Tenrec, Inc. et al v. US Citizenship and Immigration Services et al
Filing
28
Opinion and Order - Defendants' motion to dismiss (ECF 14 ) is DENIED. Signed on 9/22/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TENREC, INC., SERGII SINIENOK,
WALKER MACY LLC, XIAOYANG ZHU,
Case No. 3:16-cv-995-SI
OPINION AND ORDER
Plaintiffs,
v.
UNITED STATES CITIZENSHIP AND
IMMIGRATIONS SERVICES, LEON
RODRIGUEZ, Director, U.S. Citizenship and
Immigration Services.
Defendants.
Brent W. Renison, PARRILLI RENISON LLC, 610 S.W. Broadway, Suite 505, Portland, OR 97205.
Of Attorneys for Plaintiffs.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General; William C. Peachey, Director;
Glenn M. Girdharry, Assistant Director; and Joshua S. Press, Trial Attorney, UNITED STATES
DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, District Court Section, P.O.
Box 868, Ben Franklin Station, Washington, DC 20044. Of Attorneys for Defendants.
Michael H. Simon, District Judge.
Plaintiffs Tenrec, Inc. and Walker Macy LLC (collectively, the “Employer Plaintiffs”),
and Plaintiffs Sergii Sinienok and Xiaoyang Zhu (collectively, the “Individual Plaintiffs”), bring
this putative class action against U.S. Citizenship and Immigration Services (“USCIS”) and its
director, Leon Rodriguez, in his official capacity. Plaintiffs allege that USCIS improperly
PAGE 1 – OPINION AND ORDER
administers its H-1B specialty occupation nonimmigrant visa worker program in violation of
federal law.1 Defendants move to dismiss Plaintiffs’ complaint for lack of subject-matter
jurisdiction. Defendants argue that the Individual Plaintiffs do not have standing because only
employers have standing to challenge the H1-B visa program and that the Employer Plaintiffs do
not have standing because they do not allege sufficient facts showing injury or that any injury is
judicially redressable. Defendants also argue that Plaintiffs’ claims are time-barred because the
regulations that Plaintiffs challenge were issued more than six years ago. For the following
reasons, Defendants’ motion is denied.
STANDARDS
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 133 S. Ct. 1059, 1064
(2013) (citation omitted). As such, a court must presume “that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations
omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A motion to dismiss for lack of subject matter jurisdiction brought under Federal Rule of
Civil Procedure 12(b)(1) may be either facial or factual. See Safe Air for Everyone, 373 F.3d
at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the
allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. “A
jurisdictional challenge is factual where ‘the challenger disputes the truth of the allegations that,
by themselves, would otherwise invoke federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130,
1
The H-1B program takes its name from 8 U.S.C. § 1101(a)(15)(H)(i)(B), which defines
a class of nonimmigrant alien workers eligible to work in the United States temporarily to
perform services in “specialty occupations.” See 8 C.F.R. § 214.2(h)(1)(i) and (ii)(B) (noting that
these visas are called “H-1B” and describing the H-1B classification).
PAGE 2 – OPINION AND ORDER
1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039)). When a defendant
factually challenges the plaintiff’s assertion of jurisdiction, a court does not presume the
truthfulness of the plaintiff’s allegations and may consider evidence extrinsic to the complaint.
See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson, 586 F.3d
at 685; Safe Air for Everyone, 373 F.3d at 1039. A factual challenge “can attack the substance of
a complaint’s jurisdictional allegations despite their formal sufficiency.” Dreier v. United
States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and quotation marks omitted). The Court must
dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).
BACKGROUND
A. H-1B Visa Program
Employers in the United States may petition for a nonimmigrant work visa under the
H-1B program when they seek to employ foreign workers in specialty occupations that require
theoretical or practical application of a body of highly specialized knowledge, including but not
limited to architecture, engineering, medicine, law, and other fields that require the attainment of
a bachelor’s degree or higher. 8 U.S.C. § 1101(a)(15)(H)(i)(b); 8 C.F.R. § 214.2(h)(4)(ii). To
petition for an H-1B visa, the employer must submit a Form I-129, Petition for Nonimmigrant
Worker. The employer also must file a Labor Condition Application that has been certified by
the Department of Labor (“DOL”). See 8 C.F.R. 214.2(h)(4)(i)(B)(1).
Congress has limited the number of H-1B visa petitions that may be granted in any given
fiscal year.2 This is commonly referred to as the H-1B “cap.” The current annual limit for H-1B
visa petitions subject to the cap is 85,000. Of these, 65,000 visa petitions are subject to the
2
The federal government’s fiscal year is the 12-month period ending on September 30th
of that year, having begun on October 1st of the previous year. Thus, Fiscal Year 2017, or FY
2017, runs from October 1, 2016, through September 30, 2017.
PAGE 3 – OPINION AND ORDER
“regular cap,” with an exemption for the first 20,000 workers who have earned a master’s or
higher degree from a United States institution of higher education (the “master’s cap”). See 8
U.S.C. § 1184(g). 3
The annual “regular cap” of 65,000 was first set by Congress in 2004. Every year since
then, USCIS has received more H-1B petitions than may be approved within the congressionallyset limitations. Indeed, USCIS often receives more petitions during the first five business days in
which petitions for that year may be submitted than may be granted during the entire year. As
alleged by Plaintiffs, the USCIS physically received the following number of H-1B petitions
during the following five-day filing windows:
FY
End of five-day filing window
Number of H-1B Petitions Received
2014
April 7, 2013
124,000
2015
April 7, 2014
172,500
2016
April 7, 2015
233,000
2017
April 7, 2016
236,000
The statute governing H-1B visas states: “Aliens who are subject to the numerical
limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in
the order in which petitions are filed for such visas or status.” 8 U.S.C. § 1184(g)(3) (emphasis
added). H-1B petitions are submitted in hard copy via U.S. mail, sent to a specific mailing center
based on the geographic location of the employer.
