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Valorem Consulting Group v. United States Citizenship and Immigration Services

United States District Court, W.D. Missouri, Western Division

January 15, 2015

VALOREM CONSULTING GROUP, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, LEON RODRIGUEZ, [1] Director, USCIS, and JEH JOHNSON, Secretary of Homeland Security, Defendants.

ORDER AND OPINION (1) GRANTING DEFENDANTS' MOTION TO DISMISS AND (2) DENYING PLAINTIFF'S MOTION TO DISMISS

ORTRIE D. SMITH, Senior District Judge.

Pending are cross motions for summary judgment. For the following reasons, Defendants' motion (Doc. # 27) is granted and Plaintiff's motion (Doc. # 33) is denied.

I. BACKGROUND

This case involves an H-1B visa granted by the United States Citizenship and Immigration Services ("USCIS"). The visa was requested by Plaintiff on behalf of a nonimmigrant by the name of Amit Olkar. The specific issue to be reviewed is USCIS's decision to issue a visa that was valid for one year instead of the three years requested. The issues in this case are best understood if the Court begins by setting forth the legal framework from which they arise.

The Immigration and Nationality Act ("INA") provides that a visa may be granted to a non-immigrant alien "who is coming temporarily to the United States to perform services.... in a specialty occupation... who meets the requirements for the occupation" and for whom the "intending employer has filed... an application." 8 U.S.C. § 1101(a)(15)(H)(i)(b). There is no dispute that Plaintiff filed an application, that Olkar was to work in a specialty occupation, or that Olkar was qualified to perform services in that specialty occupation. The issue, as stated earlier, is the length of the visa to be granted.

The only statutory guidance establishes that the H-1B visa may not exceed six years. 8 U.S.C. § 1184(g)(4). By regulation, an H-1B visa "shall be valid for a period of up to three years but may not exceed the validity period of the labor condition application." 8 C.F.R. § 214.2(h)(9)(iii). Given the connection between the visa and employment in specialty occupation, and given that the H1-B application must be made by the employer, USCIS evaluates the length of time the alien is going to work in that specialty occupation for that employer. If the application and supporting materials demonstrate that the employer/applicant is likely to employ the alien for more than three years, or that the employment is open-ended without an anticipated termination date, then the visa generally will be granted for the three years permitted by the regulation. The employer can then seek to renew the visa by demonstrating the alien continues to be employed in a specialty occupation. However, if the application and supporting materials indicate that the employment is for less than three years, the visa generally will be granted for the period of time the alien is going to work in a specialty occupation. Fierro Declaration, ¶¶ 6-7, 9, 11; see also generally Neufeld Memorandum (describing procedures when the employer/applicant places its employees at the sites of thirdparties). This approach and focus are consistent with the aforementioned statutes and regulations (and the entire scheme surrounding H-1B visas) which allow the visa only to the extent the alien is performing work in a specialty occupation.

With that background in place, the Court turns now to Plaintiff's application and the Certified Administrative Record ("CAR") developed by USCIS.[2] Plaintiff filed its application for Olkar's H-1B visa ("Form I-129") and supporting documentation in May 2013. The Form I-129 indicated Olkar's employment would end on May 19, 2016. CAR at 10. In September 2013, USCIS requested additional information, including copies of contracts between Plaintiff and Olkar, copies of contracts and information about the work to be done for "ultimate end-client companies" for whom Olkar would be providing services, and descriptions of the services Olkar would be providing to those companies. CAR at 25-27. Plaintiff supplied the requested information along with an explanatory letter ("Letter") stating that Plaintiff "is a consulting company" that "offers a broad range of professional services" to its clients. CAR at 29. The Letter indicates Olkar's employment contract is attached as Exhibit B, CAR at 29, and the Employment Contract in turn states that Olkar will "serve in the capacity set forth in Exhibit A attached hereto" - but Exhibit A to the Employment Contract is not in the Record and nothing else in the Employment Contract describes Olkar's duties. CAR at 37-41. The Letter also says that Exhibit C is a copy of the employment offer made to Olkar and that it "clearly describes the nature of the employer-employee relationship and the services to be performed by" Olkar. CAR at 30. However, Exhibit C only states that Olker is being offered "employment with Valorem Consulting" and says nothing about his duties. CAR at 43-44. The Letter describes Exhibit E as also constituting "a copy of the job description, " and further explains that Plaintiff is a consulting business that "offers a broad range of professional services" to its clients. CAR at 31-32. The Exhibit E referenced by the Letter also generally describes Olkar's position as performing consulting services that vary depending on the client's needs. CAR at 76-79. The Letter also provides information documenting Olkar's work for two of Plaintiff's clients (YRC Enterprise Services and Microsoft). CAR at 46-75.

USCIS denied the H-1B application; its November 2013 written response expressed USCIS's uncertainty as to the precise nature of Olkar's work and whether that work constituted a "specialty occupation." CAR at 20-24. USCIS explained that Plaintiff was

in the business of locating persons with computer related backgrounds and placing these individuals in positions with firms that pay a fee to [Plaintiff] for each worker hired to complete their projects. [Plaintiff] then pay[s] the worker, in this case the alien, directly from an account under [Plaintiff's] name. However, the firm needing the computer related positions will determine the job duties to be performed.

CAR at 22. USCIS went on to explain that the entity actually using Olkar's services had to describe those services (and the duration of those services) in order to evaluate the application, and while Plaintiff had supplied some documentation indicating Olkar had provided services to YRC Enterprise Services and Microsoft, the information provided so far was insufficient. CAR at 22-23. USCIS's concern was that at some point Plaintiff could assign Olkar to work for a client on project that no longer qualified as a "specialty occupation." This concern was best expressed in the following passage from the rejection notice:

While [Olkar] may in fact be tasked to work on a project according to the provided evidence, the very nature of your consulting business indicates that eventually, [Olkar] would be outsourced to client sites to implement the specific project and/or assist clients with other technical issues. Absent additional work orders or agreements with end-clients, the claimed in-house work, which pertains to only one project, cannot be deemed representative of [Olkar's] entire schedule while in the United States. At best it serves as a representative sample of a project upon which [Olkar] will work until clients demand additional consulting services.

CAR at 23.

Plaintiff initiated this suit in December 2013. On February 5, 2014 - while the case was pending - USCIS reversed its decision and granted Olkar an H-1B visa. However, instead of the requested duration of three years, the visa expires on February 4, 2015. On July 18, 2014 the Court dismissed all of Plaintiff's claims except the ...


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