Hospital Business Services, Inc. v. Cissna

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HOSPITAL BUSINESS SERVICES,
INC.
Plaintiff,

v. Civ. Action No. 19-0198 (EGS)

UR M. JADDOU, DIRECTOR, UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES,1

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Hospital Business Services, Inc. (“HBSI”), a holding

company of Prime Healthcare Services, a hospital chain with

approximately 40,000 employees nationwide, sought to hire eight

foreign-born nationals in the United States as “Application

Analysts.” See Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s MSJ”), ECF

No. 18-1 at 10.2 Plaintiff challenges the denial of six of the

eight petitions by Defendant United States Citizenship and

Immigration Services (“USCIS” or the “Agency”). See id. at 12.

USCIS based its denials on the determination that the proffered

1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court
substitutes as defendant Ur M. Jaddou, for Former Director L.
Francis Cissna.
2 When citing electronic filings throughout this Memorandum

Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.

1
positions do not require a bachelor’s degree or higher in a

specific specialty, and therefore do not meet the “specialty

occupation” bar for H1-B visas set out in 8 C.F.R. §

214.2(h)(4)(iii)(A). See Def.’s Mem. Supp. Cross-Mot. Summ. J. &

Opp’n (“Def.’s XMSJ”), ECF No. 19-1 at 6. HBSI alleges that

USCIS’s denials of the petitions are arbitrary and capricious in

violation of the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 701, et seq. See Pl.’s MSJ, ECF No. 18-1 at 12. Pending before

the Court are HBSI’s motion for summary judgment, ECF No. 18-1;

and USCIS’s cross motion, ECF No. 19-1. Upon consideration of

the motions, responses, and the replies thereto, the applicable

law and regulations, the entire record and the materials cited

therein, the Court GRANTS IN PART AND DENIES IN PART HBSI’s

motion for summary judgment and GRANTS IN PART AND DENIES IN

PART USCIS’s cross motion for summary judgment.

II. Background

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”) permits

employers to temporarily employ foreign, nonimmigrant workers in

specialty occupations through the H-1B visa program. See 8

U.S.C. § 1101(a)(15)(H). To obtain a visa, an employer first

submits to the Department of Labor (“DOL”) a Labor Condition

Application (“LCA”), which identifies the specialty occupation

at issue and certifies that the company will comply with the

2
requirements of the H-1B program. 8 U.S.C. § 1182(n)(1). Once

the DOL has certified the LCA, the employer submits it to USCIS,

along with a Petition for a Nonimmigrant Worker (“Form I-129” or

“petition”) on behalf of the alien worker, showing that the

proffered position satisfies the statutory and regulatory

requirements. 8 C.F.R. § 214.2(h)(4)(i)(B).

In line with the statutory definition in 8 U.S.C. §

1184(i)(1), the USCIS regulation defines a specialty occupation

as one that “requires the attainment of a bachelor’s degree or

higher in a specific specialty” or its equivalent, in addition

to “theoretical and practical application of a body of highly

specialized knowledge in fields of human endeavor including, but

not limited to, architecture, engineering, mathematics, physical

sciences, social sciences, medicine and health, education,

business specialties, accounting, law, theology, and the arts.”

8 C.F.R. § 214.2(h)(4)(ii). USCIS’s implementing regulations set

forth four criteria, of which at least one must be satisfied, to

determine whether a profession is a “specialty occupation.” An

occupation qualifies if:

(1) A baccalaureate or higher degree or its
equivalent is normally the minimum requirement
for entry into a particular position;

(2) The degree requirement is common to the
industry in parallel positions among similar
organization or, in the alternative, an
employer may show that its particular position

3
 is so complex or unique that it can be
performed only by an individual with a degree;

(3) The employer normally requires a degree or
its equivalent for the position; or

(4) The nature of the specific duties are so
specialized and complex that knowledge
required to perform the duties is usually
associated with the attainment of a
baccalaureate or higher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). USCIS determines whether

a position qualifies as a specialty occupation, see 20 C.F.R. §

655.715; and the petitioner bears the burden of proving that the

proffered position falls within one of the four categories, see

8 U.S.C. § 1361.

To aid USCIS adjudicators in understanding job duties and

classifications, USCIS accepts “relevant documentation from an

authoritative career resource, which lists the duties, work,

environment, education, training, skills, and other

qualification requirements for the occupation.” Administrative

Record (“AR”), ECF No. 23-11 at 25. One such resource that USCIS

“routinely consults” is the U.S. Department of Labor’s (“DOL”)

Occupational Outlook Handbook (“Handbook”) for “information

about the educational requirements of particular occupations.”

Id. A second authoritative source is the DOL’s O*Net Standard

Occupational Classification (“O*Net Report”). Def.’s XMSJ, ECF

No. 19-1 at 23. The O*Net Report is “the nation’s primary source

4
for occupational information.” RELX, Inc. v. Baran, 397 F. Supp.

3d 41, 54 (D.D.C. 2019).

