United States District Court, N.D. California
For CareMax, Inc., Sen Guo, Plaintiffs: Love Melville Macione, LEAD ATTORNEY, Schein & Cai LLP, San Jose, CA.
For Eric Holder, United States Attorney General, Kathy Baran, Director, California Service Center United States Citizenship and Immigration Services, Rand Beers, Acting Secretary of Homeland Security, Alejandro Mayorkas, Director, United States Citizenship and Immigration Services, Defendants: Victor M. Mercado-Santana, LEAD ATTORNEY, US, Civil Division, Washington, DC.
ORDER GRANTING SUMMARY JUDGMENT
CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE.
In this declaratory relief action, Plaintiffs ask the Court to determine, in the context of an administrative agency's decision not to grant a nonimmigrant visa, whether a non-citizen employee's job constitutes a " specialty occupation" under the Immigration and Nationality Act (" INA" ) and if so, whether the non-citizen employee meets the minimum qualifications for employment in said " specialty occupation." The distinction between specialty occupation and non-specialty occupation is important because the INA authorizes temporary visas for qualified nonimmigrant aliens who are sponsored by an employer to perform a " specialty occupation." Health services corporation CareMax and its proposed public relations specialist Sen Guo (collectively, " Plaintiffs" ) argue that the government defendants (" Defendants" ) have incorrectly relied on a determination by United States Citizenship and Immigration Services (" USCIS" ) that Guo's position as an entry-level public relations specialist is not a " specialty occupation," and that even if it is, Guo does not meet the minimum qualifications for employment in a specialty occupation. Because USCIS's decision was not arbitrary, capricious, or an abuse of discretion, the Court GRANTS Defendants' Motion for Summary Judgment and DENIES Plaintiffs' Motion for Summary Judgment.
Plaintiff/petitioner CareMax, Inc. is an adult health care service provider based in San Rafael, California that employs forty-two people and reports annual proceeds of more than $2 Million. Certified Administrative Record (" A.R." ) (dkt. 18) at 6. On April 30, 2012, CareMax filed a petition with USCIS to obtain an H-1B nonimmigrant specialty worker visa for Sen Guo, a Chinese national, so that he could work as an entry-level Public Relations Specialist for a term of three years. Id. at 4, 6. Guo has a Degree in " English" from the Civil Aviation University of China. A.R. at 254-57. Guo also attended other institutions of higher-education, including Northeastern University in Massachusetts, and the Monterey Institute and Dominican University in California, but did not provide transcripts or diplomas to USCIS.
Plaintiffs' Motion for Summary Judgment (" P. MSJ" ) (dkt. 25) at 15; see A.R. at 13-14. It is not clear based on the administrative record what Guo studied at these U.S. schools or what degrees, if any, he received.
On October 16, 2012, USCIS issued a Request For Evidence for information related to Guo's employment, including a more detailed job description, information about CareMax, and evidence that the job was a " specialty occupation" within the meaning of the INA. See id. at 6, 213-18. Plaintiffs responded with substantial amounts of evidence on January 8, 2013. See id. at 6, 151-212. USCIS denied CareMax's petition on February 8, 2013. Id. at 6. Plaintiffs filed a complaint for declaratory and injunctive relief in this Court on May 29, 2013. See generally Compl. (dkt. 1).
USCIS later reopened Plaintiffs' visa petition, sent a new Request For Evidence, and the parties agreed to stay the district court proceedings. See A.R. at 6; Stipulation to Stay (dkt. 14). Plaintiffs submitted evidence on October 1, 2013. Id. at 6. Plaintiffs' submissions were substantial, and included both new evidence and evidence from previous submissions. See id. at 6-8. Plaintiffs submitted a wide range of information about CareMax, Guo, Guo's education at the Civil Aviation University of China, the public relations profession, credential evaluations written by evaluators at the European-American University and Career Consulting International, and job listings for public relations positions at other companies.
USCIS again denied Plaintiffs' petition on November 8, 2013. A.R. at 4. On November 15, 2013, the 120-day stay expired, and Plaintiffs filed an Amended Complaint. See Amended Compl. (dkt. 16); see also Stipulation to Stay. Defendants filed their Motion for Summary Judgment on January 27, 2014. See generally Def. MSJ. Plaintiffs filed their own Motion for Summary Judgment approximately one month later. See generally P. MSJ. Defendants filed a response to Plaintiffs' Motion on March 10, 2014. See generally Def. Response.
II. LEGAL STANDARD
The INA permits qualified non-citizen temporary workers to work in the United States if they are sponsored by an employer in a " specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b). A specialty occupation requires " (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." 8 U.S.C. § 1184(i)(1). The Code of Federal Regulations provides a non-exhaustive list of fields that may satisfy the specialty occupation requirement. See 8 C.F.R. § 214.2(h)(4)(ii) (listing fields
such as accounting, law, mathematics, engineering, medicine, and others that are presumed " specialty occupations" ).
The employer can also establish that the employee performs a specialty occupation by showing that the position meets one of four criteria:
1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry ...