UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STELLAR IT SOLUTIONS, INC. and : KARTIK KRISHNAMURTHY, : : Plaintiffs, : Civil Action No.: 18-2015 (RC) : v. : Re Document No.: 2 : UNITED STATES CITIZENSHIP AND : IMMIGRATION SERVICES, : : Defendant. :

MEMORANDUM OPINION

GRANTING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiff Kartik Krishnamurthy, a citizen of India, has lived in the United States legally

since 2011 as the holder of an H-1B visa, a status granted to foreign citizens employed in

“specialty occupation[s].”

(a)(15)(H)(i)(b). Last year, Mr. Krishnamurthy’s

employer, Plaintiff Stellar IT Solutions, Inc., submitted a petition on his behalf for an extension

of his visa based on a change in his previously approved employment. After Defendant, the

United States Citizenship and Immigration Services (“USCIS”), denied the petition, Stellar IT

filed an appeal with USCIS’s Administrative Appeals Office (“AAO”). But while he awaits a

decision from the AAO, Mr. Krishnamurthy is left without lawful immigration status, and if he

does not leave the country by November 27, 2018, he risks being deemed inadmissible for the

next three years. Mr. Krishnamurthy and Stellar IT therefore initiated this lawsuit, asking the

Court to ultimately set aside USCIS’s denial of the H-1B petition as “arbitrary” and “capricious”

under the Administrative Procedure Act (“APA”).

(2)(A). Presently before the Court, however, is solely their motion for a preliminary injunction that would postpone the

effectiveness of USCIS’s decision and allow Mr. Krishnamurthy to remain in the United States

while the lawsuit is pending.

There are multiple reasons to approach this request with caution: a preliminary injunction

is considered an extraordinary form of relief; judicial intervention is generally disfavored when

administrative remedies have not been exhausted; and arbitrary and capricious review under the

APA is highly deferential to agency decisions. Yet, for the reasons provided below, the Court

concludes that it has jurisdiction to provide relief in this case and that limited judicial

intervention is warranted. Plaintiffs have shown a strong likelihood of success on the merits, as

USCIS’s reasoning for denying the H-1B petition is squarely contradicted by the record and

ignores critical evidence. Meanwhile, if the Court takes no action, Mr. Krishnamurthy is likely

to suffer irreparable harm in that he will be forced to leave the country for an indefinite period of

time.

Accordingly, the Court grants Plaintiffs’ motion in part, and enters an order staying the

effectiveness of USCIS’s denial of the visa petition while Stellar IT’s administrative appeal is

pending. The Court’s order applies retroactively to the date Mr. Krishnamurthy lost lawful

immigration status, and as a result, Mr. Krishnamurthy will retain lawful H-1B status pursuant to

(h)(2)(i)(H). It bears emphasis, however, that the relief the Court orders is

narrow. The Court takes no position on the ultimate merits of the H-1B petition; it merely finds

that USCIS’s articulated reasoning for denying the petition likely does not comply with the APA.

The ordered relief is also limited in duration. The parties are directed to file a joint status report

with the Court within fifteen days of the AAO’s disposition of the administrative appeal. At that

juncture, the Court may reconsider whether judicial relief remains appropriate.

2 II. BACKGROUND

H-1B visas are a form of legal nonimmigrant status, meaning the visa holder is in the

United States temporarily for a particular purpose, like tourism or to attend school. The purpose

of the H-1B program is to permit American employers to temporarily hire foreign citizens to

work in “specialty occupation[s],”

(a)(15)(H)(i)(B), which the Immigration and

Nationality Act (“INA”) defines as those requiring “theoretical and practical application of a

body of highly specialized knowledge, and . . . 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,”

§ 1184(h)(i)(1)(A)–(B).

After they choose to participate in the H-1B program and find a foreign worker they

intend to hire, employers must complete a two-step process. First, they must submit to the

Department of Labor (“DOL”) a Labor Condition Application (“LCA”) identifying the specialty

occupation job being offered and verifying that they will comply with the requirements of the

program, including paying the worker the mandated wage rate. See

(n)(1).

Among other things, the LCA must also state the start and end dates of the foreign worker’s

employment, as well as the “place of employment,” defined as “the worksite or physical location

where the work actually [will be] performed by the H-1B . . . nonimmigrant,”

;

§ 655.730(c)(4)(iv)–(v).

Second, once the DOL certifies the LCA, the employer must then submit the LCA to

USCIS with a Form I-129 petition requesting that the foreign worker—sometimes referred to as

the petition’s “beneficiary”—be classified as an H-1B nonimmigrant worker. See

(h)(4). In this petition, the employer must establish that it has “an employer-employee

relationship” with the beneficiary, “as indicated by the fact that [the employer] may hire, pay,

3 fire, supervise, or otherwise control the work of” the beneficiary.

§ 214.2(h)(4)(ii). The

employer also has the burden of establishing that the position offered to the beneficiary is in fact

a “specialty occupation.” To carry that burden, the employer must show that the position

satisfies at least one of four prerequisites:

(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).

If USCIS grants the petition, the H-1B status is generally valid for three years, but it may

be extended for an additional three years, for a statutory maximum of six years. See Save Jobs

USA v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2015);

(g)(4). This default statutory maximum is subject to exceptions, however, one of which

applies to foreign workers whose Form I-140 Petitions for permanent residency have been

pending for more than 365 days. See Sage IT, Inc. v. Cissna,

(D.D.C.

2018) (citing 21st C. Dep’t of Justice Appropriations Authorizations Act (“DOJ-21”), Pub L. No.

107-273, § 11030A (2002) (codified at

note)). Those individuals may seek

recurring one-year extensions of their H-1B status until “a final decision is made” regarding their

pending permanent residency petitions.

at 205–06 (quoting

note).

