Taylor Made Software, Inc. v. Cissna ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TAYLOR MADE SOFTWARE, INC., :
:
Plaintiff, : Civil Action No.: 19-202 (RC)
:
v. : Re Document Nos.: 9, 10
:
KENNETH T. CUCCINELLI, Senior Official :
Performing the Duties of the Director, :
United States Citizen and Immigration :
Services, 1 :
:
Defendant. :
MEMORANDUM OPINION
GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
CROSS-MOTION FOR SUMMARY JUDGMENT
Under the H-1B program, non-citizens can temporarily work in the United States if they
are sponsored by an employer in a “specialty occupation.” Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1101(a)(15)(H)(i)(b). Plaintiff Taylor Made Software, Inc. (“Taylor Made”)
filed a H-1B petition on behalf of its intended beneficiary, Mr. Venkatesan Kannan, who planned
to work for the company as a computer systems analyst. The petition was denied by the United
States Citizenship and Immigration Services (“USCIS”) on grounds that Taylor Made failed to
establish that the position was a “specialty occupation” under the INA and associated
regulations. Invoking the judicial review procedures of the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701 et seq., Taylor Made sued the USCIS Director, contending that the
agency’s decision was arbitrary and/or capricious. Currently pending before the Court are the
1
Mr. Kenneth T. Cuccinelli is automatically substituted for Former Director L. Francis
Cissna. See Fed. R. Civ. P. 25(d).
parties’ cross-motions for summary judgment. For the reasons explained below, the Court grants
Plaintiff’s motion, denies Defendant’s, and remands to the agency for further consideration.
I. BACKGROUND
A. Legal Framework
The INA empowers employers to petition for H-1B nonimmigrant visas on behalf of
alien beneficiaries. 8 U.S.C. § 1184(c)(1). To secure a H-1B visa, an employer first submits to
the Department of Labor (“DOL”) a Labor Condition Application (“LCA”), which identifies the
specialty occupation at issue and certifies that the company will comply with the requirements of
the H-1B program. 8 U.S.C. § 1182(n)(1). Then, once the DOL has certified the LCA, the
employer submits it (together with a Form I-129 petition) to USCIS. 8 C.F.R. §
214.2(h)(4)(i)(B). USCIS ultimately determines whether a position counts as a specialty
occupation, see 20 C.F.R. § 655.715, and the employer bears the burden of convincing the
agency that the position so qualifies and the applicant is otherwise eligible for a visa, see 8
U.S.C. § 1361 (“Whenever any person makes application for a visa or any other document
required for entry, . . . the burden of proof shall be upon such person to establish that he is
eligible to receive such visa.”).
For the purposes of the H-1B program, the INA defines a “specialty occupation” as one
that requires “(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 occupation in the United States.” 8 U.S.C. §
1184(i)(1). In line with that statutory definition, the applicable regulations define a specialty
occupation as one that “requires the attainment of a bachelor’s degree or higher in a specific
specialty” or its equivalent, plus “theoretical and practical application of a body of highly
2
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.” 8 C.F.R. § 214.2(h)(4)(ii)
(“Definitions”). The next subparagraph in the regulations provides more specific criteria (or
prerequisites) as to what qualifies:
To qualify as a specialty occupation, the position must meet one of the following
criteria:
(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.
Id. § 214.2(h)(4)(iii)(A) (“Criteria for H-1B petitions involving a specialty occupation”); see also
Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000) (“assum[ing] arguendo that §
214.2(h)(4)(iii)(A) creates [a] necessary and sufficient condition[] for the category of ‘specialty
occupation’” but acknowledging that the provision could also “be read as merely an additional
requirement that a position must meet, in addition to the statutory . . . definition”).
B. Case Background
Taylor Made is a small, Chicago-based software development company with ten
employees. AR 30, 35. 2 On April 12, 2018, it filed a Form I-129 Petition for Mr. Kannan, AR
at 4, whom it sought to employ as a computer systems analyst, AR 34. According to the petition,
2
“AR” refers to the certified administrative record filed in this case. See Administrative
Record, ECF Nos. 15 & 15-1. The corresponding page numbers refer to the stamped Bates
numbers.
