Opinion
19-CV-6657 (GRB)(AYS)
2022-01-25
Deep Mandhubhai PANDYA, Plaintiff, v. Ur M. JADDOU, Director, United States Citizenship and Immigration Services, Defendant.
Brad Banias, Pro Hac Vice, Wasden Banias LLC, Charleston, SC, for Plaintiff. Megan Jeanette Freismuth, U.S. Attorney's Office, Central Islip, NY, for Defendant Mark Koumans.
Brad Banias, Pro Hac Vice, Wasden Banias LLC, Charleston, SC, for Plaintiff.
Megan Jeanette Freismuth, U.S. Attorney's Office, Central Islip, NY, for Defendant Mark Koumans.
MEMORANDUM AND ORDER
GARY R. BROWN, United States District Judge:
Plaintiff, Deep Mandhubhai Pandya, brings this action against United States Citizenship and Immigration Services ("USCIS") Director, Ur M. Jaddou, under the Administrative Procedure Act ("APA") alleging USCIS's denial of a petition to extend an improvidently issued H-1B visa was arbitrary and capricious. Defendant moves to dismiss for lack of subject matter jurisdiction and failure to state a claim under Fed. R. Civ. P. 12, or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated herein, defendant's motion for summary judgment is GRANTED.
Ur M. Jaddou replaced Acting Director Mark Koumans, the original defendant in this case. See Fed. R. Civ. P. 25(d) ("The officer's successor is automatically substituted as a party.").
Procedural History
Plaintiff and his wife, Pooja Deep Pandya, instituted the instant action on November 25, 2019. Docket Entry ("DE") 1. On March 9, 2020, the parties stipulated to the dismissal of Ms. Pandya's claim for unreasonable delay in the adjudication of her EB-5 visa. DE 11, 12. On May 13, 2020, defendant filed a copy of the Administrative Record ("AR") with the Court. DE 22. On May 20, 2020, defendant filed a corrected copy of the AR, which contained eight additional pages consisting of USCIS's electronic records of plaintiff's initial visa application. DE 24. Jennifer A. Roller, the Section Chief responsible for the adjudication of H-1Bs, explained that these electronic records were overlooked in the compilation of the AR although USCIS had referred back to them when adjudicating plaintiff's application. DE 23, ¶¶ 5, 7. After the late Judge Feuerstein's passing, this case was reassigned to the undersigned. Electronic Order dated 06/03/2021. On October 18, 2021, defendant filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. DE 37.
Background
An H-1B visa is a nonimmigrant worker classification for non-citizens performing services in a specialty occupation. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). "The Government may issue up to 65,000 regular H-1B visas in a given fiscal year (the ‘regular cap’), and it may also issue an additional 20,000 H-1B visas to foreign citizens who have earned postgraduate degrees from United States universities under the ‘Masters cap.’ " Controlled Air, Inc. v. Barr , No. 3:19-CV-1420 (JBA), 2020 WL 979874, at *1 (D. Conn. Feb. 28, 2020), aff'd , 826 F. App'x 121 (2d Cir. 2020) (citing 8 U.S.C. § 1184(g) ). Section 1184(g)(5)(C) requires that a Master's cap applicant earn their postgraduate degree from "a United States institution of higher education (as defined in section 1001(a) of title 20)," which, in turn, defines a U.S. institution of higher education as a "public or other nonprofit institution[.]" 20 U.S.C. § 1001(a)(4).
Facts
Plaintiff is a citizen of India and resides in Suffolk County, New York. Compl. ¶ 1. Plaintiff's wife is also a citizen of India and together they have two US Citizen children. Compl. ¶¶ 2, 57. In March 2009, plaintiff earned an MBA from Stratford University. AR 43. On September 6, 2012, USCIS approved a Form I-129, Petition for Nonimmigrant Worker filed on behalf of Pandya by his former employer, Gaming Elite. AR 310-11. USCIS's records indicate that Pandya's initial visa for Gaming Elite fell under the "MAS" category, which, as H-1B Section Chief Jennifer Roller explained, means the petition was selected for the Master's cap. AR 311; DE 23, ¶ 8. Plaintiff alleges that "[u]pon information and belief, [his H-1B visa] was selected as part of the H1B lottery for beneficiaries with bachelor's degrees," Compl. ¶ 59, but does not offer any proof. On September 20, 2017, plaintiff's new employer, Computech Computers, Inc., petitioned for an extension of plaintiff's H-1B status, which was set to expire on September 30, 2017. AR 95, 108-20. On August 8, 2018, USCIS denied the application because:
All cites to the Administrative Record (AR) reference the corrected copy filed with this Court on May 20, 2020. See DE 24.
As evidence that your initial petition was approved under the Master's Cap Exemption, you submitted a copy of the master's or higher degree issued to the beneficiary from Stratford University. However, it was determined that ... Stratford is a private for-profit university. Thus, the institution does not meet all of the requirements as defined in section 101(a) of the Higher Education Act of 1965 (Sec 20 USC 1001(a), supra).