B. Factual and Procedural Background

HBSI provides Information Technology (“IT”) services such

as hospital billing, cash posting, collecting, and business

function services to over forty hospitals and medical centers

across eleven states. See Def.’s Stmt. of Material Facts

(“Def.’s SMF”), ECF No. 19-2 ¶ 1. All these hospitals and

medical centers, including HBSI itself, are owned by Prime

Healthcare Services (“Prime”). Id. To meet Prime’s IT needs,

HBSI employs Application Analysts, whose job duties include,

among other things, maintaining system utilization files,

assisting computer programmers in resolution of work problems,

logging and maintaining records of system performance,

developing new systems or procedures to improve production

workflow, interacting with vendors, and reporting software

problems. Id. ¶ 2; see also e.g., AR, ECF No. 23-11 at 37-40.

On April 2, 2018, HBSI filed petitions with USCIS, seeking

to secure each petition beneficiary’s H-1B status beginning

September 1, 2018. Def.’s SMF, ECF No. 19-2 ¶ 4. Each individual

had recently received a Master of Computer Science degree from a

U.S. University, see, e.g., AR, ECF No. 23-1 at 108-117; and was

offered the position of Applicant Analyst at a wage of $25.11

per hour. Def.’s SMF, ECF No. 19-2 ¶ 3, 4.

5
 For each petition, HBSI provided: (1) an LCA, see AR, ECF

No. 23-2 at 2-7; (2) a letter from Prime’s President of

Operations with background information on HBSI, the job duties

of Application Analysts, and the suitability of each beneficiary

for the position, see id. at 9-12; (3) copies of the

beneficiaries’ respective Master’s degrees and official

transcripts, see, e.g., id. at 50-59; (4) a copy of their F-1

student visas and work authorizations, see, e.g., id. at 35-48;

and (5) a copy of the biographic page of their unexpired

passports, see, e.g., id. at 32-24.

In October 2018, USCIS issued a “Request For Evidence”

(“RFE”) seeking additional information regarding whether the

Application Analyst position qualified as a specialty

occupation, and for three of the petitions, additional evidence

establishing the employer-employee relationship. See Def.’s SMF,

ECF No. 19-2 ¶ 6. In the RFE, USCIS identified the deficiencies

in the petitions and provided detailed guidance on the types of

evidence that would be probative. Id. ¶ 7-12.

Six of the petitions were reviewed at USCIS’s California

Service Center and each was denied because HBSI had failed to

demonstrate that the proffered position was a specialty

occupation.3 See AR, ECF No. 23-1 at 5-12 (WAC 0003) (denial of

3For three of the petitions, USCIS also determined that HBSI had
failed to demonstrate that the beneficiary would “perform

6
petition for Suhasini Rajulapudi); AR, ECF No. 23-3 at 5-13 (WAC

1540)(denial of petition for Raghavendra Cheni); AR, ECF No. 23-

5 at 177-185 (WAC 1719) (denial of petition for Reshma Vemula);

AR, ECF No. 23-7 at 3-8 (WAC 1166) (denial of petition for Arpit

Pandya) AR, ECF No. 23-9 at 5-13 (WAC 1947) (denial of petition

for Shraddha Varvadekar); ECF No. 23-11 at 12-20 (WAC

0365)(denial of petition for Mihir Patel).4 Two of the petitions

were reviewed at the Vermont Service Center and approved. See

AR, ECF No. 23-4 at 8-9 (approval of petition for Kaushik

Yelisetti); AR, ECF No. 23-4 at 10-11 (approval of petition for

Devika Meda).

HBSI subsequently filed its Complaint in this Court on

January 28, 2019. See ECF No. 1. On October 7, 2019, HBSI moved

for summary judgment, seeking an order from this Court directing

USCIS to grant the six H1-B petitions. See Pl.’s MSJ, ECF No.

18-1. USCIS opposed and filed a cross motion for summary

judgment on November 6, 2019. See Def.’s XMSJ, ECF No. 19-1.

HBSI filed an opposition to the cross motion shortly thereafter.

See Pl.’s Mem. Opp. Def.’s Cross Mot. for Summary Judgment

services in a specialty occupation at your location for the
requested employment period.” AR, ECF No. 23-3 at 8. Neither
party sought summary judgment on this aspect of the decisions.
See generally Pl.’s MSJ, ECF No. 18-1, Def.’s XMSJ, ECF No. 19.
4 Each Administrative Record is largely similar, as is each USCIS

Decision. Accordingly, the Court generally cites to the first AR
in the record in this case and indicates where there are
significant differences in USCIS’s decisions.

7
(“Pl.’s Opp’n”), ECF No. 21. USCIS replied on December 4, 2019.

See Def.’s Reply, ECF No. 22. The cross motions are ripe and

ready for the Court’s adjudication.

III. Standard of Review

Summary judgment is ordinarily warranted when “the

pleadings, the discovery and disclosure materials on file, and

any affidavits [or declarations] show that there is no genuine

issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Air Transp. Ass’n of Am. v. Nat’l

Mediation Bd., 719 F. Supp. 2d 26, 31-32 (D.D.C. 2010)

(alteration in original) (citing Fed. R. Civ. P. 56(c)), aff’d,

663 F.3d 476 (D.C. Cir. 2011)). However, this standard does not

apply in cases, such as this one, involving review of agency

action under the APA “because of the limited role of a court in

reviewing the administrative record.” Ctr. for Food Safety v.