3
Mr. Kannan holds a Master of Science in Computer Science from the University of Illinois. AR
42. In a letter accompanying the petition, Taylor Made outlined the duties of the proposed role
and explained why it qualified as a specialty occupation position. AR 197–98.
On May 1, 2018, USCIS issued a request for evidence (“RFE”), seeking additional proof
that the position qualified as a specialty occupation. AR 201–12. In response, Taylor Made
mustered a variety of supporting evidence, including: (a) a more detailed description of the
position, (b) relevant excerpts from various DOL documents (including the Occupational
Outlook Handbook and O*Net Online database), (c) an expert opinion from a Dr. Michael
Lavine (a Professor at the University of Maryland), (d) job advertisements for comparable
positions in the industry, and (e) a summary of the qualifications possessed by other computer
systems analysts employed at Taylor Made. AR 216–24. Notwithstanding the additional
evidence, USCIS denied the petition. AR at 4. The decision explained each of the four §
214.2(h)(4)(iii)(A) criteria and why Taylor Made failed to prove that any of the criteria were
met. AR at 7–13.
In this suit, Taylor Made seeks review of that decision. See Compl. 9–11, ECF No. 1.
Currently ripe and pending before the Court are the parties’ cross-motions for summary
judgment. See Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s MSJ”), ECF No. 9-1; Def.’s Mem. Supp.
Cross-Mot. Summ. J. & Opp’n (“Def.’s XMSJ”), ECF No. 10-1.
II. LEGAL STANDARD
Normally, summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). But this standard does not govern cases involving review of agency
action under the APA “because of the limited role of a court in reviewing the administrative
4
record.” Ctr. for Food Safety v. Salazar, 898 F. Supp. 2d 130, 138 (D.D.C. 2012). In these
contexts, “[i]nstead of reviewing the record for disputed facts that would preclude summary
judgment, the function of the district court is a more limited one: ‘to determine whether or not as
a matter of law the evidence in the administrative record permitted the agency to make the
decision it did.’” Ardmore Consulting Grp., Inc. v. Contreras-Sweet, 118 F. Supp. 3d. 388, 393
(D.D.C. 2015) (quoting Kaiser Found. Hosps. v. Sebelius, 828 F. Supp. 2d 193, 198 (D.D.C.
2011)).
The ultimate standard is whether the agency action was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review under that
standard is “highly deferential.” AT&T, Inc. v. FCC, 886 F.3d 1236, 1245 (D.C. Cir. 2018)
(quoting Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536, 541 (D.C. Cir. 2009)). To pass muster, an
agency must have only “‘examine[ed]’ the relevant factors and data and articulate[d] a ‘rational
connection’ between the record and [its] decision.” Id. (first quoting Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); then quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962)). At the same time, though, judicial
review is not toothless: a court will find an agency acted arbitrarily or capriciously “if it has
relied on factors Congress did not intend it to consider, entirely failed to consider an important
aspect of the problem, or offered an explanation either contrary to the evidence before the agency
or so implausible as to not reflect either a difference in view or agency expertise.” Defs. of
Wildlife v. Jewell, 815 F.3d 1, 9 (D.C. Cir. 2016).
III. ANALYSIS
In challenging the USCIS decision, Taylor Made makes two main arguments. First, it
suggests that the agency has impermissibly “repudiate[d] the plain language” of 8 C.F.R. §
5
214.2(h)(4)(iii)(A). Pl.’s MSJ at 32. Second, it argues that, even under USCIS’s interpretation
of the regulatory framework, the agency still erred in its analysis of the relevant §
214.2(h)(4)(iii)(A) factors when it concluded that a computer systems analyst position was not a
specialty occupation. Id. at 36.
