UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RELX, INC. d/b/a/ LexisNexis USA,

and

SUBHASREE CHATTERJEE

Plaintiffs, Case No. 19-cv-1993

v.

KATHY A. BARAN, In her official Capacity, Director of the California Service Center, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, ET AL. Defendants.

MEMORANDUM OPINION

Plaintiffs RELX, Inc., d/b/a LexisNexis USA (“LexisNexis”)

and Ms. Subhasree Chatterjee, a Data Analyst for LexisNexis,

bring this action against defendant Kathy Baran, Director of the

California Service Center, U.S. Citizenship and Immigration

Services (“USCIS”), U.S. Department of Homeland Security

(“DHS”), and other government officials and entities, under the

Administrative Procedure Act,

, et seq. Plaintiffs

allege that defendants violated the Administrative Procedure Act

when they denied LexisNexis’ H–1B petition on behalf of Ms.

Chatterjee. Pending before the Court are plaintiffs’ motion for summary judgment and defendants’ motion to dismiss. Having

considered the submissions of the parties, the administrative

record, the relevant law, and the arguments of the parties

during the motion hearing, the court DENIES defendants’ motion

to dismiss and GRANTS plaintiffs’ motion for summary judgment.

I. Background

A. Statutory and Regulatory Background

The H–1B visa program permits employers to temporarily

employ foreign, nonimmigrant workers in specialty occupations.

See

(a)(15)(H). Before obtaining a visa, an

employer must obtain certification from the Department of Labor

that it has filed a labor condition application in the specific

occupational specialty.

(h)(4). The employer

must then file an H–1B visa petition on behalf of the alien

worker, which shows that the proffered position satisfies the

statutory and regulatory requirements.

(c). A

specialty occupation is defined as an occupation that requires

“theoretical and practical application of a body of highly

specialized knowledge” and “attainment of a bachelor’s or higher

degree in a specific specialty (or its equivalent) as a minimum

for entry into the occupation in the United States.”

(i)(1). USCIS regulations have further defined four

criteria, each sufficiently independent, to determine whether a

2 profession qualifies as a “specialty occupation.” Under the

regulation an occupation qualifies if:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organization 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)(1)–(4). The petitioner bears the

burden of proving that his or her occupation falls within one of

the four categories.

.

B. Factual Background

Plaintiff LexisNexis is a Delaware corporation with its

principal place of business in New York, NY. LexisNexis is an

umbrella corporation with several key markets: Legal,

Scientific, Medical, Risk, and Exhibitions. LexisNexis USA is an

unincorporated division of RELX, Inc. Declaration of Leticia

Andrade (“Andrade Decl.”), ECF No. 4–8 ¶ 3. LexisNexis is a

3 provider of comprehensive information and business solutions to

professionals in a variety of areas – legal, risk management,

corporate, government, law enforcement, accounting, and

academic.

Plaintiff Subhasree Chatterjee is a citizen of India,

currently residing in Raleigh, NC. Declaration of Subhasree

Chatterjee (“Chatterjee Decl.”), ECF No. 4-9 ¶ 2. Ms. Chatterjee

holds a Master of Science in Business Administration, with a

focus on Business Analytics, from the University of Cincinnati,

located in Ohio, USA. Administrative Record (“AR”), ECF No. 7–4

34-35. Prior to earning her Masters degree and her work for

LexisNexis in 2017, Ms. Chatterjee earned a Bachelor of

Technology degree in Computer Science and Engineering from West

Bengal University of Technology in Kolkata, India. Chatterjee

Decl., ECF No. 4–8 ¶ 7. Ms. Chatterjee also has extensive

practical experience in data analytics from four years of

working for Infosys in Pune, India and one year working in data

analytics for Evalueserve Inc. in Raleigh, NC in the field of

Analytics Delivery after earning her undergraduate degree.

Chatterjee Decl., ECF No. 4–8 ¶ 7; Andrade Decl., ECF No. 4–9 ¶

9.

Ms. Chatterjee is currently employed by LexisNexis and

works as a Data Analyst in LexisNexis’s engineering Center for

Excellence. Andrade Decl. No. 4-9 ¶ 8. The LexisNexis Data

4 Analyst position consists of several technical responsibilities.

These responsibilities include “analyzing, investigating, and

hypothesizing data to effectively communicate with internal and

external customers, management and functional areas by

presenting problem resolution, product information . . . work

with Designers and Researchers, embedded in product development

teams, to help them understand customer behavior . . .

analyz[ing], investigat[ing], negotiat[ing] and resolv[ing]

problems to help inform product design decisions.” AR 32.

Ms. Chatterjee is currently in the United States on a F-1

student visa with STEM OPT (Optional Practical Training) that

expires on August 3, 2019, AR 37-45, after which she will not be

permitted to work in the United States. Ms. Chatterjee is the

subject of the H-1B petition LexisNexis filed and she is

directly impacted by the agency decision denying her an H-1B

visa.

C. Procedural History

On April 12, 2018, LexisNexis filed a Petition for a

Nonimmigrant Worker, Form I-129, on behalf of Ms. Chatterjee, a

citizen of India. AR 86. LexisNexis petitioned to classify Ms.

Chatterjee in H-1B status so that she could continue to work for

LexisNexis as a Data Analyst.

In support of its petition,

LexisNexis supplied a Labor Condition Application (“LCA”) (Case

Number I-200-18060-605447), certified by the U.S. Department of

5 Labor for the validity period of September 2, 2018 through

September 1, 2021, AR 26-31; a letter from Leticia Andrade,

Immigration Compliance Specialist, AR 32-33; background

information about LexisNexis, id.; copies of Ms. Chatterjee’s

Master’s degree from the University of Cincinnati and official

transcript, AR 34-35; a copy of her F-1 student visa and work

authorization, AR 36-45; and a copy of the biographic page of

Ms. Chatterjee’s unexpired passport, AR 48-49.

The government responded to the petition with a “Request

For Evidence” (“RFE”) related to whether the Data Analyst

position was a specialty occupation. AR 52–53. Among the

categories of information requested were (1) “A detailed

statement to explain the beneficiary’s proposed duties and

responsibilities; indicate the percentage of time devoted to

each duty; and state the educational requirements for these

duties”; (2) “Job postings or advertisements showing a degree

requirement is common to the industry in parallel positions

among similar organizations”; and (3) expert opinions supported

by “[t]he writer’s qualifications as an expert; [h]ow the

conclusions were reached; and [t]he basis for the conclusions

supported by copies or citations of any materials used.” AR 52.

On June 18, 2018, LexisNexis responded to defendants’ RFE

with (a) a supplemental letter from Leticia Andrade, Immigration

Compliance Specialist, AR 55-57; (b) an organizational chart, AR

6 58; (c) six job announcements for Data Analyst positions, from

six different employers, each showing that the Data Analyst

positions required at least a Bachelor’s degree in STEMfields

such as business analytics, statistics, mathematics, economics

or operations research, AR 59-64; and (d) an expert opinion from

Dr. Gerhard Steinke, Professor of Management and Information

Systems at Seattle Pacific University, AR 65-68. Through its

June 2018 submission, LexisNexis provided evidence on only three

out of the four

(h)(4)(iii)(A) grounds for

“specialty occupation.”

On September 13, 2018, the Government denied the petition

filed by LexisNexis on behalf of Ms. Chatterjee. AR 86-94. The

government stated that LexisNexis had not shown that the

position is a specialty occupation.

LexisNexis moved for

reconsideration, AR 97, and the government granted the motion

for reconsideration on January 17, 2019. Six days later, the

government issued a final decision denying the petition for the

same reasons as the initial denial. AR 1–7.

On July 3, 2019, plaintiffs filed suit seeking relief under

the APA. See Compl., ECF No. 1. The Court placed this matter on

an expedited briefing and hearing schedule – consolidating the

plaintiffs’ motion for preliminary injunction with a decision on

the merits - in light of the fact that Ms. Chatterjee’s current

status expires on August 3, 2019. See Minute Order dated July

7 12, 2019. The parties were instructed to file cross-motions for

summary judgment with the plaintiffs’ motion due on July 22,

2019. On July 18, 2019, shortly before the plaintiffs filed

their opening motion, defendants sua sponte reopened Ms.

Chatterjee’s petition. Defendants did not serve plaintiffs with

notice that the petition was reopened on that day, nor did they

provide a reason for the alleged reopening.