Salazar, 898 F. Supp. 2d 130, 138 (D.D.C. 2012). “[T]he function

of the district court is to determine whether or not as a matter

of law the evidence in the administrative record permitted the

agency to make the decision it did.” Sierra Club v. Mainella,

459 F. Supp. 2d 76, 90 (D.D.C. 2006) (internal quotation marks

and citations omitted). In such cases, summary judgment “serves

as the mechanism for deciding, as a matter of law, whether the

agency action is supported by the administrative record and

otherwise consistent with the APA standard of review.” Cottage

8
Health Sys. v. Sebelius, 631 F. Supp. 2d 80, 90 (D.D.C. 2009)

(internal citations omitted).

Under the APA, the question for the court is limited to

whether the agency action was “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). Review of agency action is “highly

deferential.” AT & T, Inc. v. FCC, 886 F.3d 1236, 1245 (D.C.

Cir. 2018) (quoting Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536,

541 (D.C. Cir. 2009)). While the agency “‘must examine’ the

relevant factors and data and articulate a ‘rational connection’

between the record and [its] decision,” id. (quoting Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983));

the “decision need not be a model of analytic precision to

survive a challenge,” Coburn v. McHugh, 679 F.3d 924, 934 (D.C.

Cir. 2012) (internal quotation marks and citations omitted). The

inquiry is “narrow,” and the court “is not to substitute its

judgment for that of the agency.” State Farm, 463 U.S. at 43.

Although the scope of review is deferential, “courts retain

a role ... in ensuring that agencies have engaged in reasoned

decision making.” Iaccarino v. Duke, 327 F. Supp. 3d 163, 177

(D.D.C. 2018) (citing Judulang v. Holder, 565 U.S. 42, 53, 132

S. Ct. 476, 181 L. Ed. 2d 449 (2011)). The requirement that an

agency action not be arbitrary and capricious includes a

9
requirement that the agency adequately explain its result. Id.

(citing Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.

Cir. 1993)). Judicial review is “not toothless: a court will

find an Agency acted arbitrarily or capriciously if it has

relied on factors Congress did not intend it to consider,

entirely failed to consider an important aspect of the problem,

or offered an explanation either contrary to the evidence before

the agency or so implausible as to not reflect either a

difference in view or agency expertise.” Taylor Made Software,

Inc. v. Cuccinelli, 453 F.Supp.3d 237, 242 (D.D.C. 2020) (citing

Defs. of Wildlife v. Jewell, 815 F.3d 1, 9 (D.C. Cir. 2016))

(internal quotation marks omitted).

IV. Analysis

HBSI challenges USCIS’s denials in two ways. First, HBSI

contends that the Agency seeks to implement a new interpretation

of 8 C.F.R. § 214.2(h)(4)(iii)(A), and that this interpretation

does not warrant Auer deference.5 See Pl.’s Opp’n, ECF No. 21, at

19. Second, HBSI argues that the Agency’s denials were arbitrary

and capricious with regard to all four of the 8 C.F.R. §

5HBSI also argues that USCIS’s interpretation of “specialty
occupation” in 8 C.F.R. § 214.2(h)(4)(ii) is not entitled to
deference because it “parrots” the statutory language. Pl.’s
Opp’n, ECF No. 21 at 18. However, and as USCIS points out, HBSI
challenges USCIS’s interpretation and application of 8 C.F.R. §
214.2(h)(4)(iii); not USCIS’s interpretation of “specialty
occupation.” Accordingly, the Court need not address this
argument.

10
214.2(h)(4)(iii)(A) criteria. See id. at 7. The Court addresses

each of these arguments in turn.

A. USCIS’S Interpretation of 8 C.F.R. § 214.2(h)(4)(iii)(A) Is
Entitled to Deference
HBSI argues that USCIS’s interpretation of its regulation

at 8 CFR § 214.2(h)(4)(iii)(A) to require a bachelor’s degree or

higher in a specific specialty, rather than any bachelor’s

degree, violates the plain language of the regulation. See Pl.’s

Opp’n, ECF No. 18-1 at 20. USCIS responds that its

interpretation is permissible when the provision is read in

concert with the statutory and regulatory definitions of

“specialty occupation,” noting that HBSI’s argument was rejected

in Sagarwala v. Cissna, 387 F. Supp. 3d 56 (D.D.C. 2019) (as

well as a number of cases in other districts). See Def.’s XMSJ,

ECF No. 19-1 at 15-16. USCIS also notes that HBSI fails to cite,

much less distinguish, this persuasive authority. Def.’s Reply,

ECF No. 22 at 6.