In 2005, USCIS adopted rules changing its procedures for accepting and processing H-1B
petitions. Among other things, the new rules authorized, if needed, the use of a random computer
3
Some H-1B visa petitions are not subject to the Congressional limitation. These are
known as “cap-exempt” petitions. In addition, some H-1B visas are set aside under legislation
implementing certain free-trade agreements. Neither are relevant to this lawsuit.
PAGE 4 – OPINION AND ORDER
selection process. See Allocation of Additional H-1B Visas Created by the H-1B Visa Reform
Act of 2004, 70 Fed. Reg. 23775, 23778, 23783 (May 5, 2005) (codified at former 8 C.F.R.
§ 214.2(h)(8)(ii)(B) (Jan. 1, 2006)). Under these procedures, USCIS estimated the number of
petitions it would need to fill the 85,000 slots, monitored the number of petitions received, and
notified the public of the date that USCIS had received the necessary number of petitions (the
“final receipt date”). Only applications received before the final receipt date were part of the
random computer selection, unless the final receipt date was the very first day applications could
be received, in which case applications on both the first and second day were part of the selection
process.
In 2008, these procedures were again changed with the adoption of new rules. See
Petitions Filed on Behalf of H-1B Temporary Workers Subject to or Exempt from the Annual
Numerical Limitation, 73 Fed. Reg. 15,389 (Mar. 24, 2008) (codified at 8 C.F.R.
§ 214.2(h)(8)(ii)(B)). USCIS had found that stopping consideration of petitions received after the
final receipt date caused employers to spend significant effort and money to send petitions by
overnight delivery for receipt by USCIS on the first allowable date. Id. at 15,391. This also
caused problems for overnight delivery carriers and for USCIS offices receiving petitions. Id.
Thus, USCIS changed the procedure to include in the computer selection process all petitions
received within the first five business days. Id. at 15,392 (“This will eliminate filing problems
resulting from a rush of filings made on the first day on which employers may file petitions for
the upcoming fiscal year. USCIS has determined that a filing period of five business days is
sufficient to account for a wider range of mail delivery times offered by the various mail delivery
providers available to the public.” (citation omitted)).
PAGE 5 – OPINION AND ORDER
The new procedure involving the computer selection process, which is the current
procedure challenged by Plaintiffs, provides:
When necessary to ensure the fair and orderly allocation of
numbers in a particular classification subject to a numerical
limitation or the exemption under section 214(g)(5)(C) of the Act,
USCIS may randomly select from among the petitions received on
the final receipt date the remaining number of petitions deemed
necessary to generate the numerical limit of approvals. This
random selection will be made via computer-generated selection as
validated by the Office of Immigration Statistics. Petitions subject
to a numerical limitation not randomly selected or that were
received after the final receipt date will be rejected. Petitions filed
on behalf of aliens otherwise eligible for the exemption under
section 214(g)(5)(C) of the Act not randomly selected or that were
received after the final receipt date will be rejected if the numerical
limitation under 214(g)(1) of the Act has been reached for that
fiscal year. . . . If the final receipt date is any of the first five
business days on which petitions subject to the applicable
numerical limit may be received (i.e., if the numerical limit is
reached on any one of the first five business days that filings can
be made), USCIS will randomly apply all of the numbers among
the petitions received on any of those five business days,
conducting the random selection among the petitions subject to the
exemption under section 214(g)(5)(C) of the Act first.
8 C.F.R. § 214.2(h)(8)(ii)(B).
B. Plaintiffs’ Petitions
To petition for an H-1B visa for an employee to start the first day of a fiscal year,
October 1, the earliest that the petition can be filed is April 1 of the preceding fiscal year. 8
C.F.R. 214.2(h)(9)(i)(B). The Employer Plaintiffs each filed a Form I-129 on April 1, 2016.
Compl. ¶¶ 26-27. Plaintiffs allege that they did not receive a receipt notice for their petitions
because their petitions were not among those randomly selected for processing. Id. ¶ 29.
Plaintiffs bring claims under the Administrative Procedures Act (“APA”), alleging that
Defendants’ are failing to process H-1B visa petitions in the order in which they are received and
PAGE 6 – OPINION AND ORDER
that the random selection process is arbitrary and capricious and contrary to the statutory
requirement that petitions be processed in the order received.
DISCUSSION
A. Standing
Defendants argue that neither the Individual Plaintiffs nor the Employer Plaintiffs have
standing to challenge the H-1B visa selection process. Defendants argue that as the beneficiaries
and not the petitioners, the Individual Plaintiffs do not have standing. Defendants also argue that
the Employer Plaintiffs, although petitioners, do not have standing because they do not
sufficiently allege injury or redressability.