A. USCIS’s Interpretation of 8 C.F.R. § 214.2(h)(4)(iii)(A)
Taylor Made’s first argument zeroes in on an acknowledged discrepancy between the
statutory text and the language of 8 C.F.R. § 214.2(h)(4)(iii)(A). INA itself defines “specialty
occupation” as one that requires the “attainment of a bachelor’s or higher degree in the specific
specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8
U.S.C. § 1184(i)(1)(B) (emphasis added). One part of the applicable regulations echoes that
language. See 8 C.F.R. § 214.2(h)(4)(ii) (requiring “the attainment of a bachelor’s degree or
higher in a specific specialty” or its equivalent) (emphasis added). In contrast, the qualifying
criteria set forth in 8 C.F.R. § 214.2(h)(4)(iii)(A) speak much more broadly of “a degree” and
omit any requirement of a degree in “a specific specialty.” See, e.g., 8 C.F.R. §
214.2(h)(4)(iii)(A)(1) (position qualifies if “[a] baccalaureate or higher degree or its equivalent
is normally the minimum requirement for entry into the particular position”) (emphasis added).
In the decision under review, USCIS acknowledged this discrepancy, but explained in
detail how it has sought to harmonize the language and its rationale for doing so:
8 CFR § 214.2(h)(4)(iii)(A) must logically be read together with INA § 214(i)(1)
[codified at 8 U.S.C. § 1184(i)(1)] and 8 CFR 214.2(h)(4)(ii). Hence, the criteria
stated in 8 CFR § 214.2(h)(4)(iii)(A) should logically be read as being necessary
but not necessarily sufficient to meet the statutory and regulatory definition of
specialty occupation. To otherwise interpret this section as stating the necessary
and sufficient conditions for meeting the definitions of specialty occupation would
result in particular positions meeting a condition under 8 CFR § 214.2(h)(4)(iii)(A)
but not the statutory or regulatory definition. To avoid this illogical result . . .
USCIS consistently interprets the term “degree” in the criteria at 8 CFR §
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214.2(h)(4)(iii)(A) to mean not just any bachelor’s or higher degree, but one in a
specific specialty that is directly related to the proffered position.
AR 5 (emphasis added). Taylor Made challenges this interpretive move, suggesting it
“eviscerate[s] any meaning [8 CFR § 214.2(h)(4)(iii)(A)] has to offer” and “unlawfully
contradicts the promulgated degree requirement” in that section. Pl.’s MSJ at 33–34.
This Court, however, has already endorsed USCIS’s interpretation of these provisions.
See Sagarwala v. Cissna, 387 F. Supp. 3d 56, 66 (D.D.C. 2019). Specifically, it agreed with
USCIS that “§ 214.2(h)(4)(iii)(A) must be read in context, not in a vacuum.” Id. It noted the
narrower definitions of “specialty occupation” that exist in the INA statute and elsewhere in the
regulations, and observed that “[plaintiff’s] proposed interpretation—under which any job
requiring a bachelor’s degree would be eligible—risks expanding H-1B availability beyond those
prescribed limitations.” Id. Other courts have reached the same conclusion. See Raj & Co. v.
USCIS, 85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015) (finding it “well-settled in the case law”
that a generalized bachelor’s degree requirement does not qualify a position as a “specialty
occupation” and noting that “requiring [only] a generalized bachelor degree would run contrary
to congressional intent to provide a visa program for specialized, as opposed to merely educated,
workers”).
This is not to say that a position must require a degree in one particular major or field of
study. See RELX, Inc. v. Baran, 397 F. Supp. 3d 41, 54–55 (D.D.C. 2019) (“There is no
requirement in the statute that only one type of degree be accepted for a position to be
specialized. . . . Nowhere in the statute does it require the degree to come solely from one
particular academic discipline.”); Residential Fin. Corp. v. USCIS, 839 F. Supp. 2d 985, 997
(S.D. Ohio 2012) (“Diplomas rarely come bearing occupation-specific majors.”). But there
nonetheless must be some connection between the degree and the requirements of the position.
7
See 3Q Digital, Inc. v. USCIS, No. 19-cv-579, 2020 WL 1079068, at *3 (D.D.C. Mar. 6, 2020)
(“Of course, common sense dictates that there must be some limits on what type of degree can
qualify. . . . For example, it would defy logic to say that a marketing position is a specialty
occupation if the company allows that position to be filled by someone with a degree only in
biology (or vice versa).”); Caremax, Inc. v. Holder, 40 F. Supp. 3d 1182, 1187–88 (N.D. Cal.