USCIS’s interpretation of its own regulation is

“controlling unless plainly erroneous or inconsistent with the

regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal

quotation marks and citation omitted). Auer deference is

appropriate when: (1) “the regulation is genuinely ambiguous”;

(2) “the character and context of the agency interpretation

entitles it to controlling weight” based on, among other things,

whether the regulatory interpretation is (a) the agency’s

11
authoritative or official position and (b) implicates the

agency’s substantive expertise; and (3) the “agency’s reading of

a rule . . . reflects its ‘fair and considered judgment’” Kisor

v. Wilkie, 139 S. Ct. 2400, 2415-17 (2019) (quoting Auer, 519

U.S. at 462); rather than a “convenient litigating position” or

a new interpretation that “creates unfair surprise” to regulated

parties, id. at 2417-18 (internal quotations and citations

omitted). In determining whether the statute unambiguously

expresses the intent of Congress, the Court should use all the

“traditional tools of statutory construction,” including looking

to the text and structure of the statute, as well as its

legislative history, if appropriate. Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 873, 843, n.9.

“If genuine ambiguity remains . . . the agency’s reading must

fall within the bounds of reasonable interpretation.” Kisor, 139

S. Ct. at 2415 (internal quotation marks and citations omitted).

USCIS does not dispute that the regulation is ambiguous.

See generally Def.’s XMSJ, ECF No. 19-1. HBSI, however, argues

that “the regulation is not ‘genuinely ambiguous’ [because] [i]t

creates ‘precise’ requirements for employers to satisfy the

second H-1B element.” Pl.’s Opp’n, ECF No. 21 at 22. But the

evidence that the petitioner may provide to establish that the

position qualifies as a specialty position is beside the point.

The issue is whether 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) is

12
susceptible to more than one interpretation. The Court is

persuaded that it is because taking into account the text and

structure of the statute and regulations, it could be

interpreted to require a baccalaureate degree or higher in a

specific specialty or any baccalaureate or higher degree. See

Sagarwala, 387 F. Supp. 3d at 68.

HBSI also claims that “the agency lacks the substantive

expertise needed to make its own determination on the degree

requirement,” pointing to agency policies that direct agency

adjudicators to consult with experts regarding the degree

requirement when there is uncertainty. Pl.’s Opp’n, ECF No. 21

at 22-23. The Court disagrees. USCIS determines whether a

position qualifies as a specialty occupation, see 20 C.F.R. §

655.715; and the employer bears the burden of convincing the

Agency that the position qualifies and the applicant is

otherwise eligible for a visa, see 8 U.S.C. § 1361. USCIS’s

relevant substantive expertise is a factor in the deference due

to USCIS’s determination of a specialty occupation. See Kisor,

139 S. Ct. at 2403 (observing that “the basis for deference ebbs

when the subject matter of a dispute is distant from the

agency's ordinary duties”). Making specialty occupation

determinations for H-1B visas is not, therefore, “distant” from

USCIS’s “ordinary duties.” Id.

13
 The Court is persuaded that USCIS’s interpretation of the

regulation to require a bachelor’s degree or higher or its

equivalent in a specific specialty “fall[s] within the bounds of

reasonable interpretation.” Kisor, 139 S. Ct. at 2416. The

regulation refers to “[a] baccalaureate degree or higher or its

equivalent,” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1); without

specifying that the degree needs to be in a specific specialty.

However, the statutory context is admitting nonimmigrants to

perform a specialty occupation, which is statutorily defined to

include the “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)(B); see also 8 C.F.R. § 214(h)(4)(ii)) (defining

specialty occupation to mean, among other things, “the

attainment of a bachelor's degree or higher in a specific

specialty, or its equivalent, as a minimum for entry into the

occupation in the United States”). USCIS’s interpretation is

neither “plainly erroneous or inconsistent with the regulation,”

Mellow Partners, 890 F.3d at 1079; when understood in the

statutory and regulatory context.

Additionally, the Court is persuaded that “the character

and context of the agency interpretation entitles it to

controlling weight,” Kisor, 139 S. Ct. at 2416; because USCIS’s

interpretation is an official agency position that implicates

14
its substantive expertise in interpreting its regulations, see

Sagarwala, 387 F. Supp. 3d at 67. Furthermore, USCIS’s

interpretation is not a litigation position or a new

interpretation, but it is the agency’s “fair and considered

judgment.” Kisor, 139 S. Ct. at 2417.

B. UCSIS’ Training Materials Are Not Final Agency Action
Subject to Judicial Review Under the APA

HBSI argues that USCIS enacted an “unlawful legislative

rule,” pointing to USCIS’s training materials which it contends

require its employees to “deny petitions for computer related

positions unless a particular degree is necessary and always

required of all United States workers doing the position.” Pl.’s

Mot., ECF No. 18-1 at 21. USCIS responds—and the Court agrees—

that the training materials are not final agency action subject

to judicial review.

“Agency actions are final if two independent conditions are

met: (1) the action ‘mark[s] the consummation of the agency's

decisionmaking process’ and is not ‘of a merely tentative or

interlocutory nature;’ and (2) it is an action ‘by which rights

or obligations have been determined, or from which legal

consequences will flow.’” Soundboard Ass’n v. FTC, 888 F.3d

1261, 1267 (D.C. Cir. 2018) (quoting Bennett v. Spear, 520 U.S.