4 Mr. Krishnamurthy has sought to avail himself of this exception in the H-1B petition at

the center of this case. As alluded to above, before USCIS denied the present petition, Mr.

Krishnamurthy held H-1B status from 2011 to 2017, hitting the six-year maximum. But the

present petition indicates that Mr. Krishnamurthy filed a labor certification application to support

an I-140 permanent residency petition in 2012, and that a final decision on the application

remains pending. See Compl., Ex. A at 14, ECF No. 1-5. He and Stellar IT therefore contend

that he is eligible for at least one additional year of H-1B status. USCIS does not appear to take

issue with this contention, as it did not mention the statutory time cap in its decision denying the

H-1B petition or in its memorandum in opposition to Plaintiffs’ motion before this Court.

The present H-1B petition is more than a mere request for an extension of status, though.

The petition reflects no change in Mr. Krishnamurthy’s employer, but it does indicate a change

in the previously approved employment, meaning he and Stellar IT wish for him to serve in a

different role with the company.

. Mr. Krishnamurthy’s new position, the petition and

supporting documents explain, would be “Senior Project Manager Information Technology,” to

be performed on-site at Honda North America, for whom Stellar IT would provide services as a

sub-contractor. 1 See, e.g.,

. The position’s responsibilities would include

“[e]stablish[ing] and implementing project management processes and methodologies for the IT

community;” “work[ing] closely across business and IT teams to drive effective selection of

delivery and solutions partners;” and “[d]riv[ing] insightful businesses and financial analytics to

ensure that technology investments are aligned to key company priorities.”

.

1 The H-1B petition indicates that Stellar IT’s client is a company called Sharp Decisions, Inc., who in turn contracts with Honda North America. See, e.g., Compl., Ex. A at 96–97.

5 Stellar IT completed the first step of the approval process for this change in employment:

it obtained DOL certification of the LCA form. See

at 27–29. When it submitted the Form I-

129 petition to USCIS, however, the agency responded by issuing a Request for Evidence

(“RFE”) that asked for additional information regarding the nature of the position and Stellar

IT’s employer-employee relationship with Mr. Krishnamurthy—specifically its right to control

him while he was on-site at Honda. Compl., Ex. B at 2–5, ECF No. 1-6. The RFE, which is

dated January 23, 2018, indicated that Stellar IT had until April 17, 2018 to produce this

information,

, but on March 20, before Stellar IT had replied to the RFE, USCIS went

ahead and denied the petition outright, see Compl., Ex. C, ECF No. 1-7. The agency’s written

decision concluded that Stellar IT had not proven that an employment relationship existed and

that the company had failed to show that the position constituted a specialty occupation.

,

5–6.

Stellar IT then filed a motion with USCIS to reopen and reconsider the decision on April

13. See Compl., Ex. D, ECF No 1-8. With this motion, the company also submitted new

evidence, including contractor agreements, a Q&A document completed by Stellar IT’s president

in response to the RFE, a Stellar IT performance review of Mr. Krishnamurthy, and a letter from

Honda providing additional information about Mr. Krishnamurthy’s position. See

at 27–33,

39–56, 78–80. The Q&A document stated that Stellar IT would have “the ability, as well as the

legal right, to control the manner and means in which [Mr. Krishnamurthy’s] work [wa]s

performed,” and it said that the Stellar IT president would supervise Mr. Krishnamurthy’s

performance by holding weekly phone calls with him.

at 28–29.

The letter from Honda confirmed that Stellar IT would be Mr. Krishnamurthy’s employer

and would have the legal right to control and assign his work, as well as the right to fire him if it

6 so chose. See

. The letter also stated that Mr. Krishnamurthy’s position would be related

to a project called “Interactive Network (iN) Redesign,” a revamp of “a suite of portals allowing

two way communication between Honda and [its] dealerships.

. Mr. Krishnamurthy, the

letter explained, would be “[t]he Senior Project Manager . . . charged with all aspects of

managing this crucial initiative,” a role that “resides within the Information Services Division”

and

involves understanding several parameters in the context of technology for organizational efficiency, information flows and management, project management discipline, ability to understand statistical reports, financial forecast and variance analysis, familiarity with Sarbanes Oxley for IT compliance, understanding of US Generally Accepted Accounting Principles to review software and other contractual arrangements in accordance with US GAAP to identify language that may require non-standard accounting treatment, understanding of supply chain and procurement, with all of the above in the context of large scale Information Technology Project Management.

The letter further noted that the position “requires a Bachelor’s degree at a minimum or a

Master’s degree with course work in Information Technology, Accounting/Finance and Business

Management.”

Despite this new evidence, USCIS again denied Stellar IT’s petition on May 31, 2018, on

the same grounds provided in its March 20 decision—that an employment relationship had not

been proven, and that the position had not been shown to be a specialty occupation. Compl., Ex.

E, ECF No. 1-9. The agency reasoned that, “[w]hile evidence, such as an employment

agreement and performance review form, indicate[d] that [Stellar IT] may be responsible for

[Mr. Krishnamurthy’s] salary and benefits, [it] did not appear to otherwise have the right or

ability to assign, control, review, or supervise [his] work.”

. And “[w]ithout a statement

of work detailing the project’s outline description, duration, role and [Mr. Krishnamurthy’s]

7 duties to demonstrate the end-client will actually use computer occupations for daily

assignments,” the agency concluded that Stellar IT “ha[d] not established that the final duties of

the proffered position [we]re those of a specialty occupation.”

. Nor had Stellar IT

proven that its “client . . . required that the degree . . . be in a specific specialty.”

USCIS’s

decision, by its own terms, made it so Mr. Krishnamurthy was “without lawful status” and left

him “present in the United States in violation of the law.” Compl., Ex. F at 1.