2014) (“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.”). 3
For these reasons, the Court rejects the broader attack on USCIS’s interpretation of its
own regulations and proceeds to consider whether USCIS’s application of those regulations—as
interpreted—was arbitrary or capricious.
B. USCIS’s Analysis of the 8 C.F.R. § 214.2(h)(4)(iii)(A) Factors
In its motion for summary judgment, Taylor Made focuses on the agency’s evaluation of
the first three § 214.2(h)(4)(iii)(A) factors, see Pl.’s MSJ at 36–42, 43–44, and discusses the
fourth (which somewhat overlaps with the second) in its opposition, see Pl.’s Opp’n to Def.’s
XMSJ at 26–29, ECF No. 12. USCIS maintains that Taylor Made failed to qualify the position
under any of the four criteria. See Def.’s XMSJ at 2. The Court will discuss each factor in turn,
keeping in mind that it must consider only “whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of judgment.” ExxonMobil Gas
Mktg. Co. v. FERC, 297 F.3d 1071, 1083 (D.C. Cir. 2002) (quoting Citizens to Preserve Overton
3
In its briefing here, USCIS seems to accept a similar kind of formulation. See Def.’s
XMSJ at 9 (“USCIS has consistently interpreted the INA’s language of ‘specific specialty’ to
require a correlation between the degree requirements for a particular position and the duties of
that particular position.”); see also In re Petitioner, 2013 WL 8124091 (INS), at *9 (A.A.O. Dec.
24, 2013) (“Since there must be a close correlation between the required specialized studies and
the position, the requirement of a degree with a generalized title, such as business administration,
without further specification, does not establish the position as a specialty occupation.”).
8
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). It is not enough that the Court “would have
come to a different conclusion” than the agency had it considered the matter de novo.
Conservation Law Found. v. Ross, 374 F. Supp. 3d 77, 89 (D.D.C. 2019).
1. Whether “[a] baccalaureate or higher degree [in a specific specialty] or its equivalent is
normally the minimum requirement for entry into the particular position”
In determining that the proffered position did not meet this criterion, USCIS relied in part
on the DOL’s Occupational Outlook Handbook (OOH), which it recognized as “an authoritative
source on the duties and educational requirements of the wide variety of occupations that it
addresses.” AR 7; see also Blacher v. Ridge, 436 F. Supp. 2d 602, 609 (S.D.N.Y. 2006)
(“Reliance on the Occupational Handbook is reasonable in determining whether a proposed
position satisfies the requirements of a ‘specialty occupation.’”). OOH’s entry for “computer
systems analyst” in turn explains that “[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.” AR 7. Based on this language, USCIS determined that “a bachelor’s level of
training in a specific specialty is not required for the Computer Systems Analyst occupation.
Many Computer Systems Analysts have liberal arts degrees and gained experience elsewhere.”
AR 8. “As result,” the agency concluded, “the proffered position cannot be considered to have
met this criterion.” AR 8.
Despite the narrow scope of its review, the Court is unable to endorse USCIS’s reading of
the OOH or the conclusion it draws from it. The Handbook’s statement that a bachelor’s degree
in computer or information science is “common, although not always a requirement” seems to
support, rather than disprove, the proposition that “[a] baccalaureate or higher degree [in a
specific specialty] or its equivalent is normally the minimum requirement for entry into the
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particular position.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) (emphasis added). The fact that “some
firms” hire analysts with general business or liberal arts degrees does not prove—or even
suggest—that a specialty degree is not “normally” required. Again, the regulatory criterion is
not whether such a degree is always required, or whether some employers do not require it.
Additionally, the OOH—on the very same page—notes that “[m]ost computer systems
analysts have a bachelor’s degree in a computer-related field.” AR 461. The USCIS decision
does not address this language, AR 7, and the agency’s cross-motion for summary judgment
here likewise makes no mention of it, as Taylor Made notes. Pl.’s Opp’n to Def.’s XMSJ at 18
(“The agency’s motion, like its decision, does not acknowledge this passage in the OOH, and
omits discussion of evidence in the record that shows ‘most’ have a degree in computer
science.”). Admittedly, that language is not couched in terms of an explicit requirement or
condition of employment, but it strikes the Court as relevant, particularly when read in context
with the already-discussed observation that a related degree is “common, although not always a
requirement.” Finally, the OOH also notes that a master’s degree in computer science may be
more appropriate for “more technically complex positions.” AR 461. While again not
determinative, when read in context, it does imply that a specialized bachelor’s degree is the
typical baseline requirement.