154, 177-78, 17 S. Ct. 1154, 137 L. Ed. 2d 281 (1997)) (internal

quotation marks omitted). Neither of these conditions are met

15
with the training materials. Rather, the final agency action

subject to judicial review under the APA is USCIS’s

determinations on each of the petitions. 6

C. Deference is Owed to the Decisions of the USCIS Service
Centers7
HBSI argues that no deference is due to the decisions of

USCIS’s service centers because since they are “among the lowest

level decision makers in the agency,” their interpretation of

regulations “cannot be construed as official or authoritative.”

Pl.’s Opp’n, ECF No. 21 at 27. The Court disagrees. “[D]eference

is owed to the decisionmaker authorized to speak on behalf of

the agency . . ..” Serono Laboratories, Inc. v. Shalala, 158

F.3d 1313, 1321 (D.C. Cir. 1998). Accordingly, the six decisions

issued by the service centers are not “ad hoc statement[s] not

reflecting the agency’s views,” Kisor, 139 S. Ct. at 2416; but

rather the outcome of “the decisionmaker authorized to speak on

behalf of the agency.” Serono, 158 F.3d at 1321.

6 Because the training materials are not final agency action, the
Court need not reach HBSI’s argument that the training materials
amount to a “legislative rule.” Pl.’s MSJ, ECF No. 18-1 at 20.
7 HBSI also asserts that USCIS cannot engage in “adjudicative

rulemaking.” Pl’s Opp’n, ECF No. 21 at 26. However, and as USCIS
points out, “[t]he final decisions that [HBSI challenges in this
action are adjudications, not ‘adjudicative rulemaking.’” Def.’s
Reply, ECF no. 22 at 9 (citing Conf. Grp. V. FCC, 720 F.3d 957,
965 (D.C. Cir. 2013) (noting that adjudications are “highly
fact-specific, case-by-case” determinations).

16
 D. Analysis of the 8 C.F.R. § 214.2(h)(4)(iii)(A) Factors

HBSI is entitled to the relief sought if USCIS’s denials of

the petitions were arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law. 5 U.S.C. §

706(2)(A). HBSI argues that USCIS’s decisions were arbitrary and

capricious in concluding that the Application Analyst position

was not a specialty occupation. See Pl.’s MSJ, ECF No. 18-1 at

7.

A “specialty occupation” is “an occupation that requires

theoretical and practical application of a body of highly

specialized knowledge; and 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). To qualify as a specialty occupation, the

position must meet at least one of four criteria: (1) a

baccalaureate or higher degree is normally the minimum

requirement for entry into the particular position; (2) the

degree requirement is common to the industry in parallel

positions among similar organizations or the position is so

unique or complex that only an individual with a degree can

perform it; (3) the employer normally requires a degree or its

equivalent for the position; or (4) the nature of the specific

duties are so specialized and complex that the knowledge

required to perform the duties is usually associated with

17
attainment of a baccalaureate degree or higher. 8 C.F.R. §

214.2(h)(4)(iii)(A). USCIS considers these regulatory criteria

to be “supplemental criteria that must be met in accordance

with, and not as alternatives to, the statutory and regulatory

definitions of specialty occupation.” AR, ECF No. 23-1 at 6.

USCIS first determined that the Application Analyst

position does not qualify as a specialty occupation because

[t]he duties as described do not communicate:
(1) the actual work that the beneficiary would
perform; (2) the complexity, uniqueness and/or
specialization of the duties; or (3) the
correlation between that work and a need for
a particular level of education of highly
specialized knowledge in a specific specialty.
Thus, you have not shown that the proffered
position is a specialty occupation and the
petition must be denied on this basis alone.

Id. at 8.

However, USCIS went on to analyze “the duties as described

and the evidence of record to determine whether the proffered

position as described would qualify as a specialty occupation”

based on whether HBSI had shown that the position meets at least

one of the four criteria set forth at 8 C.F.R. §

214.2(h)(4)(iii)(A). Since these four criteria “unambiguously

‘create a necessary . . . condition’ for the issuance of a H-1B

visa,” Sagarwala, 387 F. Supp. 3d at 64; HBSI must show that

USCIS was wrong about at least one of the criteria.

18
 The Court will discuss each of the four factors in turn,

cognizant that its review is limited only to “whether the

decision was based on a consideration of the relevant factors

and whether there has been a clear error of judgment.”

ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1083 (D.C. Cir.

2002) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971)). It

is not enough that the Court “would have come to a different

conclusion” than the Agency had it considered the matter de

novo. Conservation Law Found. v. Ross, 374 F. Supp. 3d 77, 89

(D.D.C. 2019).

1. USCIS Abused Its Discretion in Determining That a
“Baccalaureate or Higher Degree or Its Equivalent
Is Not Normally the Minimum Requirement For Entry
Into the Computer Systems Analyst Position”

a. The Handbook Rationale

USCIS determined that HBSI failed to demonstrate that the

proffered position met the first criterion. Each decision relied

on the Handbook to conclude that “a bachelor’s level of training

in a specific specialty is not required for the Computer Systems

Analysts occupation. Many Computer Systems Analysts have liberal

arts degrees and gained experience elsewhere.” AR, ECF No.23-1 at

9.