1. Legal Standards
To have standing, a plaintiff must have “personal interest . . . at the commencement of the
litigation.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000). The personal interest must satisfy three elements throughout litigation: (1) an injury in
fact, i.e., an invasion of a legally protected interest that is concrete and particularized, as well as
actual or imminent; (2) a causal connection between the injury-in-fact and the defendant’s
challenged behavior; and (3) likelihood that the injury-in-fact will be redressed by a favorable
ruling. Id. at 180-81, 189; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
When a plaintiff seeks prospective injunctive relief, threat of repeated future injury may
suffice to provide standing. See Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir. 2014). As
explained by the Ninth Circuit:
A plaintiff seeking prospective injunctive relief “must demonstrate
‘that he is realistically threatened by a repetition of [the
violation].’” Armstrong v. Davis, 275 F.3d 849, 860–61 (9th
Cir. 2001) (alteration in original) (quoting City of L.A. v. Lyons,
461 U.S. 95, 109 (1983)), abrogated on other grounds by Johnson
v. California, 543 U.S. 499, 504–05 (2005). A threat of repetition
can be shown “at least two ways.” Id. at 861. “First, a plaintiff may
PAGE 7 – OPINION AND ORDER
show that the defendant had, at the time of the injury, a written
policy, and that the injury ‘stems from’ that policy.” Id. “Second,
the plaintiff may demonstrate that the harm is part of a ‘pattern of
officially sanctioned . . . behavior, violative of the plaintiffs’
[federal] rights.’ ” Id. (alterations in original) (quoting LaDuke v.
Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985)).
Id (emphasis and alterations in original). The threat of repeated future injury, however, may not
be “conjectural or hypothetical.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (quotation marks
omitted).
In addition to Article III standing, in statutorily created causes of action, including those
brought under the APA, the plaintiff must also demonstrate that he or she is within the “zone of
interests” protected by the law invoked in order to have standing to sue for a violation of the
statute (so-called “zone-of-interest” standing). See Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1388-89 (2014). The zone-of-interest test for actions under
the APA is “not especially demanding,” giving “the benefit of any doubt” to the plaintiff and
foreclosing suit “only when a plaintiff’s interests are so marginally related to or inconsistent with
the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized
the plaintiff to sue.” Id. at 1389 (quotation marks and citation omitted).
2. Standing of the Individual Plaintiffs
a. Article III Standing
Defendants argue that because the Individual Plaintiffs are only the beneficiaries, and not
the petitioners, of the H-1B visa petitions, they do not have Article III standing. At oral
argument, Defendants stated that they maintain their position that the Individual Plaintiffs do not
have Article III standing, but focused their argument on zone-of-interest standing.
Case law is divided on whether only employer-petitioners, and not employeebeneficiaries, have Article III standing to challenge immigrant and nonimmigrant visa petitions.
PAGE 8 – OPINION AND ORDER
The Ninth Circuit has found Article III standing for immigrant visa petition beneficiaries, but has
not yet ruled on whether beneficiaries for nonimmigrant visa petitions have Article III standing.
The Court finds more applicable and persuasive the reasoning of cases showing that visa petition
beneficiaries have standing.
The Court starts with the Ninth Circuit’s opinion in Abboud v. I.N.S., 140 F.3d 843
(1998). Mr. Abboud’s father, a United States citizen, filed on Mr. Abboud’s behalf a Form I-130
Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa (“Relative Petition”).
Id. at 845. Mr. Abboud brought suit challenging the denial of that petition. The government
argued that Mr. Abboud did not have standing to challenge the petition because he only was the
beneficiary, and not the petitioner. Id. at 847. The Ninth Circuit rejected this argument, noting
that
When a Relative Petition is filed, “[t]he immigrant beneficiary is
more than just a mere onlooker; it is her own status that is at stake
when the agency takes action on a preference classification
petition.” As the Relative Petition’s beneficiary, Abboud lost a
significant opportunity to receive an immigrant visa when the INS
denied the Relative Petition. This lost opportunity represents a
concrete injury to Abboud that is traceable to the INS’s conduct
and remediable by a favorable decision in this case. Accordingly,
we hold that Abboud has standing in this matter.
Id. (citation omitted) (alteration in original).
Defendants, however, attempt to distinguish Abboud because it involved an immigrant
visa, whereas H-1B visas are nonimmigrant visas. Defendants urge the Court to follow Cost
Saver Mgmt, LLC v. Napolitano, 2011 WL 13119439 (C.D. Cal. June 7, 2011). The Court in
Cost Saver found that a nonimmigrant visa petition beneficiary did not have standing because he
could not show that he suffered harm to his own legal interests, as opposed to the legal interests
of his petitioning employer. The court in Cost Saver distinguished Abboud, finding that because
Abboud involved someone seeking an immigrant visa, which the court noted may eventually
PAGE 9 – OPINION AND ORDER
(through additional petitions) allow a person to become a permanent legal resident of the United
States and the plaintiff in Cost Saver was seeking a nonimmigrant visa for a temporary
employee, the interests were different. 2011 WL 13119439, at *4. The Court does not find the
difference between immigrant and nonimmigrant visas to be a persuasive distinction on the
question of Article III standing that would justify departing from Abboud’s holding that a visa
petition beneficiary has standing.
As an initial matter, the Court notes that a recipient of an H-1B visa can, through
subsequent petitions (such as through a Permanent Labor Certification, I-140 employer
immigrant visa petition, and I-485 employee adjustment of status petition), become a permanent
legal resident of the United States. See, e.g., Musunuru v. Lynch, --- F.3d ---, 2016 WL 4123856,
at *2 (7th Cir. Aug. 3, 2016) (noting that “[t]he Immigration and Nationality Act (“INA”)
provides a three-step process by which an alien who is already lawfully present in the United
States through a nonimmigrant worker visa or status (commonly called H1-B) may become a
permanent resident” and describing the process) (citing 8 U.S.C. §§ 1151(a)(2), 1152(a),
1153(b)(3)(C), 1154(a)(1)(F),1182(a)(5)(A)(i), 1255(a) and 8 C.F.R. §§ 204.5(a), 204.5(n)(1));
see also USCIS, Adjustment of Status, available at https://www.uscis.gov/green-card/green-cardprocesses-and-procedures/adjustment-status, last visited September 19, 2016 (explaining that
nonimmigrant (temporary) workers can request an adjustment in status to immigrant (permanent)
residents). Thus, the Cost Saver court’s attempt to distinguish Abboud is a distinction without a
difference in this case.