One month later, on June 28, Stellar IT filed an administrative appeal with USCIS’s

AAO. See Def.’s Opp’n to Pl.’s Mot. for Prelim. Inj. (“Def.’s Opp’n”), Ex. A, ECF No. 11-1.

But with the AAO’s decision still pending in late August, Stellar IT and Mr. Krishnamurthy

together filed their complaint in this case, asking this Court to set aside USCIS’s denial of the H-

1B petition. The same day, they filed their Motion for Preliminary Injunction, requesting that the

Court stay the effectiveness of the agency’s action so that Mr. Krishnamurthy may remain in the

United States lawfully while this lawsuit is ongoing. 2

III. JURISDICTION AND LEGAL STANDARD

Before reaching the merits of Plaintiffs’ motion, it is worth briefly addressing the Court’s

jurisdiction. Because Stellar IT’s administrative appeal remains pending, the company did not

exhaust its administrative remedies prior to filing suit. But exhaustion has implications for

2 In their motion, Plaintiffs also seek relief under

, which states that, “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court . . . may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” But as Plaintiffs acknowledge, “[i]t is not clear what the appropriate legal standard is for granting” relief under § 705. Pl.’s Mem. in Support of Mot. for Prelim. Inj. (“Mem. in Support”) at 2, ECF No. 2-1. The Court need not decide the issue here, and for purposes of this motion, the Court assumes it is the same standard as that used for preliminary injunctions. Other courts appear to have taken a similar approach. See, e.g., Bill Barrett Corp. v. U.S. Dep’t of Interior,

, 332 & n.1 (D.D.C. 2009).

8 federal court jurisdiction only “when Congress requires resort to the administrative process as a

predicate to judicial review.” Avocados Plus, Inc. v. Veneman,

(D.C. Cir.

2004). And whether Congress has so acted is “purely a question of statutory interpretation.”

For an exhaustion requirement to be jurisdictional, the statute at issue must “must contain

‘[s]weeping and direct . . . language indicating that there is no federal jurisdiction prior to

exhaustion, or [that] the exhaustion requirement is treated as an element of the underlying

claim.’”

(first alteration in original) (internal quotation marks omitted) (quoting

Weinberger v. Salfi,

(1975)). Here, as USCIS concedes, the INA contains no

such language with respect to agency decisions denying H-1B petitions. See Def.’s Opp’n at 7.

Thus, that Stellar IT’s administrative appeal is unresolved does not deprive the Court of

jurisdiction; jurisdiction is proper under

.

The Court’s jurisdiction is not limited to only claims brought by Stellar IT either.

Though Mr. Krishnamurthy was merely the beneficiary of the H-1B petition that Stellar IT filed

on his behalf, he has standing to bring a judicial challenge to USCIS’s denial of the petition. He

has suffered an injury-in-fact—the loss of his legal nonimmigrant status—that is traceable to

USCIS’s denial of the petition and redressable by a favorable ruling in this Court. See, e.g.,

Lujan v. Defenders of Wildlife,

, 560–61 (1992) (general standing requirements);

Mantena v. Johnson,

(2d Cir. 2015) (holding that foreign citizen had standing

to challenge revocation of I-140 petition that her employer filed on her behalf).

None of this is to say, however, that the ongoing administrative appeal is irrelevant to the

proceedings in this Court. Courts in this circuit recognize a concept known as “non-

jurisdictional exhaustion,” a judicially-created doctrine under which parties are generally

required to exhaust administrative remedies before initiating a case in court. Avocados Plus, 370

9 F.3d at 1247. However, unlike its jurisdictional counterpart, non-jurisdictional exhaustion may

be excused “if ‘the litigant’s interests in immediate judicial review outweigh the government’s

interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to

further.” Id. (quoting McCarthy v. Madigan,

(1992)). And one “commonly

recognized” category of cases where litigants’ interests generally outweigh the interests of

exhaustion is those “where irreparable injury would result unless immediate judicial review is

permitted.” Randolph-Sheppard Vendors of Am. v. Weinberger,

(D.C. Cir.

1986); see also, e.g., Lucas v. District of Columbia,

(D.D.C. 2015). Of

course, as the Court is about to explain, irreparable injury is also an essential component of the

preliminary injunction standard, so, here, the Court need not perform a separate inquiry as to

whether Plaintiffs’ failure to exhaust should be excused. If Plaintiffs make the requisite showing

of irreparable harm for purposes of injunctive relief, they will have necessarily made the

requisite showing for purposes of exhaustion as well.

“A party seeking a preliminary injunction must make a ‘clear showing that four factors,

taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence

of preliminary relief, a balance of the equities in its favor, and accord with the public interest.’”

League of Women Voters of the United States v. Newby,

(D.C. Cir. 2016) (quoting

Pursuing Am.’s Greatness v. FEC,

(D.C. Cir. 2016)). Traditionally, courts in

this circuit have applied a “sliding scale” approach to weighing these four factors, under which

“a strong showing on one factor [can] make up for a weaker showing on another.”

at 7

(quoting Sherley v. Sebelius,

(D.C. Cir. 2011)). But this approach has been

recently called into question, at least to a degree. See, e.g., Sherley, 644 F.3d at 392–93 (citing

Winter v. Natural Res. Def. Council, Inc.,

, 20–24 (2008)). With the validity of the

10 sliding scale approach somewhat in doubt, likelihood of success on the merits and likelihood of

irreparable harm are both particularly important. See Ramirez v. U.S. Immigration and Customs

Enforcement,

(D.D.C. 2018). It is clear that, in order to prevail, the

moving party must, at a minimum, make some showing as to each of those two factors. See, e.g.,

Sherley,

.