The Handbook provides in relevant part:

A bachelor’s degree in a computer or
information science field is common, although

19
 not always a requirement. Some firms hire
analysts with business or liberal arts degrees
who have skills in information technology or
computer programming.

Most computer systems analysts have a
bachelor’s degree in a computer-related field.
Because these analysts also are heavily
involved in the business side of a company, it
may be helpful to take business courses or
major in management information systems.

Although many computer systems analysts have
technical degrees, such a degree is not always
a requirement. Many analysts have liberal arts
degrees and have gained programming or
technical expertise elsewhere.

Some employers prefer applicants who have a
master's degree in business administration
(MBA) with a concentration in Information
systems. For more technically complex jobs, a
master's degree in computer science may be
more appropriate.

AR, ECF No. 23-11 at 74.

Pointing to the dictionary meaning of the words “most” and

“normally,” Pl.’s MSJ, ECF No. 18-1 at 24; HBSI argues that

USCIS’s determination was arbitrary and capricious because there

is no rational connection between the Handbook’s description

that “[m]ost computer systems analysts have a bachelor’s degree

in a computer-related field” and USCIS’s determination that the

petitions did not satisfy this criterion because a degree is not

“normally” required. Pl.’s MSJ, ECF No. 18-1 at 26.

USCIS responds that the Handbook “does not explicitly state

that a bachelor’s degree in a computer-related field is

20
‘normally’ required.” Def.’s XMSJ, ECF No. 19-1 at 21. While

acknowledging that the Handbook asserts “that a bachelor’s

degree in a computer or information science field is ‘common’—a

term that can be synonymous with ‘normal,’” USCIS points to the

principle that “an agency decision may be supported by

substantial evidence even though a plausible alternative

interpretation of the evidence would support a contrary view,”

id. (quoting Morall v. DEA, 412 F.3d 165, 176 (D.C. Cir. 2005)).

USCIS also points out that other parts of the Handbook suggest

that a bachelor’s degree in computer science is not “normally”

required because it states that “many analysts have liberal arts

degrees and have gained programming or technical experience

elsewhere.” Id. at 22 (quoting the AR).

Following the completion of summary judgment briefing, HBSI

submitted a Notice of Supplemental authority, discussed

immediately below, asserting that the underlying USCIS decisions

and rationales are indistinguishable from the new persuasive

authority. See Notice, ECF No. 24 at 2. USCIS did not respond to

the Notice nor distinguish the new authority. See generally

Docket for Civil Action No. 19-198.

In Taylor Made Software, Inc. v. Cucccinelli, 453 F. Supp.

3d 237 (D.D.C. 2020), USCIS had denied the plaintiff’s petition

to employ, as a computer systems analyst, a person with a Master

of Science in Computer Science based on the same Handbook

21
rationale as here. 453 F. Supp. 3d at 241, 244. The District

Court rejected USCIS’s reading of the Handbook as well as the

conclusion drawn from it, observing “[t]he Handbook’s statement

that a bachelor’s degree in computer or information science is

‘common, although not always a requirement’ seems to support,

rather than disprove, the proposition that ‘[a] baccalaureate or

higher degree [in a specific specialty] or its equivalent is

normally the minimum requirement for entry into the particular

position.’” Id. at 244 (citing 8 C.F.R. § 214(h)(4)(iii)(a)(1)

(emphasis added)); see also Info Labs Inc. v. USCIS, Civil

Action No. 19-684, 2020 WL 1536251, * 4 (D.D.C. Mar. 31, 2020)

(“[T]he Handbook’s statement that a bachelor’s degree in

computer or information science is ‘common, although not always

a requirement’ supports, rather than disproves, the proposition

that a specialized degree or its equivalent is normally the

requirement.”); see also 3Q Digital, Inc. v. USCIS, No. 19-cv-

579, 2020 WL 1079068, at *3 (D.D.C. 2020) (“[The regulation]

does not say that a degree must always be required, yet the

Agency appears to have substituted the word ‘always’ for the

word ‘normally.’ This is a misinterpretation and misapplication

of the law, and [one that] effectively hold[s] the Plaintiff to

a higher standard than that which is set by the regulation

...”); Innova Solutions, Inc. v. Baran, 983 F.3d 428, 432, (9th

Cir. 2020) (internal citations and quotation marks omitted)

22
([T]he fact that some [systems analysts] are hired without a

bachelor’s degree is entirely consistent with a bachelor’s

degree normally [being] the minimum requirement for entry.”);

but see Altimetrik Corp. v. Cissna, No. 18-10116, 2018 WL

6604258, at *6 (E.D. Mich. 2018) (internal citations and

quotation marks omitted) (The Handbook “makes it clear that a

degree in a computer-related field is not required” for computer

system analysts because “[s]ome firms hire analysts with

business or liberal arts degrees.”).