AR 87.
In a motion to reopen/reconsider filed on September 4, 2018, Computech Computers, Inc. admitted, "petitioner ... [was] not aware of the fact that Stratford University was not a non-profit organization ... if they had known they would not have submitted the petition under the master's cap, since the H-1B Regular Cap was still open and available on September 27, 2011." AR 146. The company did not challenge USCIS's characterization of Stratford University as a for-profit institution. Id.
Plaintiff appealed USCIS's denial, and the agency denied the application once again on November 1, 2018:
The petition sought to classify the beneficiary as a H-1B under section 101(A)(15)(H)(i)(b) of the Immigration and Nationality Act, as amended. That petition was denied because the initial petition was approved under the Master's Cap Exemption. You submitted a copy of the master's or higher degree listed to the beneficiary from Stratford University. It was determined from The National Center for Education website (www.nces.ed.gov) that Stratford University is a private for profit university. Thus, the institution does not meet all of the requirements as defined in section 101(a) of the Higher Education Act of 1965 (see 20 USC 100l(a), supra). In order to qualify for an H-1B numerical cap exemption based upon a master's or higher degree, the conferring institution must have qualified as a "United States institution of higher education" at the time the beneficiary's degree was earned. See Matter of A-T-Inc. Adopted Decision 2017-04 PM-602-0145.
Filing of EAC1126050648 was approved on September 6, 2012, under the master's degree exemption. Since there were no available numbers under the regular cap category at the time of approval, your initial petition could not have been counted under the regular cap category. Therefore, the petition, EAC1126050648, was approved in error.
Although the beneficiary has had petitions previously approved using the same and/or similar evidence in past petition(s), USCIS is not required to continue to issue approvals since those prior approvals may have been in error. See Matter of Khan, 14 I. & N. Dec 397 (BIA 1973) , by extension; Matter of M-, 4 I&N Dec 532 (BIA 1951; BIA, A.G. 1952) where it was found this service is not required to approve applications or petitions where eligibility has not been demonstrated because of prior approvals which may have been erroneous.
Since the beneficiary has never been counted against the regular H-1B Cap, the information provided in this petition is not applicable. The beneficiary is not eligible for the cap exemption under the requirements specified in Section 214(g)(7) of the INA related to extensions. Based on the requested employment start date, the beneficiary would be subject to FY 2012 numerical limitation. However, you filed this petition after the final receipt date of the FY 2012 CAP, which had been closed on November 22, 2011.
***
Accordingly IT IS ORDERED that the previous decision will be, and is hereby, affirmed. The petition is denied.
AR 93–94.
As the defendant summarized, "[p]laintiff was erroneously counted against the master's cap and the regular cap had closed by the time the petition was decided, thus there is no cap allocation for Plaintiff to retain." DE 38, Def. Mot. at 12.
On December 3, 2018, another immigration attorney filed yet another motion to reopen. AR 98. An exhibit filed in support of that motion stated that Stratford University is a "for-profit institution" which in October 2019 became a "public benefit corporation." AR 107. On July 19, 2019, USCIS reopened proceedings but once again denied the petition because plaintiff's initial H-1B was issued in error since Stratford University was a for-profit institution. AR 5. Standing
The government argues that Mantena v. Johnson , 809 F.3d 721, 730, 736 (2d Cir. 2015) – which held that the beneficiary of a denied immigrant visa petition had standing in federal court – is distinguishable because this case involves a nonimmigrant visa. Def. Mot. at 4. Nothing in Mantena ’s reasoning supports that tenuous distinction. In Mantena , the Second Circuit held that "[w]hat is determinative is that [plaintiff] falls within the zone of interests protected by the statute, which conveys Congress's intent to grant individuals such as [plaintiff] the right to sue under the statute in federal court." Id. at 733. The court disregarded the agency's definition of standing for administrative appeals as set forth in 8 C.F.R. § 103.3(a)(1)(iii)(B) – which states that beneficiaries of visa petitions lack standing – because the agency's definition cannot supplant Article III standing in federal court. Id. at 732. "The text of the INA leaves no doubt that the interests of employment-based visa petition applicants ... are directly related to the purposes of the INA." Id. at 733 (citing Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec. , 783 F.3d 156, 164 (3d Cir. 2015) ). The same holds true of plaintiff in the instant case, who also challenges the denial of an employment-based visa petition. "While this Circuit has not yet addressed whether the beneficiaries of non immigrant visa petitions similarly have standing to seek judicial relief when faced with petition denials by USCIS, courts in other jurisdictions have expanded upon the reasoning in Mantena to find that such plaintiffs do have standing to sue." Next Generation Tech., Inc. v. Johnson , 328 F. Supp. 3d 252, 264 (S.D.N.Y. 2017) ; see Tenrec, Inc. v. United States Citizenship & Immigrs. Servs. , No. 3:16-CV-995-SI, 2016 WL 5346095, at *9 (D. Or. Sept. 22, 2016) ("interests of the Individual Plaintiffs as nonimmigrant beneficiaries of an employer-sponsored [H-1B] visa petition are within the zone of interests protected by the relevant provisions of the INA"); Parcha v. Cuccinelli , No. 4:20-CV-015-SDJ, 2020 WL 607103, at *3–5 (E.D. Tex. Feb. 7, 2020) (beneficiary of a revoked H-1B visa has Article III standing). Thus, the Court finds plaintiff has Article III standing under Mantena v. Johnson .
