needing the computer related
positions will determine the job duties to be performed.
CAR at 22. USCIS went on to explain that the entity actually using Olkar’s services had
to describe those services (and the duration of those services) in order to evaluate the
application, and while Plaintiff had supplied some documentation indicating Olkar had
provided services to YRC Enterprise Services and Microsoft, the information provided
so far was insufficient. CAR at 22-23. USCIS’s concern was that at some point Plaintiff
could assign Olkar to work for a client on project that no longer qualified as a “specialty
occupation.” This concern was best expressed in the following passage from the
rejection notice:
While [Olkar] may in fact be tasked to work on a project according to the
provided evidence, the very nature of your consulting business indicates
that eventually, [Olkar] would be outsourced to client sites to implement
the specific project and/or assist clients with other technical issues.
Absent additional work orders or agreements with end-clients, the claimed
in-house work, which pertains to only one project, cannot be deemed
representative of [Olkar’s] entire schedule while in the United States. At
best it serves as a representative sample of a project upon which [Olkar]
will work until clients demand additional consulting services.
CAR at 23.
Plaintiff initiated this suit in December 2013. On February 5, 2014 – while the
case was pending – USCIS reversed its decision and granted Olkar an H-1B visa.
However, instead of the requested duration of three years, the visa expires on February
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4, 2015. On July 18, 2014 the Court dismissed all of Plaintiff’s claims except the
challenge to USCIS’s decision to issue a visa valid for one year instead of three years.

II. DISCUSSION

Under the Administrative Procedures Act, the Court can set aside USCIS’s final
decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Both sides cite the same authority for the
proposition that the “scope of review . . . is narrow and a court is not to substitute its
judgment for that of the agency. Nevertheless, the agency must examine the relevant
data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass'n,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotation omitted). The
lack of a contemporaneously-written reason for the decision to award a visa for only one
year does not justify de novo judicial review of that decision; instead, the Court must
“obtain from the agency, either through affidavits or testimony, such additional
explanation of the reasons for the agency decision as may prove necessary.” Camp,
411 U.S. at 143. The Court can also “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.” Motor Vehicle Mfrs., 463 U.S. at 43
(quotation omitted).
A variety of factors combine to confirm that USCIS’s primary concern is the
extent to which Plaintiff established Olkar would be working in a specialty occupation
and how long he would be doing so. The statutes and regulations establish that this is
of paramount concern. The information sought in September 2013 specifically raised
these issues. The November 2013 written denial focused on these concerns. And,
ultimately, the information Plaintiff provided to USCIS does not establish the nature of
Olkar’s employment after June 30, 2014. This justifies USCIS’s decision not to grant an
H-1B visa extending to May 2016.
Plaintiff insists that Olkar was not “employed by” Plaintiff’s clients, but rather was
employed by Plaintiff. It is true that Plaintiff decides which clients Olkar will work for,
and that Plaintiff pays Olkar’s salary. However, the CAR supports the USCIS’s
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conclusion that Olkar’s duties for Plaintiff involved working on various projects for
Plaintiff’s clients. Olkar was not performing work “for Plaintiff” such that Plaintiff could
represent what Olkar would be doing on a regular and recurring basis. In a similar
situation, the Fifth Circuit observed that it is incorrect to unduly focus on the entity that
pays the alien’s wages because even if that entity is an employer, the employer’s client
is also an employer, “and a more relevant employer at that” because the employer’s
client dictates the work that is needed. Defensor v. Meissner, 201 F.3d 384, 388 (5th
Cir. 2000).
Plaintiff also argues Defendants improperly relied on the Neufeld Memorandum
because that document describes a procedure to be applied in a variety of
circumstances where the applicant is either placing the employee permanently with a
third-party for employment or otherwise arranging for off-site work. However,
Defendants did not simply apply the Neufeld Memorandum. Its relevance to this case is
twofold. First, it helps substantiate that USCIS’s procedures call for ascertaining the
nature and length of the alien’s employment so that it can (1) confirm the employment is
a specialty occupation and (2) ascertain the visa’s appropriate duration. Second, the
Neufeld Memorandum provides an analytical framework for employers/applicants
whose employees are not performing work for the employer. Here, Olkar was not
performing work on Plaintiff’s computers, providing consulting to Plaintiff, or generating
solutions for Plaintiff’s work-related problems. He was performing these tasks for
Plaintiff’s clients – and these tasks varied in nature and duration, making it difficult for
USCIS to confirm that Olkar was entitled to an H-1B visa and, if so, for how long. Given
the CAR actually created, Defendants’ decision was not arbitrary and capricious.3

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Plaintiff is free to seek a renewal of Olkar’s H1-B visa, which would necessitate
proof that Olkar will be working in a specialty occupation after February 4, 2014.
Presumably, if that proof sufficiently demonstrates Olkar will be working in a specialty
occupation for more than one year, the visa will be granted for more than one year.
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III. CONCLUSION

Given the evidence in the Record, the decision to award an H-1B visa lasting for
only one year was not arbitrary and capricious. Plaintiff’s Motion for Summary
Judgment is denied, and Defendants’ Motion for Summary Judgment is granted.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: January 15, 2015

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