The Court recognizes that there is some divergent

authority, but finds Taylor Made and Info Labs to be more

persuasive. As indicated supra, USCIS did not attempt to

distinguish this authority.8 USCIS’s determination that “a

bachelor’s level of training in a specific specialty is not

required for the Computer Systems Analysts occupation [because]

[m]any Computer Systems Analysis have liberal arts degrees and

gained experience elsewhere,” AR, ECF No. 23-1 at 9; failed to

consider the relevant statements in the Handbook that “[a]

bachelor’s degree in a computer or information science field is

8 The Court need not consider USCIS’s arguments distinguishing
Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267
(S.D.N.Y. 2017) on the ground that the occupations at issue here
are computer systems analyst positions whereas computer
programmer occupations were at issue in that case because there
is persuasive authority addressing computer systems analyst
positions.

23
common, although not always a requirement,” and that “[m]ost

computer systems analysts have a bachelor’s degree in a

computer-related field.” AR, ECF No. 23-11 at 74. USCIS’s

reliance on the statement that an undetermined number of persons

in the position “have liberal arts degrees and gained experience

elsewhere,” AR, ECF No. 23-1 at 9; ignores these relevant

factors. USCIS’s argument that the decision is a “plausible,

alternative interpretation” because the Handbook “does not

explicitly state that a bachelor’s degree in a computer-related

field is ‘normally’ required,” Def.’s XMSJ, ECF No. 19-1 at 21;

is unpersuasive because the language in the Handbook certainly

“implie[s] that a specialized bachelor’s degree is the typical

baseline requirement.” Taylor Made, 453 F. Supp. 3d at 245.

b. The O*Net Report Rationale

Four of the decisions also relied on the O*NET Report to

conclude that the zone in which the position is classified

“signifies only that most but not all of the occupations within

it require a bachelor’s degree.” AR, ECF No. 23-3 at 8. The

O*Net states in relevant part that: (1) “considerable

preparation is needed” for positions in this zone; and (2)

“[m]ost of these occupations require a four-year bachelor’s

degree, but some do not.”

https://www.onetonline.org/link/summary/15-1211.00?redir=15-

1121.00 (accessed August 21, 2021). USCIS determined that “a Job

24
Zone 4 signifies only that most but not all of the occupations

within it require a bachelor’s degree,” and that there is no

evidence that it requires “particular majors or academic

concentrations.” AR, ECF No. 23-3 at 8; AR, ECF No. 23-5 at 180;

AR, ECF No. 23-9 at 8; and AR, ECF No. 23-11 at 15.

HBSI argues that USCIS’s “treatment of the O*Net fails to

address the salient question: “where, besides a degree in

computer science, would employees get this required knowledge?”

Pl.’s MSJ, ECF No. 18-1 at 24. USCIS argues that although the

O*Net classification “may signify that most of the occupations

require a bachelor’s degree,” “this does not establish that a

bachelor’s degree or higher in a specific specialty is normally

required for entry into the position.” Id. at 23-24

The Court finds USCIS’s determination regarding the O*Net

Report to be reasonable. The Report provides no information

about whether the four-year bachelor’s degree required for

“most” Job Zone Four occupations needs to be in a particular

major or academic concentration.

However, all six petitions were also denied based on the

handbook rationale. For the reasons discussed above, the

decisions were not based “on a consideration of the relevant

factors” and there was “a clear error of judgment.” ExxonMobil

Gas Mktg. Co., 297 F.3d at 1083. Accordingly, USCIS was

arbitrary, capricious, and abused its discretion in its

25
decisions regarding this criterion. The decisions will be

remanded to USCIS to make a new determination for all six

petitions consistent with this Memorandum Opinion.

2.a. USCIS Did Not Abuse Its Discretion In Determining
That HBSI Failed to Demonstrate That “The Degree
Requirement Is Common to the Industry In Parallel
Positions Among Similar Organizations”

In the RFE, USCIS informed HBSI of the types of evidence

that could be submitted to satisfy this criterion: (1) job

postings or advertisements with supporting documentation; (2)

letters from industry-related professional associations; and/or

(3) letters or affidavits from firms or individuals in the

industry with supporting documentation, all of which must speak

to similar firms routinely employing and recruiting individuals

with a bachelor’s degree or higher in a specific specialty. AR,

ECF No. 23-1 at 29.

In response to the RFE, HBSI provided copies of

Applications for Permanent Employment Certification from the

U.S. Department of Labor (“certification”) from four employers.

HBSI stated that: (1) “these organizations are large

organizations similar in size to HBSI and the Prime Healthcare

system”; (2) the positions for which certification was sought

are “in line” with the petitions due to the education required

and the nature of the job duties; and (3) the information in

26
each certification “established the degree requirement as common

within the profession.” AR, ECF No. 23-1 at 45.

The certification from Electrolux Home Products, Inc. was

for a Computer Systems Analyst Position, Level IV; and indicated

that the minimum education required was a bachelor’s degree in

electronic engineering or a related engineering field. AR, ECF

No. 23-1 at 60-62. The certification from Arthrex, Inc. was for

a Computer Systems Analyst position, Level IV, and indicated

that the minimum education required was a bachelor’s degree in

computer science, engineering, information systems, or related

field. AR, ECF No. 23-1 at 76-78. The certification from Paul,

Weiss, Rifkind, Wharton & Garrison LLP was for a Computer

Systems Analyst position, Level IV, and indicated that the

minimal educational requirement was a bachelor’s degree in

computer science, mathematics, or a closely related field. AR,

ECF No. 23-1 at 84-86. Finally, the certification from PetSmart,

Inc. was for a Computer Systems Analyst, Level IV, and indicated

that the minimum educational requirement was a bachelor’s degree

in engineering, computer science, mathematics, or related field.