IV. ANALYSIS

Plaintiffs’ request for a preliminary injunction here is based on their claim that USCIS’s

denial of the H-1B petition violated the APA. They contend that, if the Court does not intervene

to stay the effectiveness of the agency’s decision while this lawsuit is ongoing, they will both

suffer irreparable injuries: for Mr. Krishnamurthy, the forced, indefinite departure from the

United States, and for Stellar IT, unrecoverable lost profits resulting from its inability to charge

clients for Mr. Krishnamurthy’s services. For the reasons provided below, the Court finds many

of Plaintiffs’ arguments persuasive. The Court concludes that Plaintiffs are likely to succeed on

their claim that USCIS violated the APA in denying the H-1B application, that Mr.

Krishnamurthy would likely suffer significant irreparable harm if the Court did not intervene,

and that the public interest cuts in favor of providing limited judicial relief. The Court thus

grants Plaintiffs’ motion in part, and stays the effectiveness of USCIS’s decision, at least until

the AAO has resolved Stellar IT’s pending administrative appeal. Once a decision is made on

that appeal, the Court may reconsider whether injunctive relief remains appropriate.

A. Likelihood of Success on the Merits

Examination of Plaintiffs’ claim on the merits begins with the text of

(2)(A), the provision of the APA that authorizes courts to “hold unlawful and set aside

agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of

11 discretion, or otherwise not in accordance with law.” “As a general matter, . . . review under

[this] standard is deferential,” Recording Indus. Ass’n of Am., Inc. v. Librarian of Congress,

(D.C. Cir. 2010), and the Court does not substitute its judgment for that of the

agency, Animal Legal Defense Fund, Inc. v. Perdue,

(D.C. Cir. 2017). That

said, the agency’s decision still must be “reasonable and reasonably explained.” ANR Storage

Co. v. FERC,

(D.C. Cir. 2018). The agency “at least ‘must examine’ the

relevant factors . . . and articulate a ‘rational connection’ between the record and [its] decision.”

AT&T, Inc. v. FCC,

(D.C. Cir. 2018) (quoting Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

(1983)). “[I]f the agency has . . .

entirely failed to consider an important aspect of the problem, [or] offered an explanation for its

decision that run counter to the evidence,” its action is generally deemed arbitrary and

capricious. Animal Legal Defense Fund,

(quoting State Farm,

).

Here, Plaintiffs have made a strong showing that USCIS’s explanation for denying the H-

1B petition runs counter to the evidence and resultingly lacks a rational connection with the

record. The agency based its denial on two independent grounds, but neither is immune from

this problem. Indeed, both of the grounds on which USCIS rested its decision are based on

reasoning that is squarely contradicted by the evidence.

1. Employment Relationship

The first basis for the denial of the petition was that Stellar IT had failed to establish an

employer-employee relationship with Mr. Krishnamurthy, as indicated by the ability to “hire

pay, fire, supervise, or otherwise control” him. Compl., Ex. E at 2 (quoting

(H)(4)(ii)(2)). According to USCIS, Stellar IT did “not appear to . . . have the right to

12 assign, control, review, or supervise [Mr. Krishnamurthy’s] work,” and its role appeared limited

to “the functions of a payroll administrator.”

.

In reaching that conclusion, however, USCIS overlooked critical evidence submitted by

Stellar IT. Multiple pieces of evidence indicated that the company would in fact have the “legal

right . . . to control the manner and means in which [Mr. Krishnamurthy’s] work [was]

performed,” Compl., Ex. D at 29 (Q&A document), that the company would “have the right to

assign additional duties” to him,

(position description document), and that the

company’s president would supervise and review his work product through status emails and

weekly phone calls,

(Q&A document). The letter submitted by the end-client, Honda

North America, confirmed these facts as well; that letter stated, among other things, that “[o]nly

[Stellar IT] [would] have the legal right to control the work of Kartik Krishnamurthy as well as

the right to assign Kartik Krishnamurthy to this, or any work site location, and . . . the legal right

to control his activities.”

. USCIS failed to even acknowledge any of this evidence in its

written decision.

The agency did briefly acknowledge that Stellar IT had submitted its employment

agreement with Mr. Krishnamurthy and two past performance review forms, but it reasoned that

this evidence solely “indicate[d] that Stellar IT may be responsible for [Mr. Krishnamurthy’s]

salary and benefits” and that there was no “evidence that [Stellar IT] would evaluate the end-

product of [Mr. Krishnamurthy’s] work.” Compl., Ex. E at 3. These assertions simply are not

accurate. The employment agreement confirmed, among other things, that Stellar IT would have

the legal right to fire Mr. Krishnamurthy. Compl., Ex. D at 68, 71. And the agreement stated

that, “although [Mr. Krishnamurthy] could be called upon to assist the employees of companies

other than [Stellar IT], only [Stellar IT], through [Mr. Krishnamurthy’s] supervisor, [would have]

13 the right to control [his] work . . . on a day-to-day basis.”

. Meanwhile, though

relatively brief, the performance review forms, indicated that Stellar IT’s supervision in the past

had been based on “feedback” regarding “technical aspects” of Mr. Krishnamurthy’s work, as

well as his “management” skills.

. One of the forms also discussed how “[p]roject work

[was] being delivered in scope, ahead of schedule, and within a plan under budget.”

Thus,

both the employment agreement and performance review form went beyond “salary and

benefits.” Rather, they together evidenced how Stellar IT could “hire, pay, fire, supervise, and

control” Mr. Krishnamurthy, which the agency had recognized (correctly) were the indicia of an

employment relationship. See

(h)(4)(ii)(2) (defining, for purposes of the H-1B

program, “United States employer” as one who “may hire, pay, fire, supervise, or otherwise

control the work” of its employees).