Moreover, the Court declines to parse the interests involved in immigrant and
nonimmigrant visas as finely as Defendants’ propose. Even if the Individual Plaintiffs could not
parlay their nonimmigrant work visa into permanent residency, they are still “more than just a
PAGE 10 – OPINION AND ORDER
mere onlooker” because it is their “status that is at stake” when USCIS takes action on an H-1B
petition. Abboud, 140 F.3d at 847. Additionally, the Individual Plaintiffs lose the “significant
opportunity” to obtain authorization to live and work in the United States, earning United States
wages, and enjoying life in the United States. Cf. Patel v. United States Citizenship &
Immigration Servs., 2016 WL 795925, at *10 (E.D. Mich. Mar. 1, 2016) (finding in the context
of a challenge to denial of an I-765 petition4 for a temporary work permit that the plaintiff had
suffered an injury for purposes of Article III standing because the plaintiff lost the opportunity to
obtain work authorization).
The other cases cited by Defendants similarly do not provide a persuasive reason for
finding that visa petition beneficiaries lack Article III standing. The unpublished and nonbinding
decision in Xiaodong Wang v. Holder involves a case where a husband had petitioned for a
change of immigration status for his wife, Ms. Wang, but then later admitted to marriage fraud
and withdrew his petition. 500 F. App’x 650, 651 (9th Cir. 2012). The portion of the opinion
cited by Defendants is a footnote that states:
To the extent Wang contests the agency’s determination that the
petition was in fact withdrawn, the [Bureau of Immigration
Appeals] correctly noted that, as a beneficiary of the petition, she
lacks standing to contest this decision. Matter of Sano, 19 I. & N.
Dec. 299, 300 (BIA 1985) (only visa petitioner can appeal denial
of visa petition). The record contains no suggestion that petitioner
Cheung disagreed with or contested the agency’s determination
that he had withdrawn the petition.
Id. at 651 n.1.
It is unclear from this footnote whether the court in Wang was merely confirming the fact
that the relevant administrative regulations do not convey standing on a visa petition beneficiary
4
“Form I-765 is used by foreign nationals in the United States with certain nonimmigrant
visas or pending immigration applications that allow for temporary employment during their
adjudication period.” Patel, 2016 WL 795925, at *4 n.8.
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to file an administrative agency appeal, which is the holding of the cited case of Matter of Sano,5
or whether the court meant to convey that Ms. Wang lacked Article III standing. To the extent it
was the former, it does not support Defendants’ argument.
To the extent it was the latter, the court in Wang did not engage in any analysis of the
elements of Article III standing and relied solely on a case involving standing to bring an
administrative appeal. The Court finds this dicta in an unpublished opinion not persuasive. See
Mantena v. Johnson, 809 F.3d 721, 732 (2d Cir. 2015) (“In any event, the fact that Mantena may
not have satisfied USCIS’s definition of ‘legal standing’ before the agency does not mean she
does not have standing to bring this lawsuit in federal court.” (emphasis in original)); Kurapati v.
U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255, 1260 (11th Cir. 2014)
(reversing the district court’s finding that the plaintiff did not have constitutional standing, noting
that the regulatory definition “does not preclude the beneficiary from having standing in the
district court,” and finding that the plaintiff had standing); Olamide Olorunniyo Ore v.
Clinton, 675 F. Supp. 2d 217, 223 (D. Mass. 2009) (“Whether a litigant has standing to sue in
federal court, however, is not dependent on any agency regulation.”).
The remaining three cases cited by Defendants all rely on another district court case,
Blacher v. Ridge, 436 F. Supp. 2d 602 (S.D.N.Y. 2006), for the proposition that a visa petition
beneficiary does not have Article III standing. See George v. Napolitano, 693 F. Supp. 2d 125,
130 (D.D.C. 2010); Li v. Renaud, 709 F. Supp. 2d 230, 236 n.3 (S.D.N.Y. 2010); Ibraimi v.
Chertoff, 2008 WL 3821678, at *3 (D.N.J. 2008). Blacher, however, involved a claim that the
5
In Sano, the Board of Immigration Appeals noted that its “appellate jurisdiction is
defined by the regulations” and that without an “affirmative[] grant” of power under the
regulations, the Board has no jurisdiction. Sano, 19 I. & N. at 300-301. The Board further noted
that the regulations provide solely for an appeal to the Board by the petitioner and not the
beneficiary, and thus the Board only has jurisdiction to hear appeals by the petition. Id. at 301.
The Board did not discuss the issue of Article III standing in federal court.
PAGE 12 – OPINION AND ORDER
visa petition beneficiary’s constitutional due process rights had been violated. 436 F. Supp. 2d. at
606. In a footnote, the court in Blacher noted that admission to the United States is a privilege
granted by the United States government and thus an alien does not have a constitutionally
protected right to enter the country. Id. at 606 n.3. The court in Blacher also cited to the agency
regulations establishing that only the visa petitioner (the employer) could seek review of a
petition’s denial to conclude that the only violation of due process the court was going to
consider would be those alleged by the employer. Id. The court in Blacher did not discuss the
fact that the cited administrative regulations apply only to administrative appeals and also did not
discuss any of the elements of Article III standing. The Court does not find persuasive the
limited analysis in Blacher relating to standing. See Shalom Pentecostal Church v.
