United States District Court, D. Nevada
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT (ECF NOS. 16, 20)
P. GORDON, UNITED STATES DISTRICT JUDGE
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,  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.
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.
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 prior to
accepting Cash Factory's employment offer. CAR 104.
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.
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.
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.
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.
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.
APA Standard of Review
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
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 ...