On July 22, 2019, plaintiffs moved for summary judgment

seeking an order from this Court directing USCIS to grant Ms.

Chatterjee’s H1-B petition and place Ms. Chatterjee on H1-B visa

status. Pls’ Mot. for Summ. J., ECF No. 7. Four days later,

defendants filed a motion to dismiss in light of the fact that

it reopened Ms. Chatterjee’s case. Defs.’ Mot. to Dismiss, ECF

No. 12. Attached to its motion to dismiss, the defendants

provided a “Request For Evidence” detailing the evidence needed

to reconsider plaintiffs’ case. See Defs.’ Request for Evidence,

ECF No. 12-2. Plaintiffs filed an opposition to the motion to

dismiss shortly after. Pls. Opp’n, ECF No. 13. After directing

defendants to file a reply to plaintiffs’ opposition, the Court

held a motion hearing on August 1, 2019, and August 2, 2019.

After hearing argument the Court issued an oral ruling granting

plaintiffs’ motion for summary judgment and denying defendants

motion to dismiss with a Memorandum Opinion to follow.

8 II. Legal Standards

A. Motion to Dismiss

Defendants have moved to dismiss this case for lack of

subject-matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). A Rule 12(b)(1) motion to dismiss for lack

of jurisdiction may be presented as a facial or a factual

challenge. “A facial challenge attacks the factual allegations

of the complaint that are contained on the face of the

complaint, while a factual challenge is addressed to the

underlying facts contained in the complaint.” Al-Owhali v.

Ashcroft,

(D.D.C. 2003)(internal

quotations and citations omitted). When a defendant makes a

facial challenge, the district court must accept the allegations

contained in the complaint as true and consider the factual

allegations in the light most favorable to the non-moving party.

Erby v. United States,

(D.D.C. 2006).

With respect to a factual challenge, as here, the district court

may consider materials outside of the pleadings to determine

whether it has subject matter jurisdiction over the claims.

Jerome Stevens Pharmacy, Inc. v. FDA,

(D.C.

Cir. 2005). The plaintiff bears the responsibility of

establishing the factual predicates of jurisdiction by a

preponderance of evidence. Erby,

.

9 Defendants also moved to dismiss the complaint for failure

to state a claim under Federal Rule of Civil Procedure 12(b)(6).

In order to survive a Rule 12(b)(6) motion, the plaintiff must

present factual allegations that are sufficiently detailed “to

raise a right to relief above the speculative level.” Bell Atl.

Corp. v. Twombly,

(2007). In satisfying this

requirement that it “state a claim to relief that is plausible

on its face,”

, a complaint cannot survive a motion to

dismiss through only “a formulaic recitation of the elements of

a cause of action.”

. As with facial challenges to

subject matter jurisdiction under Rule 12(b)(1), a district

court is required to deem the factual allegations in the

complaint as true and consider those allegations in the light

most favorable to the non-moving party when evaluating a motion

to dismiss under Rule 12(b)(6). Trudeau v. FTC,

(D.C. Cir. 2006). But where a complaint pleads facts that

are “merely consistent with” a defendant’s liability, it “stops

short of the line between possibility and plausibility of

entitlement to relief.” Twombly,

. Accordingly, a

“court considering a motion to dismiss can choose to begin by

identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth. While

legal conclusions can provide the framework of a complaint, they

10 must be supported by factual allegations.” Ashcroft v. Iqbal,

(2009).

B. Motion for Summary Judgment

Although plaintiffs have moved for summary judgment, the

parties seek review of an administrative decision under the APA.

See

. Therefore, the standard articulated in

Federal Rule of Civil Procedure 56 is inapplicable because the

Court has a more limited role in reviewing the administrative

record. Wilhelmus v. Geren,

(D.D.C.

2011)(internal citation omitted). “[T]he function of the

district court is 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.” See Sierra Club v. Mainella,

(D.D.C. 2006)(internal quotation marks and

citations omitted). “Summary judgment thus serves as the

mechanism for deciding, as a matter of law, whether the agency

action is supported by the administrative record and otherwise

consistent with the APA standard of review.” Wilhelmus,

(citations omitted).

Under the APA, a court must set aside an agency action that

is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.”