The court’s analysis in Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252
(S.D.N.Y. 2017) is relevant. There, the OOH entry for “computer programmer” explained that
“some employers hire workers with an associate’s degree,” but went on to say that “[m]ost
computer programmers have a bachelor’s degree in computer science or a related subject.” Id. at
267–68 (internal quotations omitted). Based on this language, the court concluded that “the
Occupational Handbook arguably demonstrates that a bachelor’s degree or higher in a specific
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specialty is ‘normal[ly]’ the minimum requirement for entry into the position.” Id. at 268
(alteration in original) (quoting 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)). 4 Also helpful is Xiaotong Liu
v. Baran, No. 18-cv-376, 2018 WL 7348851 (C.D. Cal. Dec. 21, 2018). In Liu, the court relied,
in part, on “OOH language indicating that ‘most’ positions require a four-year bachelor’s
degree” to conclude that “the record establishes that the position normally requires a bachelor’s
degree or higher.” Id. at *5. Most recently, Judge Lamberth found that O*Net language
indicating that “most” positions require a degree, but “some” do not, ultimately supported the
petitioner. See 3Q Digital, Inc., 2020 WL 1079068, at *3 (“[The regulation] does not say that a
degree must always be required, yet the agency appears to have substituted the word ‘always’ for
the word ‘normally.’ This is a misinterpretation and misapplication of the law, and [one that]
effectively hold[s] the plaintiff to a higher standard than that which is set by the regulation . . .”).
Some divergent authority comes from Ajit Healthcare Inc. v. United States Dep’t of
Homeland Sec., No. 13-cv-1133, 2014 WL 11412671 (C.D. Cal. Feb. 7, 2014). There, the court
found “at least a ‘rational connection’ between the Handbook description of the job in question
and the conclusion that a [position] would not normally require a baccalaureate degree or higher”
when the OOH provided that “[a]lthough bachelor’s and master’s degrees are the most common
educational pathways to work in this field, some facilities may hire those with on-the-job
4
In a footnote, USCIS suggests that Next Generation is inapposite because it relied in
part on “an internal USCIS memorandum that has since been rescinded.” Def.’s Reply Mem. at
9 n.5, ECF No. 13. It is true that the now-rescinded memorandum was further evidence
weighing against the agency in that case. But Next Generation separately found that—for the
reasons discussed above—the agency’s interpretation simply “d[id] not represent a fair reading
of the Occupational Handbook.” 328 F. Supp. 3d at 267. That, in turn, supported the court’s
conclusion that USCIS’s decision was arbitrary and capricious. Id. at 268. Whether Next
Generation would have reached the same conclusion in the absence of the memorandum is
unclear, but that does not mean its interpretation of the OOH language was wrong or inapplicable
here.
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experience instead of formal education.” Id. at *4 (internal citation omitted). It was enough,
Ajit concluded, that “the Handbook describes a pathway to the position that does not require any
formal education.” Id. (emphasis added). Another district court decision, distinguishing Next
Generation, found that an OOH entry indicating that “[m]ost computer programmers have a
bachelor’s degree” did “not describe the normal minimum educational requirements of the
occupation in a categorical fashion.” Innova Solutions, Inc. v. Baran, 399 F. Supp. 3d 1004,
1013, 1015 (N.D. Cal. 2019). 5
Aware that the precise OOH language at issue varies across these cases, the Court
nonetheless finds the overall thrust of Liu, Next Generation, and 3Q Digital more relevant and
persuasive than Ajit and Innova Solutions. 6 If USCIS wants to discount OOH evidence
indicating both that a specialty degree requirement is “common” and that “most” people in the
position have a degree in a computer-related field, it cannot simply rely on the OOH’s
recognition that an unspecified number of contrary cases exist. That is not a rational treatment of
5
Innova Solutions also seems to suggest that, if the OOH description indicates that some
jobs in the field do not require a degree in the specialty, the employer must provide additional
evidence indicating that its job is different from those that do not require the specialty degree.