Finally, in addition to its reasoning based on supervision and control, USCIS provided

one other rationale for why an employment relationship had not been proven: it said that “[t]here

was no indication that” Mr. Krishnamurthy would be “required to use [Stellar IT’s] proprietary

tool or software to perform his duties.” Compl., Ex. E at 3. This may be true—the record

suggests that the software Mr. Krishnamurthy would assist in programming and designing was to

be Honda’s property. See Compl., Ex. D at 32. But USCIS did not say why this fact mattered,

when, as the agency put it, the “touchstone” of the inquiry was control. Compl., Ex. E at 2. And

in addition to the above-referenced evidence describing Stellar IT’s right to control Mr.

Krishnamurthy, the company also submitted evidence stating it would provide him “with all

instrumentalities and tools required for [his] position, including a computer, if not already

available at the work site.” Compl., Ex. D at 28. In light of all the evidence Stellar IT submitted,

14 USCIS needed to explain why it was dispositive that Mr. Krishnamurthy would be developing

software for Stellar IT’s client rather than Stellar IT itself.

Also, earlier in its written decision, USCIS had said that Stellar IT appeared to be an “IT

consulting” company that did not “produce any software products of [its] own, but rather

contract[ed] with numerous outside companies in order to supply these companies with

employees to fulfill specific staffing needs or complete service contracts.” Compl., Ex. E at 2.

Thus, taken to its logical conclusion, the agency’s emphasis on proprietary tools would mean that

Stellar IT and similar consulting firms that do not develop their own products could never serve

as employers under the H-1B program. Unsurprisingly, USCIS never said that it was going that

far, though. And if its intent was to go that far, the agency should have said so explicitly instead

of basing its decision on the supposed insufficiency of the evidence. Cf. ANR Storage,

(To survive arbitrary and capricious review, an agency must “justify the disparate

treatment of regulated parties that seem similarly situated, and its reasoning cannot be internally

inconsistent.” (citations omitted)).

All told, then, in light of the record that Stellar IT ultimately assembled, Plaintiffs are

likely to succeed in showing that it was not reasonable for USCIS to conclude that Stellar IT had

“not provided sufficient documentary evidence to demonstrate how [it] [would] supervise or

oversee” Mr. Krishnamurthy’s “work while he performe[d] his duties at the client’s site.”

Compl., Ex. E at 3. USCIS was free to take issue with the substance, credibility, or weight of the

evidence submitted and explain why it took such issue, but the agency was not permitted to

pretend the evidence did not exist. See, e.g., Granite Parts Co. v. EPA,

(D.C.

Cir. 2018) (“[A]n agency cannot ignore evidence contradicting its position.” (quoting Butte Cty.

v. Hogen,

(D.C. Cir. 2010)). Because USCIS overlooked significant parts of

15 the record, Plaintiffs are likely to succeed on their claim that the agency acted arbitrarily and

capriciously in determining that no employment relationship existed.

2. Specialty Occupation

USCIS fares no better when it comes to its second basis for denying the H-1B petition:

Stellar IT’s purported failure to show that Mr. Krishnamurthy would be employed in a “specialty

occupation” eligible for H-1B status. As noted earlier, the INA defines “specialty occupation” as

one requiring “theoretical and practical application of a body of highly specialized knowledge,

and . . . 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,”

(h)(i)(1)(A)–(B).

And, as also noted earlier, regulations further provide that,

[t]o 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.

(h)(4)(iii)(A). Of course, these regulations must be read in the context of the

statutory definition, so USCIS “consistently interprets the term ‘degree’” in the regulations “to

mean not just any bachelor’s or higher degree, but one in a specific specialty that is directly

related to the proffered position.” Compl., Ex. E at 4.

16 Here, USCIS appears to have given two reasons for its determination that Mr.

Krishnamurthy’s position did not meet the legal definition of a specialty occupation. First, it

said that, “[w]ithout a statement of work detailing the project’s outline description, duration, role

and [Mr. Krishnamurthy’s] duties to demonstrate the end-client will actually use computer

occupations for daily assignments, [Stellar IT] ha[d] not established that the final duties of the

proffered position [we]re those of a specialty occupation.” Compl., Ex. E at 5. Second, the

agency said that Stellar IT had not shown that its “client ha[d] required that the degree . . . be in a

specific specialty.”

Just as it did with the employment relationship issue, however, USCIS

overlooked critical evidence in reaching both of these conclusions.

Beginning with the first conclusion, USCIS made much of the fact that there was no

“statement of work detailing the project’s outline description, duration, role and [Mr.

Krishnamurthy’s] duties.”

But while there may not have been a formal, contractual

statement of work document, there was evidence in the record that provided the information

USCIS claimed was lacking. With its original H-1B petition, before USCIS issued the RFE,

Stellar IT included its employment agreement with Mr. Krishnamurthy and multiple other

documents, which repeatedly provided a ten-bullet-point list of what his “Functions and Duties”

would be. Compl., Ex. A at 88–89 (employment agreement), see also, e.g.,

(position

itinerary);

at 96–97 (letter from Sharp Decisions, Inc., Stellar IT’s direct client). Some of

these listed responsibilities are admittedly phrased in general terms, but others are rather precise

and appear to require at least some specialized knowledge regarding information technology—

like the duties to “[e]stablish[] and implement[] project management processes and

methodologies for the IT community to ensure projects are delivered on time, within budget,

adhere to high standards, and meet customer expectations,” and to “[d]rive insightful business

17 and financial analytics to ensure that technology investments are aligned to key company

priorities and recommend opportunities for growth.”

Then, in response to the RFE, Stellar IT submitted a letter from Honda North America

that provided additional information. It included a description of the Honda project involved,

“Interactive Network (iN) Redesign,” which is a remodeling of “a suite of portals allowing two

way communication between Honda and [its] dealerships.” Compl., Ex. D at 32. The letter

provided the project’s duration: from the present to March 31, 2021. See

And the letter

explained Mr. Krishnamurthy’s role as “Senior Project Manager . . . charged with all aspects of

managing this crucial initiative.”