(2)(A); Tourus

Records, Inc. v. DEA,

(D.C. Cir. 2001). Review

of agency action is generally deferential, Blanton v. Office of

11 the Comptroller of the Currency,

(D.C. Cir.

2018)(citing Safari Club Int’l v. Zinke,

(D.C. Cir. 2017)), as long as the agency examines the relevant

facts and articulates a satisfactory explanation for its

decision including a “rational connection between the facts

found and the choice made.” Motor Vehicle Mfr.’s Ass’n v. State

Farm Mut. Auto. Ins. Co.,

(1983)(citation

omitted); Iaccarino v. Duke,

(D.D.C.

2018). The “scope of review under the arbitrary and capricious

standard is narrow and a court is not to substitute its judgment

for that of the agency.” Iaccarino,

(internal quotation marks omitted)(citing State Farm,

).

Although the scope of review is deferential, “courts retain

a role . . . in ensuring that agencies have engaged in reasoned

decision making.” Iaccarino,

(citing

Judulang v. Holder,

(2011)). The requirement

that an agency action not be arbitrary and capricious includes a

requirement that the agency adequately explain its result.

at 177 (citing Public Citizen, Inc. v. FAA,

(D.C. Cir. 1993)). An agency’s failure to set forth its reasons

for a decision constitutes arbitrary and capricious action, and

a court must undo the agency action.

(citing Amerijet Int’l

Inc. v. Pistole,

(D.C. Cir. 2014)).

12 III. Analysis

A. Defendants’ Motion to Dismiss

Defendants move to dismiss under both Rules 12(b)(1) for

lack of subject matter jurisdiction and 12(b)(6) for failure to

state a claim. The Court addresses each claim in turn.

1. Rule 12(b)(1): Subject Matter Jurisdiction

Defendants argue that the agency’s recent action in

attempting to reopen plaintiffs’ petition deprives the Court of

jurisdiction because the claims are no longer ripe. See Defs.’

Mot. to Dismiss, ECF No. 12-1 at 9–10. 1 The ripeness doctrine

requires courts to consider two factors, “the fitness of the

issue for judicial decision and the hardship to the parties of

withholding court consideration.” Abbott Laboratories v.

Gardner,

(1967) abrogated on other grounds

by Califano v. Sanders,

(1997); Friends of

Keeseville, Inc. v. FERC,

, 234–35 (D.C. Cir. 1988).

“This court has long understood the approach in Abbott Labs to

incorporate a presumption of reviewability.” Sabre, Inc. v.

Dep't of Transp.,

(D.C. Cir. 2005)(citing

Nat'l Automatic Laundry Cleaning Council v. Shultz,

(D.C. Cir. 1971)). A determination of ripeness

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 13 “requires the court to balance its interest in deciding the

issue in a more concrete setting against the hardship to the

parties caused by delaying review.” Webb v. Department of Health

and Human Services,

(D.C. Cir. 1982).

In striking the balance in this case, the Court finds that

it weighs in favor of adjudication. First, after review of the

record there is no serious contention that “further

administrative action is needed to clarify the agency's

position,” in this case. See Friends of Keeseville, Inc.,

. Nor can it be said that” the issues involved

require further factual development if they are to be

susceptible to judicial resolution.”

The defendants have

issued an RFE requesting nearly identical information as it did

when it last reviewed the petition. See supra at 20–21.

Therefore, determinations as to the reviewability and the

propriety of the agency's prior orders would involve an

examination of facts already in the administrative record. Id.

(“The issues presented will grow no more ‘concrete’ or less

‘abstract’ with the passage of time.”).

The second prong, hardship to the parties caused by

delaying review, weighs heavily in favor of adjudication.

Defendants do not contest the fact that Ms. Chatterjee’s F-1

visa will expire on August 3, 2019. Upon expiration she will

lose her job and be required to leave the country for an

14 extended period of time, results that would be avoided with an

adjudication in her favor. In other words, Ms. Chatterjee’s

status would be significantly affected by the Court’s refusal to

adjudicate her claim. In light of the significant hardship she

would face, and the fact that the issues do not require further

factual development, the Court holds that this case is ripe for

adjudication.

Defendants next argue that the Court lacks jurisdiction

because plaintiffs failed to exhaust administrative remedies.

