FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INNOVA SOLUTIONS, INC., No. 19-16849
Plaintiff-Appellant,
D.C. No.
v. 5:17-cv-03674-
VKD
KATHY A. BARAN, Director of
California Service Center, U.S.
Citizenship and Immigration OPINION
Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Virginia K. DeMarchi, Magistrate Judge, Presiding
Argued and Submitted November 20, 2020
Pasadena, California
Filed December 16, 2020
Before: Richard A. Paez and John B. Owens, Circuit
Judges, and Morrison C. England, Jr., * Senior
District Judge.
Opinion by Judge Owens
*
The Honorable Morrison C. England, Jr., United States Senior
District Judge for the Eastern District of California, sitting by
designation.
2 INNOVA SOLUTIONS V. BARAN
SUMMARY **
Immigration
The panel reversed the district court’s grant of summary
judgment for the U.S. Citizenship and Immigration Services
(USCIS), and remanded, concluding that USCIS’s denial of
an H-1B temporary worker visa was arbitrary and
capricious.
Innova Solutions, Inc. (Innova) wanted to hire a citizen
of India with a bachelor’s degree as a computer programmer
and petitioned for an H-1B “specialty occupation” visa on
his behalf. Under the relevant regulation, Innova had to
establish that a “baccalaureate or higher degree or its
equivalent is normally the minimum requirement for entry
into the particular position.” Although the Department of
Labor’s Occupational Outlook Handbook (OOH) provides
that “[m]ost computer programmers have a bachelor’s
degree,” and that a bachelor’s degree is the “[t]ypical level
of education that most” computer programmers need,
USCIS concluded that “the OOH does not state that at least
a bachelor’s degree or its equivalent in a specific specialty is
normally the minimum required.”
The panel concluded that USCIS’s denial of the H-1B
visa petition was arbitrary and capricious. First, the panel
explained that there is no daylight between typically needed,
per the OOH, and normally required, per the regulation, and
that USCIS’s suggestion that there is “space” between these
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
INNOVA SOLUTIONS V. BARAN 3
words is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise. The
panel also explained that the regulation is not ambiguous and
deference to such an implausible interpretation is
unwarranted.
Next, the panel concluded that USCIS’s decision was
arbitrary and capricious because it misrepresented the OOH
by stating that it provides that most computer programmers
have a bachelor’s or associate’s degree when, in fact, the
OOH provides that most have a bachelor’s degree.
Finally, the panel concluded that USCIS’s decision was
arbitrary and capricious because USCIS failed to consider
key evidence, namely, the OOH language providing that a
“bachelor’s degree” is the “[t]ypical level of education that
most workers need to enter this occupation.”
COUNSEL
David A. Wulkan (argued), Jonathan R. Sturman, and David
M. Sturman, Law Office of David M. Sturman A.P.C.,
Encino, California, for Plaintiff-Appellant.
Elizabeth D. Kurlan (argued), Assistant United States
Attorney; Sara Winslow, Chief, Civil Division; David L.
Anderson, United States Attorney; United States Attorney’s
Office, San Francisco, California; Joseph H. Hunt, Assistant
Attorney General; William C. Peachey, Director; Glenn M.
Girdharry, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Defendant-Appellee.
4 INNOVA SOLUTIONS V. BARAN
Mary Kenney (argued), Washington, D.C.; Leslie K. Dellon,
Washington, D.C.; as and for Amicus Curiae American
Immigration Council.
OPINION
OWENS, Circuit Judge:
Innova Solutions, Inc. (Innova), a technology company
that provides services including cloud storage and data
analytics, appeals from the district court’s denial of its
challenge to the U.S. Citizenship and Immigration Services’
(USCIS) refusal to issue an H-1B temporary worker visa.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse
and remand.
I. BACKGROUND
Like many leading American technology companies,
Innova needs computer programmers. Innova wanted to hire
Dilip Dodda, a citizen of India with a bachelor’s degree, to
work as one for a three-year period.
Innova petitioned for an H-1B “specialty occupation”
visa so Dodda could reside and work in the United States.