399 F. Supp. 3d at 1015 (finding that petitioner “could not simply rely on the OOH profile,” but
“had the burden to show that the particular position offered . . . was among the Computer
Programmer positions for which a bachelor’s degree was normally required.”). While this
approach has some appeal in principle, it is unclear whether the OOH description provides
enough detailed information to enable this kind of comparative analysis. It also significantly
raises the burden on a petitioner—if an OOH description acknowledges, in passing, that a
particular position occasionally does not require a specialty degree, a petitioner must somehow
define a new subfield and muster supporting non-OOH evidence. This drastically reduces the
value of the OOH as an authoritative resource. More fundamentally, it again seems to reframe
the relevant question: whether a specialty degree is normally required. The fact that the OOH
acknowledges some exceptions should not be fatal or even particularly significant.
6
Innova Solutions and Ajit are also distinguishable on their facts: the OOH language at
issue in those cases did not include a statement that a relevant bachelor’s degree is “common,
although not always a requirement.” See Innova Solutions, 399 F. Supp. 3d at 1013; 2014 WL
11412671, at *4. As discussed, that OOH language is particularly helpful to Taylor Made.
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the language in the OOH—a document that the USCIS decision itself recognizes as
“authoritative”—or the regulation itself. AR 7. And because this reading of the OOH was
crucial to USCIS’s conclusion that the position did not qualify under this criterion, USCIS’s
decision must be remanded for reconsideration and further explanation. 7
2. Whether “[t]he degree requirement is common to the industry in parallel positions among
similar organizations” or the “particular position is so complex or unique that it can be
performed only by an individual with a degree”
In evaluating this criterion, USCIS broke the requirement into two subparts and determined
that Taylor Made failed to set forth satisfactory evidence under either prong.
Under the first prong: to determine whether the degree requirement is common in parallel
positions, the agency reviewed Taylor Made’s submission of four comparator job postings from
companies in the industry. AR 9. However, the agency found that Taylor Made did not
sufficiently explain how the comparator companies were similar to Taylor Made or establish that
the comparator positions were actually parallel to Taylor Made’s computer systems analyst
position. AR 9–10. For example, one of the comparator positions was a “software developer”
position, which is a separate occupation according to the OOH. AR 10. Additionally, some of
duties of the comparator positions appeared to be more advanced than those of the Taylor Made
position. AR 10. Having performed its own review of the job postings and the company
descriptions, AR 688–92, along with the rest of the record, the Court cannot say that USCIS’s
determination was arbitrary, capricious, or an abuse of discretion.
7
When an agency action violates the APA, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.” Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). After all, a reviewing court “is not
generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach
its own conclusions based on such an inquiry.” Id. However, the Court does take this
opportunity to observe that the statute seems designed to apply to jobs like the one at issue and
benefit talented, well-educated beneficiaries like Mr. Kannan.
13
As the second prong: to determine whether the position is so complex or unique that it
can be performed only by an individual with a degree, USCIS focused on Taylor Made’s
description of the position’s duties it provided. AR 10–11. USCIS ultimately found it
insufficient because it “was generic in nature and provides no further detail as to the unique or
complex nature of the proffered position.” AR 10. Again, having considered the record,
including the proffered job description, AR 245–48, the Court finds no basis to conclude that
USCIS’s decision to rely on the job description and reject it as insufficient was legally flawed.
3. Whether “[t]he employer normally requires a degree or its equivalent for the position”
As to this criterion, USCIS considered two main kinds of evidence submitted by Taylor
Made: (1) a list of other employees and their educational qualifications; and (2) other job
postings for positions at Taylor Made. AR 11–12. USCIS discounted the first category because,
although the other employees had bachelor’s degrees, nothing indicated that such degrees were
actually required for the position. AR 11. And it discounted the second, because the job
postings were different from the proffered position; in fact, as before, the positions were for the
separate position of “software developer.” AR 12. 8 Although Taylor Made is correct to argue
that USCIS should not rely only on job titles, it points to no other evidence indicating that the
jobs were, in fact, apt comparators in order to meet its burden of proof. After reviewing the
employee information, AR 772–83, and the job postings at issue, AR 785–86, the Court finds
that USCIS did not act arbitrarily or capriciously in rejecting the proffered evidence as
insufficient.
8
Indeed, in its letter accompanying the materials submitted in response to the RFE,
Taylor Made itself acknowledges that “these ads are not for the Computer Systems Analyst job.”
AR 223.
14
4. Whether “[t]he 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”
Finally, as to the fourth criterion, USCIS considered an expert opinion provided by Dr.
Lavine, 9 as well as the duties of the position as described by Taylor Made.
First, USCIS did not credit Dr. Lavine conclusions, in part because it found he “rel[ied]
on [Taylor Made’s] description of the position rather than any specific study of the position at
your organization” and “d[id] not demonstrate or assert in-depth knowledge of your business
operations or how the duties of the position will actually be performed.” AR 12. The Court is
somewhat concerned by the agency’s particular focus on the perceived failure of Dr. Lavine to
conduct a “study.” As his opinion relays, Dr. Lavine spoke with the President of Taylor Made,
who was, in fact, the immediate supervisor for the position (recall that Taylor Made is a small,
10-person operation). AR 676. It is not clear to the Court what much more Dr. Lavine could
reasonably be expected to have done; USCIS’s decision suggested that he could have “visited
your business, observed your employees, interviewed them about the nature of their work, or
documented the knowledge that they apply to on the job,” AR 12, but that seems like a lot of
time and effort for an uncertain payoff, and there is no indication that these steps are usually
treated as requirements. But USCIS’s more general point seems to be that Professor Lavine took
9
Taylor Made suggests that Professor Lavine’s opinion was broadly relevant and should
have been considered as probative evidence under the second criterion. See Pl.’s Opp’n to Def.’s
XMSJ at 24. But, as discussed, USCIS criticized the opinion on general grounds, including that
it did not “demonstrate a sound factual basis for the professor’s conclusion about the education
requirements for the proffered position” and “is not supported by copies or citations of research
material.” AR 12. Based on these perceived infirmities and others, the agency ultimately
“discount[ed] the advisory opinion as not probative of any criterion of 8 C.F.R. §
214.2(h)(4)(ii)(A).” AR 12 (emphasis added). While the Court may not agree with USCIS’s
aggressive skepticism of Professor Lavine’s opinion, the agency’s own evaluation of expert
evidence merits some deference.
15
Taylor Made’s explanations and description at face value, without conducting a sufficiently
rigorous independent evaluation. See AR 12 (“There is no evidence that the professor knew any
more about the specific duties of the position than what you provided.”). While the Court may
not necessarily agree with this assessment, USCIS has explained its reasoning and is entitled to
its own reasonable evaluation of an expert opinion. See Sagarwala v. Cissna, 387 F. Supp. 3d
56, 66 (D.D.C. 2019) (“USCIS could have, in its discretion, accepted [a] professional opinion,
but, absent more support, the agency certainly was not required to.”).
Second, the agency found Taylor Made’s description of the duties of position indicated
that it required “a certain amount of skill, training, and attention to detail,” but did not “establish
that the proffered position is any more specialized or complex than any other Computer Systems
Analysts job.” AR 12–13. The Court finds this statement, as far as it goes, to be a reasonable
interpretation of the submitted evidence. However, for the reasons already discussed, see
Section III.B.1 supra, the premise underlying USCIS’s statement (i.e., that the standard position
does not require a specialty degree) needs to be reconsidered.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED, and
Defendant’s cross-motion for summary judgment is DENIED, to the extent that this Court finds
that, in denying Taylor Made’s petition, USCIS disregarded or failed to explain why it
discounted substantial evidence in the record that supported a determination that Taylor Made
had met the requirements for approval of an H-1B visa petition under 8 C.F.R. §
214.2(h)(4)(iii)(A)(1), and that USCIS’s decision was therefore arbitrary and capricious. This
matter is remanded to USCIS for further proceedings consistent with this Memorandum Opinion.
A corresponding order is separately and contemporaneously issued.
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Dated: March 31, 2020 RUDOLPH CONTRERAS
United States District Judge
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