See Defs.’ Mot. to Dismiss, ECF No. 12-1 at 10–11. That argument

fails because there is no exhaustion requirement for plaintiffs’

claim. APA claims are not subject to exhaustion requirements

unless specifically required by statute or regulation. See Darby

v. Cisneros,

(1993)(“[W]here the APA applies,

an appeal to ‘superior agency authority’ is a prerequisite to

judicial review only when expressly required by statute or when

an agency rule requires appeal before review and the

administrative action is made inoperative pending that review.”

(emphasis in original)); CSX Transp., Inc. v. Surface Transp.

Bd.,

, 1078 (D.C. Cir. 2009)(“[A]bsent a statutory

or regulatory requirement, courts have no authority to require

parties to exhaust administrative procedures before seeking

judicial review.”). There is no requirement that plaintiffs seek

an appeal of a denied visa before seeking judicial review.

15 Accordingly the government’s motion to dismiss for lack of

subject-matter jurisdiction is DENIED.

2. Rule 12(b)(6): Failure to State a Claim

Defendants next argue that plaintiffs have failed to state

a claim because the agency has reopened the plaintiffs’ petition

and therefore there is no final agency action for the Court to

review. See Defs.’ Mot. to Dismiss, ECF No. 12-1 at 7–9. Section

704 of the APA states in relevant part that “[a]gency action

made reviewable by statute and final agency action for which

there is no other adequate remedy in a court are subject to

judicial review.”

. Because the APA provides a

limited cause of action to review “final agency action” without

such agency action a plaintiff would not have a claim under the

APA. See Reliable Automatic Sprinkler Co. v. Consumer Prod.

Safety Comm'n,

(D.C. Cir. 2003)(“If there was

no final agency action . . . there is no doubt that appellant

would lack a cause of action under the APA.”).

The parties agree that defendants’ initial denial of the

H1-B petition was a final agency action. Where the parties

disagree is whether the defendants attempt to reopen the

petition after the commencement of this law suit nullifies the

prior final agency action. Generally, an agency’s decision to

reopen a case may render a final agency action nonfinal. See

Ahlijah v. Nielsen,

, at *2 (D. Md. July 10,

16 2018)(citing cases). However, when there is evidence that the

government has reopened the case not to reconsider new evidence

but rather to delay a decision on the H-1B petition, or when

there is no indication as to what new information the agency can

review, courts have held that reopening a case does not render a

final agency action nonfinal. See Mantena v. Hazuda,

, at *6 (S.D.N.Y. Aug. 7, 2018); cf. Sackett v. E.P.A.,

, 127 (2012)(stating that the “mere possibility that

an agency might reconsider in light of ‘informal discussion’ and

invited contentions of inaccuracy does not suffice to make an

otherwise final agency action nonfinal.”). Courts have looked at

factors such as whether the agency has sought additional

information, whether it identified issues with the original

decision or areas for further evidentiary development, and

whether the agency requested any additional evidence. See

Mantena,

, at *6 (citing cases). Although not a

high bar, the question for the Court is whether the agency re-

opened the case in name only.

In this case, the plaintiffs have sufficiently demonstrated

that the agency’s attempt to reopen plaintiffs’ petition does

not render the agency decision nonfinal. Three facts unique to

this case mandate this conclusion. First, the agency failed to

follow the regulation that provides it with authority to reopen

a petition.

(a)(5)(ii) grants an agency the

17 authority to sua sponte reopen or reconsider a previously final

action. The regulation allows a service officer “on his or her

own motion” to reopen a proceeding if the officer provides the

affected parties 30 days after the service of a motion to submit

a brief. The regulation states as follows:

(5) Motion by Service officer—

(i) Service motion with decision favorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision in order to make a new decision favorable to the affected party, the Service officer shall combine the motion and the favorable decision in one action.

(ii) Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30–day period.

(a)(5)(ii). Defendants have provided the

declaration of Carolyn Nguyen, USCIS Section Chief in the

Employment Branch, in support of its motion to dismiss stating

that on “July 18, 2019, pursuant to 8 Code of Federal

Regulations (C.F.R.) § 103.5 (a)(5)(ii), [USCIS] reopened and

vacated the previous decision. [USCIS] is preparing a new RFE to

18 be issued shortly.” Declaration of Carolyn Nguyen, (“Nguyen

Decl.”), ECF No. 17-1 ¶ 9.

