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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13015
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-00127-RWS
VIRAJ, LLC,
RAMESH BABU NUKATHOTI,
Plaintiffs-Appellants,
versus
U.S. ATTORNEY GENERAL,
ALEJANDRO MAYORKAS,
(Ali) Director, U.S. Citizenship
and Immigration Services,
SALLY QUILLIAN YATES,
U.S. Attorney United States Attorney’s
Office Northern District of Georgia,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 25, 2014)
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Before ED CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:
Viraj, LLC appeals from the district court’s grant of summary judgment on
its Administrative Procedure Act and Equal Protection claims following the denial
of the alien worker visa petition that Viraj had filed on behalf of Ramesh
Nukathoti. That petition was denied on the grounds that Nukathoti did not have
the required advanced degree and Viraj failed to establish that it could pay the
proffered wage.
Viraj contends the determination that Nukathoti lacks an “advanced degree”
was arbitrary and capricious. It argues that because Nukathoti had completed five
years of college in India to receive his master’s degree, which was more than the
four years typically required in the United States for a bachelor’s degree, he has an
advanced degree and the visa should have been granted. Viraj also contends that it
is able to pay the proffered wage and that it was unduly burdened by a request for
evidence that would establish its ability to pay. Finally, Viraj contends that the
district court erred in denying its equal protection claim.
I.
Viraj is a software development and IT consulting company. In 2007 it filed
an “Application for Permanent Employment Certification” with the Department of
Labor for a software engineer position. That application listed Indian citizen
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Ramesh Nukathoti as the person who would fill that position if Viraj’s certification
were approved and a visa granted. After certification was approved, Viraj filed
with the United States Citizenship and Immigration Services (USCIS) an I-140
Immigration Petition for Alien Worker, seeking a visa for Nukathoti. The alien
worker visa petition listed the proposed employment as a software engineer
position at an annual salary of $50,000. In support of its petition, Viraj submitted
copies of Nukathoti’s three-year bachelor of science and two-year master’s degrees
from a university in India. USCIS denied the petition, finding that Nukathoti did
not meet the educational requirements.
Viraj appealed that decision to the Administrative Appeals Office (AAO),
which agreed that Nukathoti had failed to meet the educational requirements. The
AAO also found that Viraj had failed to establish that it could afford to pay the
proffered salary because it had not provided the evidence that had been requested.
Furthermore, it had filed 70 alien worker petitions and hundreds of nonimmigrant
petitions and yet its current petition claimed that it had only “35+” employees. The
AAO stated that “[t]he competing obligations stemming from simultaneously
pending immigrant, and nonimmigrant petitions, are relevant to whether the job
offer to [Nukathoti] is even bona fide.”
Viraj filed a lawsuit under the Administrative Procedure Act, 5 U.S.C.
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§ 702, against the Director of USCIS, the United States Attorney General, and the
United States Attorney for the Northern District of Georgia (collectively, the
government), challenging the denial of its alien worker visa petition. Viraj also
raised an Equal Protection claim. The district court granted summary judgment in
favor of the government, and this is Viraj’s appeal.
II.
We review de novo the district court’s grant of summary judgment, applying
the same legal standards that bound the district court. Shuford v. Fid. Nat’l Prop.
& Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
Under the Administrative Procedure Act, agency actions, findings, and
conclusions can be set aside if only they are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” or “unsupported by substantial
evidence.” 5 U.S.C. § 706(2)(A), (E). That standard is “exceedingly deferential,”
Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996), and when
applying it, this Court has “very limited discretion to reverse an agency decision.”
Leal v. Sec’y, U.S. Dep’t of Health and Human Servs., 620 F.3d 1280, 1282 (11th
Cir. 2010).
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III.
An alien may eligible for a visa based on employment in the United States as
an advanced degree professional if certain requirements are met. See 8 U.S.C.
§ 1153(b)(2)(A). First, the employer who intends to hire the alien must file an
alien labor certification application with the Department of Labor, which Viraj did.
8 U.S.C. § 1182(a)(5); 20 C.F.R. § 656.17(a)(1).
After the Department of Labor certifies the application, the employer must
file with USCIS an I-140 visa petition, which Viraj did on Nukathoti’s behalf. 8
U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(c) & (k)(1). The alien named in the visa
petition must be “a professional holding an advanced degree,” 8 C.F.R.
§ 204.5(k)(3), which is defined as “any United States academic or professional
degree or a foreign equivalent degree above that of a baccalaureate,” id.
§ 204.5(k)(2). USCIS interprets that regulation to mean that an alien who does not
have “at least a U.S. bachelor’s degree or a foreign equivalent degree” does not
meet the advanced degree requirement for an alien worker visa. See U.S.
Citizenship & Immigration Servs., Dep’t of Homeland Sec., Adjudicator’s Field
Manual § 22.2(j)(1)(B).
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In the present case USCIS’s denial of Viraj’s alien worker visa petition on
the ground that Nukathoti did not possess an advanced degree was not arbitrary,
capricious, or an abuse of discretion. Because Congress did not define “advanced
degree,” see 8 U.S.C. § 1153(b)(2)(A), USCIS had the authority to interpret the
statutory language and develop regulations to fill the gap. See Wright v. Everson,
543 F.3d 649, 654 (11th Cir. 2008). USCIS’s regulation defining “advanced
degree” as “any United States academic or professional degree or a foreign
equivalent degree above that of a baccalaureate,” 8 C.F.R. § 204.5(k)(2), is not
contrary to the plain language of the statute. See id.
In interpreting that regulation, it is reasonable and within USCIS’s authority
to conclude that Nukathoti’s three-year bachelor of science degree was not
equivalent to a United States bachelor’s degree and that his two-year master of
science degree was not equivalent to a United States master’s degree. See Matter
of Shah, 17 I. & N. Dec. 244, 245 (BIA 1977) (determining that a three-year Indian
bachelor’s degree was not the equivalent of a United States bachelor’s degree,
which usually requires four years of study). Viraj argues that “above . . . a
baccalaureate” degree, 8 C.F.R. § 204.5(k)(2), means any master’s degree that is
achieved after more than four years of study. Although that is one way to
reasonably interpret the regulation, it fails to establish that USCIS’s interpretation
is plainly erroneous or inconsistent with the regulation. See Sierra Club v.
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Johnson, 436 F.3d 1269, 1274 (11th Cir. 2006) (“An agency’s interpretation of its
own regulations is controlling unless plainly erroneous or inconsistent with the
regulation.”) (quotation marks omitted).
Nor did the agency’s decision to rely on the Electronic Database for Global
Education (EDGE) and to discount the letters from professors and academic
credential evaluations that Viraj submitted make the denial of the visa petition
arbitrary or capricious. 1 Deciding which materials to rely on was within the
agency’s discretion, and it was entitled to give the letters and evaluations less
weight in light of the fact that they differed from the information provided in
EDGE, which is a respected source of information. See Matter of Caron Int’l, Inc.,
19 I. & N. Dec. 791, 795 (BIA 1988) (“[S]ince the [agency] is responsible for
making the final determination regarding a beneficiary’s eligibility for the benefit
sought, where an opinion is not in accord with other information or is in any way
questionable, the [agency] is not required to accept or may give less weight to that
evidence.”).
1
The district court described EDGE as “a web-based resource for the evaluation of
foreign education credentials created by the American Association of Collegiate Registrars and
Admissions Officers.” It noted USCIS’s observation that, “unlike other foreign credential
evaluators, ‘[a]uthors for EDGE are not merely expressing their personal opinions. Rather, they
must work with a publication consultant and a Council Liaison with AACRAO’s National
Council on the Evaluation of Foreign Educational Credentials.’” The district court pointed out
that EDGE had determined that a master of science degree from India is comparable to a United
States bachelor’s degree.
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Because it was not arbitrary or capricious for USCIS to deny Viraj’s alien
worker visa petition on the ground that Nukathoti lacked the necessary educational
qualifications, we need not address the issues raised regarding Viraj’s ability to pay
the proffered wage. See 8 C.F.R. § 204.5(g)(2) & (k)(3) (providing that in order
for an I-140 alien worker visa petition to be granted, the employer must establish
both that the alien it seeks to employ is an advanced degree professional and that it
has the ability to pay the proffered wage).2
IV.
We review de novo constitutional challenges to agency orders. Toro v.
Sec’y, U.S. Dep’t of Homeland Sec., 707 F.3d 1224, 1230 (11th Cir. 2013). Under
rational basis review, an agency’s interpretation of its own regulation violates the
Equal Protection Clause only if the interpretation is not rationally related to any
legitimate governmental objective. See Cook v. Wiley, 208 F.3d 1314, 1323 (11th
Cir. 2000); see also Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1271
(11th Cir. 2004) (“[F]ederal classifications that distinguish among groups of aliens
are subject only to rational basis review.”). To have a rational basis, a
classification distinguishing among groups of aliens “must be reasonable, not
arbitrary, and must rest upon some ground of difference having a fair and
2
Viraj also argues that the denial of its visa petition was arbitrary or capricious because it
was inconsistent with prior unpublished USCIS decisions, but those decisions have no
precedential value and are not a proper basis for denying USCIS the deference it is due. See,
e.g., De la Rosa v. U.S. Att’y Gen., 579 F.3d 1327, 1336 (11th Cir. 2009); Chan v. Reno, 113
F.3d 1068, 1073 (9th Cir. 1997).
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substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike.” Fernandez-Bernal v. U.S. Att’y Gen., 257
F.3d 1304, 1312 (11th Cir. 2001) (quoting Stanton v. Stanton, 421 U.S. 7, 14, 95
S.Ct. 1373, 1377 (1975)).
Viraj contends that its visa petition was denied because of “cultural
discrimination,” and it asserts that USCIS probably would not reject a two-year
master’s degree issued by a United States university if that degree were preceded
by the same three-year Indian bachelor’s degree that Nukathoti had. That
contention is unavailing. Viraj presented evidence of four Indian students who
have United States master’s degrees preceded by three-year Indian bachelor’s
degrees. Nukathoti does not have those credentials. Viraj has provided no
evidence that visa petitions for aliens with Indian master’s degrees were denied
based on race or national origin or on any basis other than the legitimate
determination that the foreign degree was not equivalent to an advanced degree, as
required by the regulation. “[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005). The district court properly granted
summary judgment to the government on Viraj’s equal protection claim.
AFFIRMED.
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