Napolitano, 2013 WL 162986, at *3-4 (D.N.J. Jan. 15, 2013) (“Shalom I”) (holding that visa
petition beneficiaries do have standing and disregarding Blacher and the other cases cited by
Defendants for improperly relying on “the regulatory requirement that only the petitioner, and
not the petition’s beneficiary” may file an administrative appeal (emphasis in original)).
b. Zone-of-Interest Standing
In their reply brief, Defendants raised the argument that nonimmigrant workers such as
the Individual Plaintiffs are not within the zone of interests protected by the relevant section of
the INA because the statute is designed to protect American workers and employers, not foreign
workers.6 Defendants further argued at oral argument that because Plaintiffs are seeking
nonimmigrant employment status, their situation is different from the plaintiffs in several Circuit
Court opinions noted by the Court that have held that putative immigrant workers have zone-of-
6
The Court notes that although generally new arguments may not be raised in a reply
brief, because Plaintiffs asserted in their response brief that the Individual Plaintiffs had zone-ofinterest standing, the Court considers this argument on the merits.
PAGE 13 – OPINION AND ORDER
interest standing in the adjudication of the petitions filed by their putative employers. See, e.g.,
Mantena, 809 F.3d at 733; Shalom Pentecostal Church v. Acting Sec’y U.S. Dep’t of Homeland
Sec., 783 F.3d 156, 164 (3d Cir. 2015) (“Shalom II”); Kurapati, 775 F.3d at 1261; Patel v. U.S.
Citizenship & Immigration Servs., 732 F.3d 633, 636-37 (6th Cir. 2013). Defendants again argue
that the distinction between immigrant and nonimmigrant workers, as discussed in Cost Saver,
warrants a finding that nonimmigrant workers are not within the zone of interests. The Court
disagrees.
As previously discussed, a nonimmigrant work visa may be a step on the path to
permanent residency or even possibly citizenship, albeit further back on the path than an
immigrant work visa. Notably, however, it is not just the immigrant worker’s position on the
path to permanent residency, citizenship, or longer-term status that is the focal point of the cases
finding zone-of-interest standing for immigrant workers. Those cases primarily turn on the fact
that it is the employee who is the recipient of the visa, it is the employee who gets to work in the
United States, it is the employee who can port their visa to a new employer, and the INA’s
purpose is not solely to protect American workers and employers. See, e.g., Kurapati, 775 F.3d
at 1261 (noting that the ability to port the visa implies that the beneficiary is within the zone of
interests because the employer receives no benefit to the ability of an employee to leave and
work somewhere else, concluding “[e]ven assuming that Congress intended to benefit American
employers and protect jobs for American citizens in creating the framework for employment
visas, that does not rule out that Congress acted with the intent to regulate or protect immigrants’
interests”); Patel, 732 F.3d at 636-37 (“Simply stated, under § 1153(b)(3) it is the alien, not the
employer, who is entitled to an employment visa; and that makes unavoidable the conclusion that
the alien’s interests are among those ‘protected or regulated by the statute[.]’ . . . [T]he alien,
PAGE 14 – OPINION AND ORDER
ultimately, is the one who is entitled to the employment visa. The alien’s interest in receiving it
is therefore within the zone of interests protected or regulated by the statute.” (alteration in
original) (quoting Match-E-BE-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.
Ct. 2199, 2210 (2012)); cf. Shalom II, 783 F.3d at 164 (finding under the text of the INA that
“the interests of employment-based visa petition applicants” are “directly related to the purposes
of the INA,” without any limitation to only employment based immigrant visa petitions, and
finding persuasive the fact that it is the employee who receives the visa, can apply for permanent
residency, and need only show their qualifications).
Similar considerations apply here. It is the Individual Plaintiffs who will receive the
nonimmigrant visa, have the right to live and work in the United States if the visa is approved,
and must follow extensive regulations on his or her conduct in order to work in the United States,
apply for an extension of the H-1B visa, or apply for an adjustment of status to permanent
resident. The Individual Plaintiffs also may accept new employment upon a filing by the
prospective new employer. 8 U.S.C. § 1184(n)(1).7 Additionally, unlike some other temporary
work visas with shorter durations, H-1B visas can be valid for up to six years and additional
extensions may be requested under certain circumstances, such as when a petition for an
adjustment of status is pending. See 8 U.S.C. § 1184(g)(4); 8 C.F.R. §§ 214.2(h)(9)(iii),
(h)(13)(iii)(A).
Moreover, as Plaintiffs’ point out, the statute under which the Individual Plaintiffs’ bring
their challenge is 8 U.S.C. § 1184(g)(3), which provides that H-1B petitions shall be reviewed in
the order received. Reviewing petitions in the order received does not protect American workers,
7
The Supreme Court instructs that in considering the “zone of interests,” a court should
look not only at the specific provision under which the challenge is brought, but also other
provisions having an “integral relationship” to that provision. See Air Courier Conference of Am.
v. Am. Postal Workers Union, 498 U.S. 517, 530 (1991).
PAGE 15 – OPINION AND ORDER
it protects the visa petitioner and beneficiary. Although the application of the statutory cap is
reiterated in this provision, that does not support the conclusion that in this provision Congress is
indifferent to the alien’s interest in having the petition reviewed in order.
Defendants rely on Khalid v. DHS, USA, 1 F. Supp. 3d 560 (S.D. Tex. 2014), to argue
that Plaintiffs do not have zone-of-interest standing. Khalid involved a challenge to a denial of a
petition for an adjustment of status from a religious worker. The court in Khalid relied on its
finding that the INA was intended to protect American laborers and not foreign workers, the
significant limitations placed on religious workers, and the extremely small cap of 5,000
permitted workers, to conclude that a visa petition beneficiary was not in the zone of interests of
the statute relating to foreign religious workers. Id. at 569. Notably, the court in Khalid did not
discuss or distinguish the Sixth Circuit’s opinion in Patel, which found that a visa petition
beneficiary does have zone-of-interest standing. The Court in Patel expressly rejected the
conclusion reached by the Khalid court that the purpose of the INA is to benefit American
employers and laborers. See Patel, 732 F.3d at 636 (“But it is folly to talk about ‘the purpose’ of
the statute when the statute reflects a compromise between multiple purposes. One can speculate
that Congress meant to exclude certain aliens to protect American workers, and admit other,
‘qualified’ aliens to help American employers. But there is no basis in the text of the statute—
none—to conclude that Congress was completely indifferent to the interests of the ‘qualified
immigrants’ themselves.”).
Further, Khalid was decided before the Third Circuit’s decision in Shalom II, the
Eleventh Circuit’s decision in Kurapati, and the Second Circuit’s decision in Mantena. These
cases all found that employment-based visa petition beneficiaries had zone-of-interest standing.
The Third Circuit also rejected the contention that because the INA is intended to protect
PAGE 16 – OPINION AND ORDER
American workers, the alien worker’s interests are also not within the zone of interests. Shalom
II, 783 F.3d at 164. The Third Circuit found that “[t]he text of the INA leaves no doubt that the
interests of employment-based visa petition applicants, and special immigrant religious workers
in particular, are directly related to the purposes of the INA.” Id.
The Court does not find persuasive Khalid’s conclusion that the INA is meant to protect
only American workers and employers, without any consideration of the interests of qualified
nonimmigrants. The Court also notes that the visa program at issue in Khalid had a much lower
statutory cap (5,000) than does the H-1B visas, and thus the court’s reliance in Khalid on the
extremely low statutory cap as supporting a finding that the interests of the foreign worker are
not within the zone of interests is inapplicable to this case.
Defendants also rely on Hispanic Affairs Project v. Perez, 2016 WL 4734350 (D.D.C.
Sept. 9, 2016). The court in Hispanic Affairs found that foreign workers seeking H-2A visas did
not have zone-of-interest standing, finding itself bound to so decide by a recent D.C. Circuit
decision, Mendoza v. Perez, 754 F.3d 1002, 1017 (D.C. Cir. 2014). Id. at *13. In Mendoza, the
D.C. Circuit concluded that American workers had zone-of-interest standing to challenge H-2A
visa decisions because “[t]he clear intent of [the INA’s H-2A] provision is to protect American
workers from the deleterious effects the employment of foreign labor might have on domestic
wages and working conditions.” Mendoza, 754 F.3d at 1017. The D.C. Circuit did not, however,
find that the INA’s H-2A provisions were only concerned with American workers. Whether
nonimmigrant visa petition beneficiaries are also within the zone of interest was not at issue in
Mendoza. The Court agrees with the Third and Eleventh Circuits’ findings that the INA’s interest
in protecting American workers does not mean there is no interest in protecting the foreign
worker. See Kurapati, 775 F.3d at 1261; Patel, 732 F.3d at 636.
PAGE 17 – OPINION AND ORDER
Moreover, H-2A visas are distinguishable from H-1B visas. H-2A visas are generally for
seasonal work, may be extended in one-year increments, and are only for a maximum of three
years before the visa holder must leave the United States for a minimum of three months. See
H-2A Temporary Agricultural Workers, available at https://www.uscis.gov/working-unitedstates/temporary-workers/h-2a-temporary-agricultural-workers#Period%20of%20Stay (last
visited September 19, 2016). Additionally, H-2A visas are not dependent on the qualifications of
the employee, but merely on the need of the employer, and can be sought for an unnamed
beneficiary. H-1B visas, on the other hand, must be petitioned for a specific employee, that
employee must have sufficient qualifications, and the visa is for a longer duration.
The Court notes that the zone-of-interest test “is not meant to be especially demanding”
because Congress intended to “make agency action presumptively reviewable” when enacting
the APA, and the “benefit of any doubt” must be given to the plaintiff. See Lexmark, 134 S. Ct.
at 1389; Match-E-BE-Nash-She-Wish, 132 S. Ct. at 2210. Thus, even if there is doubt that the
INA protects the interests of nonimmigrant beneficiaries, the Court gives the benefit of the doubt
to the Individual Plaintiffs. Accordingly, the Court finds that the interests of the Individual
Plaintiffs as nonimmigrant beneficiaries of an employer-sponsored visa petition are within the
zone of interests protected by the relevant provisions of the INA. The Court cannot say that the
Individual Plaintiffs’ connection to the processing and possible granting of the H-1B visa
petitions filed on their behalf is “so marginally related to or inconsistent with the purposes
implicit” in the INA that it “cannot reasonably be assumed that Congress authorized” the
Individual Plaintiffs to sue. Lexmark, 134 S. Ct. at 1388.
PAGE 18 – OPINION AND ORDER
3. Standing of the Employer Plaintiffs
a. Injury
Defendants argue that Plaintiffs fail adequately to plead an injury. Defendants contend
that Plaintiffs must plead that the Employer Plaintiffs still want to hire the Individual Plaintiffs
and that the Individual Plaintiffs still want to work for those employers, relying on Ching Yee
Wong v. Napolitano, 654 F. Supp. 2d 1184 (D. Or. 2009). The Court finds Wong to be
distinguishable.