The record in this case is devoid of any indication that

defendants filed a motion to reopen the petition as the plain

language of the regulation mandates. See

(a)(5)(ii). Plaintiffs were first notified that the

petition was reopened on July 22, 2019, the date the plaintiffs’

motion for summary judgment was due. Indeed, Ms. Nguyen’s

declaration in support of the motion to dismiss merely states

that the petition has been reopened and the agency vacated the

previous decision, but does not state that a motion was filed by

a service officer or that the motion was served upon the

affected parties with notice that the parties were afforded 30

days to submit a brief. See generally, Nguyen Decl., ECF No.

17-1. The government’s failure to follow its own regulations in

reopening the petition casts doubt on whether the reopening of

the petition was valid. Cf. Ravulapalli v. Napolitano, 840 F.

Supp 2d 200, 205 (D.D.C 2012)(stating agency’s reopening and

granting of petition was afforded the presumption of regularity

when agency provided declaration that it acted “in accordance

with USCIS policies and procedures”).

Second, the government has failed to proffer any reason for

why it reopened the petition other than that it was in response

to this lawsuit. In German Language Center v. United States, the

19 court held that there was nothing improper about an agency’s

decision to reopen the case when an affidavit provided by the

agency explained that the decision to reopen was made in light

of a recent unpublished opinion from the Administrative Appeals

Office.

, at *3 (S.D. Tex. Sept. 27, 2010). Under

such circumstances, the court held, it was not improper for the

agency to reopen the case for additional consideration of recent

authority.

In contrast, here, the affidavit defendants

provided did not give any reason for the reopening of the case

other than that the affiant was “making [the] declaration in

support of the United States’ legal defense of the APA action”

in this case. ECF No. 17-1 ¶ 2. The declaration fails to provide

any reason for why the agency reopened the petition, it just

simply states that it did.

.

Third, and perhaps most critical, the government’s request

for evidence is nearly identical to its prior request; and fails

to request evidence that it was not provided during its original

review of the petition. Courts that have held a reopening of an

agency decision rendered a prior decision nonfinal have focused

on whether new evidence was requested. For example, in True

Capital Mgmt., LLC v. U.S. Department of Homeland Security, the

court ruled that because the agency requested additional

information to clarify an inconsistency in the petitioner’s

immigration forms the prior decision was rendered nonfinal.

20

, at *4 (N.D. Cal. June 20, 2013)(stating that

reopening the petition rendered agency action nonfinal because

the agency “[did] appear to seek additional information.”).

In this case, the agency has sought no new evidence. For

example, the new request for evidence requests a detailed

statement related to “the actual duties the beneficiary will

perform, indicat[ing] the percentage of time devoted to each

duty; explain[ing] how the educational requirements relate to

these duties.” Defs.’ Mot. to Dismiss, ECF No. 12-1, Ex. A. p.5.

The prior RFE required a detailed statement related to “the

beneficiary’s proposed duties and responsibilities, indicat[ing]

the percentage of time devoted to each duty; and stat[ing] the

educational requirements for these duties.” AR 52. The new RFE

requests “any evidence you believe that a bachelor’s or higher

degree or its equivalent is normally the minimum requirement for

entry into the particular position.” Defs.’ Mot. to Dismiss, ECF

No. 12-1, Ex. A. p.6. The previous RFE requested “any evidence

you believe will establish that the position qualifies as a

specialty occupation.” A.R. 52. 2

Although not mirror images, the information requested is

the same. Plaintiffs have already provided this information in

2 These are just two examples. Indeed some requests not only ask for the same information but use identical wording. Compare Defs.’ Mot. to Dismiss, ECF No. 12-1, Ex. A. p. 7 (requesting letters from professional associations) with AR 52 (same). 21 response to the defendants prior RFE. See AR 8–49; 54–85, 95–

188. It is unclear what purpose, if any, is served by requesting

and reviewing the exact same information, and expecting such

review to lead to a different result. Because the agency has

failed to request any new information when it attempted to

reopen the petition, the Court finds the circumstances of the

reopening highly suspect and contrary to the regulations.