Discussion
"When a party seeks review of agency action under the APA, the ‘entire case on review is a question of law’ such that ‘[j]udicial review of agency action is often accomplished by filing cross-motions for summary judgment,’ " and "the court relies on the administrative record for the material facts to determine if the agency's decision ... is arbitrary and capricious or an abuse of discretion." Am. Steamship Owners Mut. Prot. & Indem. Ass'n, Inc. v. United States , 489 F. Supp. 3d 106, 128 (E.D.N.Y. 2020) (citation omitted). The well-established standards for deciding whether an agency's decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under 5 U.S.C. § 706(2), as discussed in Am. Steamship Owners Mut. Prot. & Indem. Ass'n, Inc. , 489 F. Supp. 3d at 130, is incorporated herein by reference.
Administrative Procedure Act (APA)
The record indicates that plaintiff's original 2012 H-1B visa was issued from the Master's cap. The corrected AR contains a printout from USCIS's electronic system indicating that petitioner's prior petition category was "MAS," AR 311, which means plaintiff's initial visa came from the Master's cap exemption. DE 23, ¶ 8. Moreover, plaintiff's employer admitted that they "were not aware of the fact that Stratford University was not a non-profit organization ... if they had known they would not have submitted the petition under the master's cap ...." AR 146. In addition, an exhibit filed with plaintiff's motion to reconsider stated Stratford University is a "for-profit institution." AR 107. Given the clarity of the record, USCIS's finding that plaintiff's initial visa was erroneously "approved ... under the master's degree exemption" although Stratford University is a "private for profit university ... [that] does not meet all of the requirements as defined in section 101(a) of the Higher Education Act of 1965," AR 93-94, is not arbitrary and capricious. USCIS can change a prior visa determination so long as they "adequately explained its departure from its prior course of action." Glara Fashion, Inc. v. Holder , No. 11-CV-889(PAE), 2012 WL 352309, at *7 (S.D.N.Y. Feb. 3, 2012). "[A]n agency is not bound to follow an earlier determination as to a visa applicant where that initial determination was based on a misapplication of the law." Id. (citing Royal Siam Corp. v. Chertoff , 484 F.3d 139, 148 (1st Cir. 2007) ). Hence, the agency's decision to deny the extension of plaintiff's improvidently issued H-1B is not arbitrary and capricious.
Plaintiff's arguments that the Court should not consider the corrected AR are unavailing. The additional pages added to the AR consist of USCIS records relied upon by defendant when adjudicating plaintiff's visa application, and therefore should properly be considered part of the record. Jennifer Roller's declaration explaining the meaning of the MAS acronym is only intended to help explain a specialized term in the record. "It is ‘proper’ for courts to consider supplemental materials to clarify or explain ‘the original information before the [a]gency’ when such material would be ‘helpful in understanding the problem faced by the [a]gency and the methodology it used to resolve it.’ " Saget v. Trump , 375 F. Supp. 3d 280, 342 (E.D.N.Y. 2019).
Plaintiff argues that his original petition could have been granted under the regular cap because it was still available at the time the petition was filed, DE 40, Pl. Opp. at 8, and "there is no evidence in the certified administrative record to support that factual finding." Pl. Opp. at 1. Although the record does not contain plaintiff's initial visa issued under the master's cap, this is merely because the agency destroyed the initial petition in accordance with its record retention policy. DE 23, ¶ 12. As explained supra , USCIS's records clearly indicate that plaintiff's initial petition was granted under the Master's cap – not surprising given that he held an MBA. Regardless, plaintiff – not defendant – bears the burden of showing that the agency's decision was arbitrary and capricious, and he has not come forth with any evidence to meet that burden. Miezgiel v. Holder , 33 F. Supp. 3d 184, 189 (E.D.N.Y. 2014). Finally, plaintiff's contention that USCIS "did not go through the necessary steps to revoke upon notice Mr. Pandya's prior H1B petition," Compl. ¶ 82a, is unfounded because the record shows that USCIS issued a Notice of Intent to Deny, giving plaintiff's employer an opportunity to respond. AR 172–75; see 8 C.F.R. §§ 214.2(h)(11)(iii)(A) and (B) (petitioner must be given notice and an opportunity to respond if revocation is based on certain grounds).
Conclusion
For the reasons stated herein, defendant's motion for summary judgment is GRANTED in its entirety.