Ms. Wong had an H-1B visa to work as a graphic designer. Id. at 1187. Her then-current
employer filed an H-1B extension petition on her behalf. That extension petition was denied on
March 23, 2003. At some point Ms. Wong left work at this employer and began working for a
new employer, who petitioned for H-1B extensions that were granted. Ms. Wong then filed an
I-485 petition to adjust her status from a temporary worker to a permanent resident. Id. at 1188.
This petition was denied because USCIS determined that the time Ms. Wong spent at her first
employer after the H-1B extension petition was denied on March 23, 2003, constituted
unauthorized employment. Id. Ms. Wong and her former employer then both filed suit, arguing
that the March 2003 denial of the extension petition was erroneous. Id. The defendants filed a
motion to dismiss the former employer’s claim for lack of standing.
U.S. Magistrate Judge Stewart held that Ms. Wong’s former employer did not have
standing because it failed to allege an injury. Judge Stewart noted that the former employer had
not employed Ms. Wong for years, did not allege that it wanted to re-employ her in the future,
and did not allege that USCIS’s allegedly improper determination regarding Ms. Wong’s H-1B
extension petition affected the former employer’s ability to find and hire workers. Id. at 1188-89.
Judge Stewart expressly distinguished cases where a putative employer was unable to hire an
alien in an available position because USCIS denied an H-1B petition. Id. at 1189-90 (“Because
PAGE 19 – OPINION AND ORDER
the denial of the visa application would deprive the employer of the prospective employee, each
employer had a concrete and particularized injury, namely the inability to hire a specific
employee it would have hired absent the agency’s action. . . . Additionally, as in the other cited
cases, the plaintiff . . . was actively seeking to employ an alien and was thwarted by the action of
a federal agency, which again presents a text-book instance of an actual, concrete injury.”). The
facts here align with the circumstances that Judge Stewart noted would demonstrate a concrete
and particularized injury—namely that the Employer Plaintiffs wanted to hire the Individual
Plaintiffs and were unable to do so because of USCIS’s action.
Moreover, in response to Defendants’ motion, Plaintiffs filed declarations from the
Individual Plaintiffs attesting that they would still like to work for the Employer Plaintiffs and
declarations from representatives of the Employer Plaintiffs, attesting that they still want to hire
the Individual Plaintiffs. ECF 22-25. The Court deems the Complaint amended to make such
allegations.
Defendants also generally argue that Plaintiffs have not sufficiently alleged an injury by
alleging only that their H-1B petitions were not processed in the order received. The Court
disagrees. Plaintiffs allege that: (1) the statute governing the review of H-1B visas requires that
USCIS review those petitions in the order received; (2) USCIS does not review the petitions in
the order received but instead reviews them based on a random computer-generated selection;
(3) as a result of USCIS’s random selection process, Plaintiffs’ applications were rejected and
were not given any sort of “priority” date, such as is used in the processing of other types of visa
petitions; (4) the lack of a priority date means that as future H-1B visas become available
Plaintiffs’ petitions will not be considered in the order received; and (5) the random selection
process does not ensure that persons whose H-1B visa petitions were selected were not petitions
PAGE 20 – OPINION AND ORDER
received after Plaintiffs submitted their petitions. The Court finds these allegations are sufficient
to show a concrete and particularized injury.
b. Redressability and Mootness
Defendants’ final standing argument is that Plaintiffs fail to allege an injury that is
redressable by this Court. Defendants argue that because the fiscal year 2017 H-1B petitions,
which are those that were filed in April 2016, have already been reviewed and the statutory
quotas are exhausted, Plaintiffs’ claims are not redressable. Defendants further argue that
Plaintiffs cannot sufficiently plead that they will suffer future harm because it is mere
speculation and subjective apprehension that Plaintiffs’ petitions will not be randomly selected if
they were to submit petitions next year. In their reply brief, Defendants also raise the issue of
mootness. The Court does not find Defendants’ arguments persuasive.
First, the wrong alleged by Plaintiffs is not that their petitions were not selected by the
lottery and granted, but that the process itself is illegal because it does not consider applications
in the order received. Plaintiffs assert harm from this year in that their petitions were not
reviewed in the order received and were not given a priority date so that as future H-1B visas
become available, Plaintiffs’ petitions will be “in line” in the order received. Plaintiffs argue that
they will be subjected to that same harm next year when the Employer Plaintiffs file H-1B
petitions on behalf of the Individual Plaintiffs. That is not a harm that is extinguished because
this year’s statutory caps have been reached. Plaintiffs are not asking the Court to order USCIS
to review or grant their petitions for fiscal year 2017. If the Court orders that H-1B petitions must
be reviewed in order without using the random computer selection process, that would redress
Plaintiffs’ alleged harm.8 Thus, Plaintiffs’ alleged harm is redressable.
8
The Court makes no determination regarding the merits of Plaintiffs’ claims.
Redressability considers whether a court order can redress the plaintiffs’ claims for purposes of
PAGE 21 – OPINION AND ORDER
Second, the Court does not agree that Plaintiffs’ fail to allege a realistic threat of future
harm. Plaintiffs’ allegations show that the decision to use the random computer selection system
and to include all of the H-1B visa petitions received in the first five days in that selection is
based on a “written policy,” 8 C.F.R. § 214.2(h)(8)(ii)(B), and the alleged harm to Plaintiffs that
they did not have their H-1B visa petitions reviewed in the order received stems from that policy.
This is sufficient to show a realistic threat of repeated harm. Nordstrom, 762 F.3d at 911.
Third, Plaintiffs’ alleged future harm is not merely conjectural or hypothetical.