Under the circumstances presented in this case, defendants’

failure to follow its own regulation related to reopening the

case, defendants’ failure to request any new evidence for the

agency to consider, and defendants’ failure to provide any

reason for why the agency chose to reopen the case, the Court is

left with no choice but to conclude that the agency has reopened

the case in name only. See Mantena,

, at *6.

Therefore, the Court finds the agency action to be final.

Accordingly the government’s motion to dismiss for failure to

state a claim is DENIED.

B. Plaintiffs’ Motion for Summary Judgment

Plaintiffs are entitled to the relief sought if the

defendants’ denial of the H1-B petition was arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.

(2)(A). Plaintiffs argue that

defendants acted arbitrary and capricious in concluding that

there was not a specialty occupation.

22 A “specialty occupation” is “an occupation that requires

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.”

(i)(1). By regulation, to qualify as a specialty

occupation, the position must meet at least one of four

criteria: (1) a baccalaureate or higher degree 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 the position is so

unique or complex that only an individual with a degree can

perform it; (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 the knowledge

required to perform the duties is usually associated with

attainment of a baccalaureate degree or higher.

(h)(4)(iii)(A).

The January 23, 2019 decision denying the petition

explained that the four criteria mentioned in the regulation are

necessary but not sufficient to establish that a position is a

specialty occupation. AR 2. The decision explains that in order

to read the statute and regulations together “USCIS consistently

interprets the term ‘degree’ in the criteria [set forth in] 8

(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.”

The decision goes on to

discuss the regulatory criteria and attempts to explain why the

plaintiffs’ failed to prove, by the preponderance of the

evidence, that the criteria were met.

3–6.

The decision first determined that plaintiffs failed to

prove by the preponderance of the evidence that a bachelor’s

degree or higher is normally the minimum requirement for entry

into a Data Analyst position. AR 3. The decision focused on the

US Department of Labor’s Occupational Outlook Handbook (“OOH”),

a document that the USCIS “often looks to . . . when determining

whether a job qualifies as a specialty occupation” because the

OOH “provides specific and detailed information regarding the

educational and other requirements for occupations.”

After

explaining that the Data Analyst category was part of the

computer occupations category, the agency determined that the

“OOH does not contain detailed profiles for the computer

occupations category.”

The agency recognized OHH also

incorporates the Department of Labor (“DOL”) O*NET Program which

is “the nation’s primary source for occupational information.”

AR 3–4; 129. However, the agency determined that a “reference in

the USDOL’s O*NET, standing alone, fails to establish that an

occupation is a specialty occupation.” AR 3–4.

24 What the agency overlooked, however, is that plaintiffs did

not just make a general reference to O*NET. Rather, plaintiffs

stated that the Data Analyst position is aligned with the DOL’s

“Business Intelligence Analyst” position for which there is a

detailed description that is directly relevant to the inquiry of

whether the position is specialized. See AR 56. The explicit

O*NET cross reference to Business Intelligence Analyst (SOC Code

15-1199.08) contained in the OOH listing for “Computer

Occupations, All Other” defines the technological and

educational requirements for the position and explains that

“[m]ost of these occupations require a four-year bachelor's

degree, but some do not” with further detail that more than 90%

of Business Intelligence Analyst positions require at least a

bachelor’s degree. See AR 134.

The OOH itself also explains that the typical entry level

education for “Computer occupations, all other” is a “Bachelor’s

Degree.” ECF No. 7-1, Ex. A. Since the OOH indeed does provide

specific detailed information regarding educational requirements

for the computer operations category, and the detailed

information states most of the occupations require a four-year

bachelor’s degree, the agency’s rationale was both factually

inaccurate and not supported by the record.

The agency was also arbitrary and capricious when it

determined that the degree requirement was not common to the

25 industry in parallel positions among similar organizations. AR

4–5. The agency stated that factors often considered include

“whether the OOH reports that the industry requires a degree;

whether the industry’s professional associations have made a

degree a minimum entry requirement; or whether letters or

affidavits from firms or individuals in the industry attest that

such firms routinely employ and recruit only degreed

individuals.” AR 4. As for the first factor, the Court has

already explained that the agency ignored OOH’s information

indicating that the industry requires a bachelor’s degree. And

as for the last requirement, plaintiffs submitted an expert

opinion from Professor Gehrard Steinke which attested that

“firms similar to the petitioner’s routinely recruit and employ

only degreed individuals in the specific specialty.” AR 70. The

agency failed to address either the information found in OOH or

the expert opinion.