The letter explained that the position would “reside[]

within the Information Services Division” and

involve[] understanding several parameters in the context of technology for organizational efficiency, information flows and management, project management discipline, ability to understand statistical reports, financial forecast and variance analysis, familiarity with Sarbanes Oxley for IT compliance, understanding of US Generally Accepted Accounting Principles to review software and other contractual arrangements in accordance with US GAAP to identify language that may require non-standard accounting treatment, understanding of supply chain and procurement, with all of the above in the context of large scale Information Technology Project Management.

In its written decision, USCIS never acknowledged any of this information. The agency

stated only that “[t]he present record does not demonstrate the specific duties the beneficiary

would perform under contract for [Stellar IT’s] clients,” and that the record did not show that Mr.

Krishnamurthy would “actually use computer occupations for daily assignments.” Compl., Ex. E

at 5. Reasonable minds could debate whether the record provided Mr. Krishnamurthy’s specific,

day-to-day responsibilities—to the extent his position would even have typical day-to-day

18 duties—but the record certainly gave USCIS information worthy of discussion and

consideration. The agency acted, however, as if it was completely in the dark regarding Mr.

Krishnamurthy’s position. The agency also neglected to explain why “daily use of computer

occupations” was a prerequisite to acceptance into the H-1B program. And it failed to

acknowledge the information in the record that suggested Mr. Krishnamurthy would in fact

regularly engage with computers—such as his duty to “review software” for compliance with

Generally Accepted Accounting Principles, the need for him to be “familiar[]” with the

Sarbarnes-Oxley Act’s requirements for IT controls, and the fact that his position would operate

“in the context of large scale Information Technology Project Management.” Compl., Ex. D at

32. If USCIS concluded that this evidence was insufficient to demonstrate the need for the

application of “highly specialized” IT knowledge, it needed to explain why.

To be sure, the Court is not saying that the record clearly establishes the existence of a

specialty occupation here. In terms of job duties, the record indicates that the proffered position

would involve an overlap of the management/business sphere—which may not be a “highly

specialized” area—and the information technology sphere—which one would think could be a

“highly specialized” area. Thus, in the Court’s view, the question of whether Mr.

Krishnamurthy’s duties would constitute those of a specialty occupation should largely come

down to whether the IT-related aspects of the position were sufficiently prevalent to require

“theoretical and practical application” of “highly specialized knowledge.”

(h)(i)(1)(A). The problem with USCIS’s decision is that it does not appear to have

engaged with this question at all. Instead, the agency essentially stated that there was no

evidence concerning the position. But, as the Court said above with respect to the employment

relationship issue, the agency cannot base its decision on a supposed lack of evidence when

19 evidence was not actually lacking. To do so is to act arbitrarily and capriciously. See Granite

Parts,

(“[A]n agency cannot ignore evidence contradicting its position.” (quoting

Butte Cty,

)).

USCIS committed similar errors in reaching its second conclusion—that Stellar IT had

failed to prove that Honda required the position-holder to possess “a bachelor’s or higher degree

in [a] specific specialty.” 3

(h)(i)(1)(B). Indeed, on this issue too, the agency

overlooked Honda’s letter, which provided the company’s view of the education necessary for

the position. If the letter does not show that the degree requirement was met, it at least comes

close: it stated that “[t]he knowledge required in this position requires a Bachelor’s degree at a

minimum or a Master’s degree with course work in Information Technology,

Accounting/Finance and Business Management.” Compl., Ex. D at 32. There is admittedly

ambiguity regarding what the phrase “with course work in” means, particularly in the context of

Master’s degrees, which generally involve the study of one subject. A degree in business

management may also not constitute “a specific specialty.” But, again, USCIS never

acknowledged this piece of evidence; its entire discussion of the subject is one sentence: “Nor

have you established that your client has required that the degree must be in a specific specialty.”

Compl., Ex. E at 5. With the above evidence in the record, that one sentence does not constitute

a “reasonable justification” of the agency’s decision. ANR Storage,

.

3 USCIS said that Stellar IT had not established that its “client” “required that the degree . . . be in a specific specialty.” Compl., Ex. E at 5. As noted above, Stellar IT’s client was, as a formal matter, Sharp Decisions, Inc., who in turn contracted with Honda North America. See supra note 1. The Court assumes that USCIS was referencing Honda when it referred to Stellar IT’s “client,” though, because the agency emphasized elsewhere in its written decision that H-1B petitioners must “produce evidence that the proffered position qualifies as specialty occupation on the basis of the requirements imposed by the entities using the beneficiary’s services.” Compl., Ex. E at 6.

20 More importantly, though, Stellar IT did not even need to show that Honda required a

degree in a specific specialty in order to meet its burden on this issue. It was permitted to instead

show that the “degree requirement [wa]s common to the industry in parallel positions among

similar organizations.”

(h)(4)(iii)(A). This in fact was Stellar IT’s primary

argument following the issuance of the RFE. See Compl., Ex. D at 16–19. In support of the

argument, Stellar IT cited the DOL’s Occupational Outlook Handbook (“OOH”), which, in the

RFE, USCIS described as “an authoritative source on the duties and educational requirements of

the wide variety of occupations that it addresses.” Compl., Ex. B at 2, ECF No. 1-6. According

to Stellar IT, Mr. Krishnamurthy’s duties would be akin to those of an “IT project manager,”

which the OOH says typically requires “a bachelor’s degree in computer or information science

and related work experience.” Bureau of Labor Statistics, “Computer and Information Systems

Managers,” Occupational Outlook Handbook (April 13, 2018), https://www.bls.gov/ooh/

management/computer-and-information-systems-managers.htm.