Regardless of whether Plaintiffs’ petitions next year will ultimately be selected for review, they
will most likely be subjected to the random computer selection process. Plaintiffs allege that for
the last four years, significantly more petitions have been received than the statutory cap.
Defendants note in their opening brief that in “every year since the general H-1B cap was set
at 65,000 in FY 2004 USCIS receive[s] more H-1B petitions than can be approved per the
statutory cap.” ECF 14 at 5. Defendants emphasize that this year in the first five days in which
petitions could be filed, UCSIS received approximately 236,000 petitions, “almost triple the
number of H-1B visas allowed by statute.” Id. Defendants characterize the number of H-1B visas
petitions received as an “extraordinarily large number” and argue that the volume of applications
justifies the procedures USCIS put in place. Id. After emphasizing how the statutory cap is
always well exceeded by the number of petitions received in the first few days, Defendants then
argue for purposes of redressability that it is “speculative that a cap will be needed for next
year’s lottery.” ECF 16 at 8. The Court rejects this argument.9
standing and not whether the plaintiffs have stated a claim or will prevail on those claims on the
merits. Cf. Abboud, 140 F.3d at 847-48 (finding that the plaintiff had standing to assert his
claims, but then dismissing the plaintiff’s claims for failure to state claim).
9
Defendants also cite to this Court’s opinion in Updike v. City of Gresham, 62 F. Supp.
3d 1205, 1214 (D. Or. 2014). That case, however, involved an alleged threat of future arrest and
PAGE 22 – OPINION AND ORDER
Given the history of the volume of H-1B petitions, it is not unreasonably speculative to
infer that the statutory cap will be met next year. And if the statutory cap is met next year,
under 8 C.F.R. § 214.2(h)(8)(ii)(B) the random computer selection process will be used. Thus,
Plaintiffs’ allegations of procedural injury sufficiently plead redressability. Cf. Ctr. for
Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1044 (9th Cir. 2015)
(“Plaintiffs alleging procedural injury can often establish redressibility with little difficulty,
because they need to show only that the relief requested—that the agency follow the correct
procedures—may influence the agency’s ultimate decision of whether to take or refrain from
taking a certain action. This is not a high bar to meet.” (quotation marks and citation omitted)).
Finally, in their reply brief Defendants raise an additional mootness argument, based on
the fact that the statutory cap for 2016 has already been met. At oral argument, however,
Defendants conceded that if Plaintiffs allege that the Employer Plaintiffs seek to hire the
Individual Plaintiffs next year and intend to file an H-1B petition in April 2017, and the
Individual Plaintiffs intend to accept such employment, then the case is not moot and the
Employer Plaintiffs have standing. The Court noted that it considers these facts to be a
reasonable inference from the facts alleged in Plaintiffs’ Complaint. Nonetheless, the Court
allows Plaintiffs’ leave to replead to make these allegations explicit.
B. Statute of Limitations
In their motion, Defendants argued that Plaintiffs’ claims are time barred under the sixyear statute of limitations applicable to APA claims, asserting that the claims run from the date
that the 2008 revisions to 8 C.F.R. § 214.2(h)(8)(ii)(B) were promulgated. Before oral argument,
prosecution, and the Court was discussing the high bar to seeking prospective injunctive relief in
cases involving arrests, particularly because plaintiffs can avoid the injury by conducting their
activities within the law. Updike also did not involve a written policy from which the plaintiff’s
alleged harm stemmed.
PAGE 23 – OPINION AND ORDER
the Court asked the parties to be prepared to discuss the recent Ninth Circuit decision in PerezGuzman v. Lynch, --- F.3d ---, 2016 WL 4536572 (9th Cir. Aug. 31, 2016), relating to when the
statute of limitations accrues for a challenge from the application of an allegedly improper
agency rule.10 In light of this case, at oral argument Defendants conceded their statute of
limitations motion, recognizing that Plaintiffs are alleging a substantive challenge to 8 C.F.R.
§ 214.2(h)(8)(ii)(B) and thus the statute of limitations commences upon the challenged
application of this regulation to Plaintiffs.
CONCLUSION
Defendants’ motion to dismiss (ECF 14) is DENIED.
IT IS SO ORDERED.
DATED this 22nd day of September, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
10
Perez-Guzman held: “Procedural challenges to agency rules under the Administrative
Procedure Act are subject to the general six-year limitations period in the U.S. Code. See Wind
River Mining Corp. v. United States, 946 F.2d 710, 713–14 (9th Cir. 1991) (citing 28 U.S.C.
§ 2401(a)). Under Wind River, challenges to a ‘mere procedural violation in the adoption of a
regulation or other agency action’ must be brought within six years of the agency rulemaking,
whereas challenges to ‘the substance of an agency’s decision as exceeding constitutional or
statutory authority’ may be brought any time ‘within six years of the agency’s application of the
disputed decision to the challenger.’ Id. at 715–16.
Whether Perez’s challenges are timely therefore depends on whether they are procedural or
substantive. Perez’s central claim is that the Attorney General’s refusal to consider his asylum
application is based on an unreasonable interpretation of § 1158 and § 1231(a)(5). The parties
agree this is a substantive challenge. Because it was brought within six years of the BIA’s refusal
to consider Perez’s asylum application, it is timely. See Cal. Sea Urchin Comm’n v. Bean, --F.3d ---, 2016 WL 3739700, at *4 (9th Cir. July 12, 2016) (holding timely a challenge to ‘the
present application of an earlier rule that allegedly contradicted the agency’s statutory
authority’).” 2016 WL 4536572, at *7.
PAGE 24 – OPINION AND ORDER
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