Furthermore, plaintiffs provided several job postings for

Data Analysts positions, all of which required, at minimum, a

bachelor’s degree. AR 59-64. The agency discounted this evidence

because “multiple fields of educations appear to be acceptable

for entry into the position of Data Analyst, according to the

job postings [plaintiffs] previously submitted.” AR 3–4. In

other words, because different types of degrees would allow

entry into Data Analyst position, the agency believed, a Data

26 Analyst position may never be specialized.

(“since

multiple fields of education are suitable for the position . . .

it is not one that is qualified as a specialty occupation”).

This position is untenable. There is no requirement in the

statute that only one type of degree be accepted for a position

to be specialized. The statute and regulations simply require

that a “position actually requires the theoretical and practical

application of a body of highly specialized knowledge, and the

attainment of a bachelor’s or higher degree in the specific

specialty [is a] minimum requirement for entry into the

occupation.” AR 3. In other words, if the position requires the

beneficiary to apply practical and theoretical specialized

knowledge and a higher education degree it meets the

requirements. Nowhere in the statute does it require the degree

to come solely from one particular academic discipline. As other

courts have explained “[d]iplomas rarely come bearing

occupation-specific majors. What is required is an occupation

that requires highly specialized knowledge and a prospective

employee who has attained the credentialing indicating

possession of that knowledge.” See Residential Fin. Corp. v.

U.S. Citizenship & Immigration Servs.,

(S.D. Ohio 2012)(stating that when determining whether a

position is a specialized occupation “knowledge and not the

title of the degree is what is important.”); see also Tapis

27 Int'l v. I.N.S., 94 F. Supp.2 d 172, 175–76 (D. Mass.

2000)(rejecting a similar agency interpretation because it would

preclude any position from satisfying the “specialty occupation”

requirements where a specific degree is not available in that

field).

The record in this case establishes that Ms. Chatterjee

holds a Master of Science in Business Administration, with a

focus on Business Analytics, from the University of Cincinnati,

located in Ohio, USA. AR 34-35. While obtaining her Masters

degree, her course work included stimulation modeling, stat

computing, probability models, data mining, graduate case

studies, forecasting methods, and data management. AR 35.

Further, the record here explains Ms. Chatterjee’s specific job

duties. The bulk of her work, seventy percent, is as follows:

Use SQL to extract data to describe user behavior on

LexisAdvance, accessing the correct data sources, checking data

integrity, and ensuring overall data quality (30%); Use R,

Python, or other statistical programming software to program

analyses and generate reports leveraging proper statistical

techniques such as ANOVA, t-tests, linear models, or logistic

regression so that decisions on A/B test results are made with

full statistical confidence (20%); Perform exploratory data

analyses using tools like Rand Python; techniques such as

descriptive statistics, k-means clustering, hierarchical

28 modeling, and dimensionality reduction (20%). AR 55-56. In light

of both her education and her specific duties, the record

indicates that a minimum requirement for entry into the position

of a Data Analyst is the specialized course of study in which

Ms. Chatterjee engaged.

In short, the LexisNexis position was a distinct occupation

which required a specialized course of study, notwithstanding

the fact that the study included several specialized fields. Ms.

Chatterjee completed that specialized course of study in the

relevant fields and LexisNexis has employed her exactly because

she has the specialized skills to perform the duties of the

position and requisite educational requirements. The mountain of

evidence submitted by LexisNexis to support the petition more

than meets the preponderance of the evidence standard. The

agency’s decision was not “based on a consideration of the

relevant factors” and was “a clear error of judgment.” See

Citizens to Preserve Overton Park v. Volpe,

(1971). USCIS acted arbitrarily, capriciously, and abused its

discretion in denying employer's petition for H–1B visa status

on behalf of Ms. Chatterjee. Accordingly, the plaintiffs’ motion

for summary judgment is GRANTED.

IV. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is

DENIED and plaintiffs’ motion for summary judgment is GRANTED.

29 Accordingly, the defendants shall grant plaintiffs’ petition and

is FURTHER ORDERED to change Ms. Chatterjee's status to H–1B

nonimmigrant. An appropriate Order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge August 5, 2019

30