Although this argument was directly responsive to the RFE, USCIS never addressed it in

its second and final written decision denying the H-1B petition. The agency did not once

mention the OOH, much less endeavor to compare, even briefly, Mr. Krishnamurthy’s job

responsibilities to those of a generic “IT project manager.” And it is not the Court’s

responsibility to make that comparison now. At this juncture, what matters is that USCIS

completely ignored Stellar IT’s primary argument, as “an agency’s ‘failure to respond

meaningfully’ to objections raised by a party renders its decision arbitrary and capricious.”

BNSF Ry. Co. v. Surface Transp. Bd.,

(D.C. Cir. 2014) (quoting PSEG Energy

Res. & Trade LLC v. FERC,

(D.C. Cir. 2011)).

21 In sum, as USCIS’s decision is currently articulated, both of its stated reasons for

concluding that Mr. Krishnamurthy’s proffered position did not constitute a “specialty

occupation” are likely invalid under the APA. Indeed, after reviewing the entirety of USCIS’s

decision denying the H-1B petition, the Court has observed a recurring theme: the agency

repeatedly ignored critical evidence and arguments raised by Stellar IT. As a result, a “‘rational

connection’ between the record and the agency’s decision” appears to be lacking. AT&T,

(quoting State Farm,

). Plaintiffs are therefore likely to succeed on

the merits of their claim that USCIS’s action was arbitrary and capricious under the APA. 4

B. Likelihood of Irreparable Harm

Having demonstrated a likelihood of success on the merits, Plaintiffs must next show that

they are likely to suffer “irreparable harm in the absence of preliminary relief.” League of

Women Voters,

(quoting Pursuing Am.’s Greatness,

). In their

attempt to make such a showing, Plaintiffs essentially point to three kinds of injuries they would

purportedly suffer without judicial intervention. They contend (1) that Stellar IT would lose

unrecoverable profits as result of its inability to charge clients for Mr. Krishnamurthy’s services;

(2) that Mr. Krishnamurthy would be forced to leave the country indefinitely due to his loss of

4 USCIS contends that Plaintiffs are unlikely to succeed on the merits because the fact that Stellar IT’s administrative appeal is pending leaves the Court with no “final agency action” for the Court to review. See Mem. in Opp’n at 6;

(providing that “final agency action for which there is no other adequate remedy in a court are subject to judicial review”). However, “[a] party generally need not administratively appeal an action for it to be considered ‘final’ under the APA.” Am. Ass’n of Cosmetology Schs. v. Devos,

(D.D.C. 2017). “This is because, unlike with the doctrine of exhaustion, ‘the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.’”

(quoting Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank,

(1985)). Here, USCIS’s position has inflicted such an injury, as the agency’s decision, by its own terms, renders Mr. Krishnamurthy “without lawful immigration status.” Compl., Ex. F at 1, ECF No. 1-10. That is more than sufficient for purposes of finality.

22 lawful immigration status; and (3) that Mr. Krishnamurthy would lose unrecoverable wages due

to his inability to work. See Pl.’s Mem. in Support of Mot. for Prelim. Inj. (“Mem. in Support”)

at 29–34, ECF No. 2-1. All of these injuries, Plaintiffs correctly observe, would be prevented by

an order staying the effectiveness of USCIS’s order denying the H-1B petition, because, pursuant

to

(h)(2)(i)(H), aliens previously approved for H-1B status are “authorized to

start . . . new employment” if a “nonfrivolous” petition to extend that H-1B status based on the

new employment has been filed on behalf of the alien and remains pending. In other words,

because an order postponing effectiveness of USCIS’s order would revert the H-1B petition to a

pending status, Mr. Krishnamurthy would, by regulation, retain H-1B status, and Stellar IT

would be permitted to employ him.

“[T]he concept of irreparable harm does not readily lend itself to definition.” Ramirez,

(quoting Judicial Watch, Inc. v. Dep’t of Homeland Sec.,

(D.D.C. 2007)). “Nonetheless, the D.C. Circuit has laid out ‘several well known and

indisputable principles’” that guide courts’ analyses.

(quoting Wis. Gas. Co. v. FERC,

, 674 (D.C. Cir. 1985)). “First, the injury must be both certain and great.” Wis. Gas.

Co., 758 F.2d at 674. Second, that injury must be “so ‘imminen[t] that there is clear and present

need for equitable relief to prevent irreparable harm.’” League of Women Voters,

(alteration in original) (quoting Chaplaincy of Full Gospel Churches v. England,

(D.C. Cir. 2006)); see also Ramirez,

. “And, finally, the injury must be

‘beyond remediation.’” Ramirez,

(quoting Chaplaincy of Full Gospel

Churches,

).

Here, the Court finds that Mr. Krishnamurthy will suffer injuries that satisfy these

standards. As a result of USCIS’s decision to deny the H-1B petition, he is without lawful

23 immigration status. By the express terms of the agency’s decision, he is “now present in the

United States in violation of the law.” Compl., Ex. F at 1. And under the INA, if he remains

unlawfully present for more than 180 days, he will be deemed inadmissible for the next three

years.

(a)(9)(B)(i)(I). To prevent that bar from taking effect, Mr. Krishnamurthy

must leave the country by November 27, 2018.

This state of affairs leaves Mr. Krishnamurthy suffering harm that is “certain and great,”

as he is without legal status at this moment and could, by law, be placed in removal proceedings

at any time. Further harm is also “imminent;” if Mr. Krishnamurthy does not voluntarily leave

the country by November 27, he will suffer significant long-lasting legal consequences. Mr.

Krishnamurthy has lived in the United States for the past seven years; if he is forced to leave, he

will be “uprooted from [his] job, home, and community for an undetermined length of time.”

Ruiz-Diaz v. United States, No. C07-1881RSL,

, at *2 (W.D. Wash. Aug. 21,

2008) (holding that “halting the accrual of unlawful presence time and/or unauthorized

employment for . . . class members” would “prevent irreparable harm to class members and their

families”). This is time Mr. Krishnamurthy would never get back, and a disruption to his life

that could never be remedied, even if he were ultimately permitted to return to the United States

after prevailing in this case. The harm is thus “beyond remediation.”

USCIS attempts to downplay these injuries by saying that “the reality is that aliens whose

employment petitions have been denied and subsequently appealed are unlikely to be placed in

removal proceedings while that appeal is pending.” Mem. in Opp’n to Pls.’ Mot. for Prelim. Inj.

(“Mem. in Opp’n”) at 10, ECF No. 11. But this statement is unsupported and speculative. The

statement is not even an empty promise—it is no promise at all. The Court imagines it provides

Mr. Krishnamurthy little solace. USCIS also argues that Mr. Krishnamurthy “always has the

24 option of departing and seeking readmission as a nonimmigrant at a U.S. consulate abroad.”

Mem. in Opp’n at 10. This contention is speculative too, though, and it does nothing to prevent

Mr. Krishnamurthy’s forced, indefinite departure from the country.

Thus, the Court concludes that at least one of the three categories of injuries claimed by

Plaintiffs constitutes irreparable harm warranting preliminary relief. Having made that

determination, the Court need not, and does not, address the other two kinds of claimed

injuries—Stellar IT’s alleged lost profits and Mr. Krishnamurthy’s lost income. Stellar IT and

Mr. Krishnamurthy seek identical relief, and each independently have standing here. The Court

therefore does not need to find that Stellar IT is itself suffering irreparable injuries in order to

issue the requested injunction. Mr. Krishnamurthy’s injuries are sufficient.

C. Balancing the Equities and the Public Interest

Generally, Plaintiffs would need to make two additional showings in order to establish

that a preliminary injunction is appropriate. The first would be a “balance of the equities in

[their] favor,” League of Women Voters,

, meaning a showing that an injunction

would “not substantially injure other interested parties,”

at 12 (quoting Chaplaincy of Full

Gospel Churches,

). The second would be a showing that an injunction

“accord[s] with the public interest.”

at 6 (quoting Pursuing Am.’s Greatness,

). These two considerations merge into one, however, when the government is the non-

moving party. See Ramirez,

(citing Nken v. Holder,

(2009)). The only remaining question here, then, is whether any significant “public

consequences” would result from the issuance of an injunction.

at 32 (quoting Winter,

).

25 Plaintiffs contend that no such consequences would result because an order staying the

effectiveness of USCIS’s decision would “literally require[] the [agency] to do nothing.” Mem.

in Support at 35. In response, USCIS argues that “the public interest favors applying federal

[immigration] law[s] correctly,” Mem. in Opp’n at 11 (quoting Small v. Avanti Health Sys., LLC,

(9th Cir. 2011)), and disfavors judicial “micro-managing [of] a

governmental entity’s vested control over a statutory program,”

According to the agency,

“Plaintiffs’ requested relief in this case would require [it] to take affirmative action that is

contrary to governing law and the agency’s congressionally-mandated authority.”

The Court finds that Plaintiffs have the better of these arguments. As an initial matter,

immigration laws are not the only congressional mandates at play. The public interest favors

compliance with the APA too. Cf. Ramirez,

(“The public interest surely

does not cut in favor of permitting an agency to fail to comply with a statutory mandate.”) (citing

Jacksonville Port Auth. v. Adams,

(D.C. Cir. 1977)). And though the Court is

reluctant to take any action that could be seen as judicial micro-managing of an agency’s

responsibilities, it also agrees with Plaintiffs that the issuance of an injunction here would not

require USCIS to take any affirmative action. Because

(h)(2)(i)(H) permits Mr.

Krishnamurthy to retain lawful status and begin new employment while the petition to extend his

H-1B status is pending, the agency does not need to do anything to provide Plaintiffs the relief

they seek. Once the Court orders that the effectiveness of the agency’s decision is stayed, the

regulation does the rest of the work.

Finally, it bears emphasis that the Court has done nothing to interfere with USCIS’s

“broad discretion to regulate the employment of H-1B temporary workers,” Mem. in Opp’n at

11, as the Court has taken no position on whether Plaintiffs’ H-1B petition should ultimately be

26 granted. Rather, the Court has merely concluded that USCIS’s explanation for denying the

petition likely does not comply with the APA. If the Plaintiffs ultimately prevail on their claim,

the Court is likely to remand to the agency for reconsideration of the petition. The Court is also

mindful that Stellar IT’s administrative appeal remains unresolved. The AAO should be

permitted to rule on that appeal before further judicial action takes place—both as a matter of

respect for the agency’s decisionmaking process, see Avocados Plus,

, and

because the AAO’s decision might moot or otherwise alter the merits of Plaintiffs’ claim under

the APA. Thus, at this time, the Court stays the effectiveness of USCIS’s decision only until

thirty days after the AAO has disposed of the administrative appeal. The Court’s order is

retroactive to May 31, 2018, the date of USCIS’s final decision, so for legal purposes, Mr.

Krishnamurthy was never without lawful immigration status, and the 180-day clock for

(a)(9)(B)(i)(I) never began to run. Pursuant to

(h)(2)(i)(H), he retains H-

1B status as long as the Court’s order remains in effect. Once the AAO has issued a decision,

the parties are directed to file a joint status report with the Court within fifteen days, in which

they will state their respective positions regarding how this lawsuit should proceed.

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction is GRANTED

IN PART. The effectiveness of USCIS’s decision denying Stellar IT’s H-1B petition is stayed

until thirty days after the AAO has decided Stellar IT’s administrative appeal. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: November 19, 2018 RUDOLPH CONTRERAS United States District Judge

27