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LLC v. Cissna

United States District Court, D. Nevada

July 3, 2018

2233 PARADISE ROAD, LLC DBA CASH FACTORY USA, Plaintiff,
v.
L. FRANCIS CISSNA AND JOHN F. KELLY, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NOS. 16, 20)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff 2233 Paradise Road, LLC d.b.a. Cash Factory USA (Cash Factory) sues defendants L. Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS) and John F. Kelly, former Secretary of Homeland Security, [1] under the Administrative Procedure Act (APA). Cash Factory sought to hire Songhua Hu as its new Chief Operating Officer (COO). Id. Because Hu is a Chinese national, Cash Factory applied for an “H-1B visa” on Hu's behalf. USCIS denied the petition, so Cash Factory appealed to the Administrative Appeal Office (AAO), which affirmed the denial of the petition.

         Cash Factory now seeks review of the agency's decision. It claims that USCIS acted arbitrarily and capriciously by denying the petition based on an impermissibly narrow reading of the law. ECF No. 16 at 19-24. USCIS responds that the AAO's decision was reasonable in light of the inconsistencies and discrepancies in the record, and that Cash Factory failed to prove that Hu's position required a specialty degree. ECF No. 20 at 12-19. Both parties move for summary judgment. Because USCIS did not arbitrarily and capriciously deny Cash Factory's visa petition, I deny Cash Factory's motion and grant USCIS's motion.

         I. BACKGROUND

         Cash Factory is a Nevada limited liability company that also does business in California, Missouri, Texas, and Utah. Certified Administrative Record (CAR) 100. Its business activities include payday loans, title loans, installment loans, check cashing, money orders, prepaid debit and credit cards, prepaid phone cards, and gold purchasing. Id. Cash Factory seeks to hire Hu as its COO. Id. Hu is a Chinese national who worked for consumer lending company Santander Consumer USA under an H-1B visa[2] prior to accepting Cash Factory's employment offer. CAR 104.

         On January 30, 2015, Cash Factory filed a petition with USCIS to hire Hu and extend his H-1B status for three years. CAR 78-105. H-1B status is available for a “specialty occupation, ” so the employer must present evidence demonstrating that the position requires a “specialty degree” or its equivalent. 8 U.S.C. § 1101(a)(15)(H)(i)(b). Cash Factory's petition included the COO's job description and list of duties, as well as proof of Hu's qualifications. CAR 102-105. Cash Factory showed that Hu has a doctorate in Philosophy and a Master of Management and Business Administration (MBA) with focuses in finance, entrepreneurship, and marketing. CAR 104. To support its argument that an MBA is a “specialty degree” under the INA, Cash Factory relied on the Department of Labor's Occupational Outlook Handbook's definition of a “top executive, ” which recognizes that “many” top executives have a bachelor's or master's degree in business administration. CAR 103. Cash Factory further explained that Hu has prior relevant work experience at Google, Inc., McKinsey & Company, Enova Financial, Think Finance, and Santander Consumer USA. Id.

         In response to Cash Factory's petition, USCIS issued a Request for Evidence (RFE), which included a detailed list of additional evidence that would satisfy the criteria to qualify the position as a specialty occupation. CAR 255-258. Cash Factory responded to the RFE with a revised list of job duties and additional documentation, including job descriptions of similar jobs in the lending industry, biographies of executive employees at other lending companies, and an organizational chart detailing Hu's proffered place in the organization. CAR 264-267. Cash Factory also asserted that the company required a bachelor's degree or equivalent for executive officers and that the COO position required an MBA degree. Id.

         USCIS denied the petition because Cash Factory failed to produce sufficient evidence to establish that the COO position required a specialty degree. CAR 71-74. Cash Factory appealed that decision to the Administrative Appeals Office (AAO), which affirmed USCIS's denial. CAR 63-67. The AAO found that the record contained so many inconsistencies and discrepancies that the agency could not determine whether the COO position met the regulatory requirements for a specialty occupation. CAR 61. The AAO also agreed with USCIS's determination that an MBA was a “general-purpose” degree that did not qualify as a “specialty degree” under the applicable regulations. CAR 61-63. Cash Factory moved to reopen and reconsider the decision but the AAO denied the motion. CAR 2, 13.

         Cash Factory filed this lawsuit under the APA seeking review of the agency's decision. ECF No. 16 at 1-2. It now moves for summary judgment, arguing that its COO position qualifies as a specialty occupation under 8 U.S.C. § 1184(h)(2) (which defines “specialty occupation” for H-1B visas) and 8 C.F.R § 214.2(h)(4)(iii), and that the government acted arbitrarily and capriciously by denying Cash Factory's petition. ECF No. 16 at 7. Cash Factory asks me to vacate the AAO's decision and either grant the petition or remand this matter with instructions to grant the petition and reinstate Hu's lawful status in the U.S. retroactively to January 30, 2015. Id. at 33.

         USCIS responds that Cash Factory cannot meet its burden to show that the AAO's decision was “arbitrary and capricious” or contrary to law. ECF No. 20 at 1-2. USCIS also moves for summary judgment, arguing that it considered all of the submitted evidence and made a rational decision that was consistent with established policy and precedent. Id. at 23.

         II. DISCUSSION

         A. APA Standard of Review

         Final agency actions are subject to judicial review under the APA. 5 U.S.C. § 704. An AAO decision on a visa petition is a final decision. Herrera v. U.S. Citizenship & Immigration Servs., 571 F.3d 881, 885 (9th Cir. 2009). Because the AAO's denial of Cash Factory's appeal was the agency's final decision, I review only that decision.[3]

         Under the APA, I review the agency's decision using an abuse of discretion standard. Kazarian v. U.S. Citizenship & Immigration Servs., 580 F.3d 1030, 1033 (9th Cir. 2009). I may reverse an administrative agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). I may not reverse an agency action when the agency is able to show a “rational connection between the facts found and the conclusions made.” Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953, 960 (9th Cir. 2005) (quoting Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs,384 F.3d 1163, 1170 (9th Cir. 2004)). My role is not to substitute my own judgment for an agency's. Cal. Wilderness Coal. v. U.S. Dept. of Energy, 631 F.3d 1072, 1084 (9th Cir. 2011). Rather, I should “affirm the agency action if a reasonable basis exists for its decision.” Id. (quoting Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv.,475 F.3d ...


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