See 8 U.S.C. § 1101(a)(15)(H)(i)(b). Under the relevant
statutory and regulatory regime, 1 Innova had to establish that
1
In October 2020, the Department of Homeland Security and
USCIS promulgated an interim final rule that amends the regulatory
criteria for qualifying as a specialty occupation. See Strengthening the
H-1B Nonimmigrant Visa Classification Program, 85 Fed. Reg. 63,918
(Oct. 8, 2020). The new rule does not apply to pending or previously
resolved visa petitions. Id. at 63,918, 63,924. The parties agree the
amended language does not apply in this case.
INNOVA SOLUTIONS V. BARAN 5
the position required “theoretical and practical application of
a body of highly specialized knowledge” and that “[a]
baccalaureate or higher degree or its equivalent is normally
the minimum requirement for entry into the particular
position.” 2 See 8 U.S.C. § 1184(i)(1); 8 C.F.R.
§ 214.2(h)(4)(iii)(A)(1).
USCIS relied on the Department of Labor’s
Occupational Outlook Handbook (OOH) as an
“authoritative source” to determine whether Dodda’s
position “normally” requires a bachelor’s degree. 3
According to the OOH, “[m]ost computer programmers have
a bachelor’s degree in computer science or a related subject;
however, some employers hire workers with an associate’s
degree.” The OOH “Quick Facts” table for computer
programmers similarly provided that a bachelor’s degree is
the “[t]ypical level of education that most workers need to
enter this occupation.”
Despite the OOH’s clear statements that “most”
computer programmers have a bachelor’s degree and that a
2
The implementing regulation provides three other independently
sufficient pathways for demonstrating that a position is in a “specialty
occupation.” See 8 C.F.R. § 214.2(h)(4)(iii)(A)(2)–(4). For example, a
position also qualifies as a “specialty occupation” if the employer
normally requires a degree for the position. See id.
§ 214.2(h)(4)(iii)(A)(3). Only the first criterion is at issue on appeal.
3
The OOH provides hundreds of occupational profiles
describing “the typical duties performed by the occupation” and “the
typical education and training needed to enter the occupation,”
among other information. U.S. Bureau of Labor Statistics,
Occupational Information Included in the OOH (Sept. 1, 2020),
https://www.bls.gov/ooh/about/occupational-information-included-in-t
he-ooh.htm. We refer throughout this opinion to the 2016–2017 version
of the OOH that USCIS cited in its decision.
6 INNOVA SOLUTIONS V. BARAN
bachelor’s degree is the “typical” level of education
“need[ed]” for the position, USCIS concluded that Innova
had failed to show that a computer programmer qualified as
a specialty position:
While the OOH indicates that most computer
programmers obtain a degree (either a
bachelor’s or an associate’s degree) in
computer science or a related field, the OOH
does not state that at least a bachelor’s degree
or its equivalent in a specific specialty is
normally the minimum required for entry into
the occupation. Further, the OOH also
indicates that employers value computer
programmers who have experience, which
can be obtained through internships. 4
Innova challenged USCIS’s denial of the visa in district
court under section 706 of the Administrative Procedure Act,
contending that the decision was arbitrary and capricious.
The district court rejected that argument and granted
summary judgment for USCIS, concluding that “the OOH
description for the Computer Programmer occupation does
not describe the normal minimum educational requirements
of the occupation in a categorical fashion” because “at least
some Computer Programmer positions may be performed by
someone with an associate’s degree.” Innova then appealed.
4
From 2000 to 2017, USCIS followed agency guidance (referred to
as the Way Memo) that “we will generally consider the position of
programmer to qualify as a specialty occupation” under the first
regulatory criterion. In 2017, USCIS issued guidance rescinding the
Way Memo. USCIS did not explicitly rely on the rescission memo in
the instant case but followed its logic.
INNOVA SOLUTIONS V. BARAN 7
II. DISCUSSION
A. Standard of Review
We review de novo a district court’s ruling on cross-
motions for summary judgment. Guatay Christian
Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th
Cir. 2011). “This court also reviews de novo the district
court’s evaluations of an agency’s actions.” San Luis &
Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th
Cir. 2014).
Under the Administrative Procedure Act, we must set
aside agency action “found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). An action is arbitrary and
capricious if the agency “entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
658 (2007) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
To survive a challenge, the agency must articulate “a
satisfactory explanation” for its action, “including a rational
connection between the facts found and the choice made.”
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019)
(citation omitted). We may not attempt to make up for
deficiencies in the decision by “supply[ing] a reasoned basis
for the agency’s action that the agency itself has not given.”
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127
(2016) (citation omitted).
8 INNOVA SOLUTIONS V. BARAN
B. USCIS’s Denial of the H-1B Visa Petition Was
Arbitrary and Capricious
The OOH is the only source upon which USCIS relied to
conclude that a bachelor’s degree is not “normally” required
for computer programming positions like Innova’s. The
OOH stated that “[m]ost computer programmers have a
bachelor’s degree in computer science or a related subject.”
The OOH also listed a bachelor’s degree as the “[t]ypical
level of education that most workers need to enter” the
computer programmer occupation.
USCIS’s decision in light of that evidence was arbitrary
and capricious. Mirroring the regulatory language, the
decision explains: “the OOH does not state that at least a
bachelor’s degree or its equivalent in a specific specialty is
normally the minimum required for entry into the
occupation.” Although the OOH, a career education
resource published by a different agency, did not use the
precise language of the H-1B regulation, it made clear that a
bachelor’s degree is not only common but typically needed.
There is no daylight between typically needed, per the OOH,
and normally required, per the regulatory criteria.
“Typically” and “normally” are synonyms. Normally,
Merriam-Webster Thesaurus, https://www.merriam-
webster.com/thesaurus/normally. The Supreme Court uses
these words interchangeably in the same sentence. 5 So do
5
See, e.g., Rapanos v. United States, 547 U.S. 715, 744 (2006) (“In
contrast to the pollutants normally covered by the permitting requirement
of § 1342(a), ‘dredged or fill material,’ which is typically deposited for
the sole purpose of staying put, does not normally wash downstream.”
(citation omitted) (emphases added)); Miller v. Albright, 523 U.S. 420,
469 (1998) (Ginsburg, J., dissenting) (“These generalizations pervade
the opinion of Justice Stevens, which constantly relates and relies on
INNOVA SOLUTIONS V. BARAN 9
we. 6 So does the United States Solicitor General. 7 And so
does the federal government. 8
USCIS’s contrary reasoning is beyond saving. There is
no “rational connection” between the only source USCIS
cited, which indicated most computer programmers have a
bachelor’s degree and that a bachelor’s degree is typically
needed, and USCIS’s decision that a bachelor’s degree is not
normally required. See Dep’t of Com., 139 S. Ct. at 2569
(citation omitted); Next Generation Tech., Inc. v. Johnson,
328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) (noting that the
court “is at a loss to see a ‘rational connection’” in the same
context). USCIS’s suggestion that there is “space” (which
we understand to connote a difference in meaning) between
these words is “so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.”
Defs. of Wildlife, 551 U.S. at 658 (citation omitted). While
it is theoretically possible that there is “space” between
what ‘typically,’ or ‘normally,’ or ‘probably’ happens ‘often.’”
(emphases added)).
6
See, e.g., United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157,
1168 (9th Cir. 2017) (“[M]ere nondisclosure of evidence is typically not
enough to constitute fraud on the court, and perjury by a party or witness,
by itself, is not normally fraud on the court.” (internal quotation marks
and citation omitted) (emphases added)); United States v. Flores-Blanco,
623 F.3d 912, 915 (9th Cir. 2010).
7
See Brief for the United States at 3, Boyle v. United States,
556 U.S. 938 (2009) (No. 07-1309) (“After scouting for banks likely to
have vulnerable and cash-rich night-deposit boxes, typically located in
retail areas, like shopping malls, the group would normally execute
robberies in the early morning hours.” (internal citations omitted)
(emphases added)).
8
See, e.g., 30 C.F.R. § 580.30; 33 C.F.R. § 203.71; 40 C.F.R.
§ 98.128; 45 C.F.R. § 1801.4.
10 INNOVA SOLUTIONS V. BARAN
normally, most, and typically, that space is at best molecular,
and nowhere near big enough for the doublespeak freight
train that USCIS tries to drive through it.
In response, USCIS points to OOH language stating that
“some employers hire workers with an associate’s degree.”
But the fact that some computer programmers are hired
without a bachelor’s degree is entirely consistent with a
bachelor’s degree “normally [being] the minimum
requirement for entry.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)
(emphasis added); see also Taylor Made Software, Inc. v.
Cuccinelli, 453 F. Supp. 3d 237, 246 (D.D.C. 2020)
(“[USCIS] cannot simply rely on the OOH’s recognition that
an unspecified number of contrary cases exist. That is not a
rational treatment of the language in the OOH.”) Normally
does not mean always. 9 See Normally, Cambridge
Dictionary (2019), https://dictionary.cambridge.org/us/dict
ionary/english/normally (defining “normally” as “usually or
regularly” and “usually, or in most cases” (emphasis
added)); see also United States v. Corey, 232 F.3d 1166,
1180 (9th Cir. 2000) (distinguishing “normally” from
“always”); Riverbend Farms, Inc. v. Madigan, 958 F.2d
1479, 1488 (9th Cir. 1992) (same); 5 C.F.R. § 551.202(h)
(same). While agencies are entitled to deference in
interpreting their own ambiguous regulations, this regulation
is not ambiguous and deference to such an implausible
interpretation is unwarranted. See Kisor v. Wilkie, 139 S. Ct.
2400, 2414 (2019) (limiting Auer deference to regulations
9
That USCIS recently issued an interim final rule amending this
regulation to delete the word “normally” from the first criterion so that
that a bachelor’s degree is “always the requirement” for the occupation
confirms this common sense reading of the prior regulatory language.
See 85 Fed. Reg. at 63,926. As discussed above, this amendment does
not impact the instant appeal.
INNOVA SOLUTIONS V. BARAN 11
that are “genuinely ambiguous, even after a court has
resorted to all the standard tools of interpretation”); Mejia v.
Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002) (noting that an
agency “does not have the discretion to misapply the law.”).
USCIS’s unreasonable reading of the regulatory language
here is therefore arbitrary and capricious. See Salehpour v.
INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“Where the
objective criteria of a regulation are clearly met, there is no
room for an agency to interpret a regulation so as to add
another requirement.”).
On appeal, USCIS tries to distance itself from the
“authoritative source” upon which it chose to rely
exclusively in its decision. USCIS contends that the OOH
alone cannot establish “whether an occupation qualifies per
se as a specialty occupation” because “[i]n some instances,
as with the Computer Programmer occupation here, it is not
a sufficient source of information.” In other words, where
the OOH states that some positions do not require a
bachelor’s degree, USCIS does not consider the OOH a
“sufficient source of information.” That argument is related
to the basis for the district court’s decision: because some
computer programmers are hired with associate’s degrees,
Innova “had the burden to show that the particular position
offered to Mr. Dodda was among the Computer Programmer
positions for which a bachelor’s degree was normally
required.”
These arguments are flawed. First, by demanding
additional proof anytime some positions within an
occupation require less than a bachelor’s degree, USCIS
again improperly equates “normally” with “always.” These
contentions also misconstrue the regulation and flout
USCIS’s own approach to applying it. While it is true that
the regulation refers to the requirement of a bachelor’s
12 INNOVA SOLUTIONS V. BARAN
degree “for entry into the particular position,” 8 C.F.R.
§ 214.2(h)(4)(iii)(A)(1) (emphasis added), USCIS
determined that Dodda’s “particular position” is indeed
computer programmer, and not a sub-group within that
classification. As USCIS told the district court, this is the
first of two steps in USCIS’s analysis of the first regulatory
criterion.
Second, “the agency categorically determines whether
the educational requirements of that occupation group in the
OOH normally requires for entry at least a bachelor’s degree
in a specific specialty.” Therefore, by USCIS’s own
admission, showing that the matching occupational group in
the OOH normally requires a bachelor’s degree satisfies the
regulation. No additional proof about whether the position
falls within some sub-group is required. By requiring Innova
to show its “particular position . . . was among the Computer
Programmer positions for which a bachelor’s degree was
normally required,” the district court’s ruling functionally
requires visa petitioners to demonstrate that their particular
position actually requires a bachelor’s degree. That
approach is plainly inconsistent with the language of the first
regulatory criterion and USCIS practice. Moreover, it
conflates the first criterion, which only asks whether the
position normally requires a bachelor’s degree, and the third
criterion, which asks whether the employer normally
requires a bachelor’s degree for the position. Compare
8 C.F.R. § 214.2(h)(4)(iii)(A)(1), with id.
§ 214.2(h)(4)(iii)(A)(3). And as both parties acknowledge,
the four criteria are independent—a petitioner need only
satisfy any one criterion to establish that a position is in a
“specialty occupation.” Id. § 214.2(h)(4)(iii)(A).
USCIS’s decision was also arbitrary and capricious
because in misrepresenting the OOH, it “offered an
INNOVA SOLUTIONS V. BARAN 13
explanation for its decision that [ran] counter to the evidence
before [it].” Defs. of Wildlife, 551 U.S. at 658 (citation
omitted). We have required agency decisions to accurately
reflect the evidentiary record. See Cerrillo-Perez v. INS,
809 F.2d 1419, 1422 (9th Cir. 1987) (“[W]hen important
aspects of the individual claim are distorted or disregarded,
the BIA has abused its discretion.” (internal quotation marks
and citation omitted)).
According to the USCIS decision, the OOH stated that
“the [computer programmer] occupation allows for a wide
range of educational credentials, including an associate’s
degree to qualify.” But rather than suggesting a “wide
range,” the OOH stated: “Most computer programmers have
a bachelor’s degree in computer science or a related subject;
however, some employers hire workers with an associate’s
degree.” The USCIS decision continues: “the OOH
indicates that most computer programmers obtain a degree
(either a bachelor’s or an associate’s degree) in computer
science or a related field.” But as the district court
acknowledged, that “mischaracterizes the OOH.” The OOH
did not state that most computer programmers have either a
bachelor’s or an associate’s degree, but rather that most
“have a bachelor’s degree in computer science or a related
subject.”
While a factual error is not necessarily fatal to an agency
decision, whether most programmers have a bachelor’s (as
opposed to either a bachelor’s or associate’s) degree is the
core question upon which USCIS’s determination here
hinged. Because we may only affirm on the basis provided
by the agency, SEC v. Chenery Corp., 332 U.S. 194, 196
(1947), and in any case, the agency has not disavowed this
view, this serious misconstruction of the only source
considered was arbitrary and capricious.
14 INNOVA SOLUTIONS V. BARAN
Finally, USCIS failed to consider key evidence. A
decision is arbitrary and capricious if the agency “entirely
failed to consider an important aspect of the problem.” Defs.
of Wildlife, 551 U.S. at 658 (citation omitted). “We will
defer to an agency’s decision only if it is ‘fully informed and
well-considered.’” Sierra Club v. Bosworth, 510 F.3d 1016,
1023 (9th Cir. 2007) (citation omitted). The OOH listed
“bachelor’s degree” as the “[t]ypical level of education that
most workers need to enter this occupation.” That language
speaks directly to the question whether a bachelor’s degree
is normally required for computer programmers. Indeed, it
preempts USCIS’s core argument on appeal: that “there is a
difference between workers in a particular occupation
‘having’ a degree and what the industry (including other
employers) normally ‘requires,’” and that the OOH only
establishes the former. Despite appearing at the top of the
OOH’s landing page for computer programmers, this OOH
language was not mentioned anywhere in USCIS’s decision.
USCIS’s failure to consider evidence so central to the
inquiry is yet another (and independent) reason why its
decision was arbitrary and capricious, and why we must
reverse.
REVERSED AND REMANDED.