AR, ECF No. 23-1 at 92-94. Each of the certifications includes

information about advertising for the positions in newspapers

and job search websites, which HBSI incorporated by reference

into its response. Id. at 45.

27
 USCIS determined that the evidence submitted was

insufficient to meet this criterion because: (1) the

“certification[s] are not sufficient evidence of a degree

requirement being common to the industry in parallel positions

among similar organizations,” AR, ECF No. 23-1 at 9; (2) the

proffered employers are “dissimilar to your organization,” AR,

ECF No. 23-3 at 9; and/or (3) no documentation was submitted

regarding industry-standard degree requirements, AR, ECF No. 23-

7 at 6. Three of the Decisions noted that one of the

certifications indicated that one of the employers would accept

applicants with any engineering degree and stated that because

engineering encompasses numerous fields, this would not be a

specialty occupation. AR, ECF No. 23-3 at 9; AR, ECF No. 23-5 at

181; AR, ECF No. 23-11 at 16. Two Decisions stated that the

certifications indicate that the field of study is not limited

to computer science, which is the degree appropriate to the

proffered positions. AR, ECF No. 23-9 at 9; AR ECF No. 23-11 at

16.

HBSI argues that USCIS has not provided any “regulations,

guidance, or explanation of what constitutes a ‘parallel

position’ in a ‘similar organization’” and as a result there is

no clear standard for agency decision-making. Pl.’s Opp’n, ECF

No. 18-1 at 26-27. HBSI also argues that USCIS did not consider

28
HBSI’s “in depth analysis of how each exemplar was a parallel

position in a similar organization.” Id. at 27.

USCIS responds that it “articulated a rational connection

between the record and its decision,” citing the explanations

provided in the decisions. Def.’s XMSJ, ECF No. 19-1 at 29-30.

USCIS also points out that in Sagarwala, the plaintiff provided

letters of support from other companies in addition to job

posting, but the court nonetheless found that “it was not

unreasonable for UCSIS to conclude that a bachelor’s degree was

common across the industry in parallel positions, but that one

in a specific specialty was not. Sagarwala, 387 F. Supp. 3d at

67-68.

As an initial matter, USCIS’s position in some of the

decisions that a specific degree is required for a position to

be considered a “specialty position” is unsound. As the Court

has stated before, “[t]here is no requirement in the statute

that only one type of degree be accepted for a position to be

specialized.” RELX, 397 F. Supp. 3d at 54–55. The statute and

regulations simply require that “the position requires the

beneficiary to apply practical and theoretical specialized

knowledge and [have] a higher education degree.” Id.; see also

Residential Fin. Corp. v. USCIS, 839 F. Supp. 2d 985, 997 (S.D.

Ohio 2012) (“Diplomas rarely come bearing occupation-specific

majors.”); Tapis Int’l v. I.N.S., 94 F. Supp. 2d 172, 175-76 (D.

29
Mass. 2000) (rejecting a similar USCIS interpretation because it

would preclude any position from satisfying the “specialty

occupation” requirements where a specific degree is not

available in that field).

However, because USCIS has offered “multiple independent

grounds” for its determination that HBSI did not satisfy this

criterion, Fogo De Chao (Holdings) v. U.S. Dep’t of Homeland

Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (internal citation

omitted); the Court concludes that USCIS did not abuse its

discretion in its determination that HBSI failed to demonstrate

that a degree requirement is common to the industry in parallel

positions9 among similar organizations. Contrary to HBSI’s

complaint about the lack of guidance, the RFE provided HBSI with

detailed guidance on the types of evidence that would satisfy

this criterion, making clear that the focus is on the employer’s

industry. HBSI contends that the employers for which it provided

the certifications are similar because they “are large

organizations similar in size to HBSI and the Prime Healthcare

system.” AR, ECF No. 23-1 at 45. However, HBSI failed to provide

any evidence related to the requirements for Computer Systems

Analysts in the industry that provides IT services to the

9There does not appear to be a dispute as to whether the evidence
demonstrated that the positions were parallel as each was for a
Computer Systems Analyst, Level IV position.

30
healthcare industry. Accordingly, it was not arbitrary,

capricious, or an abuse of discretion for USCIS to determine

that HBSI failed to meet its burden on this criterion.

2.b USCIS Did Not Abuse Its Discretion In Determining
That HBSI Failed to “Demonstrate That the Particular
Position Is So Complex or Unique That It Can Be
Performed Only By An Individual With a Degree”

In the RFE, USCIS informed HBSI of the types of evidence

that could be submitted to satisfy the criterion: (1) letters

from an industry-related professional association supporting

that the position is so complex or unique that it requires an

individual with a degree; (2) copies of letters or affidavits

from firms or individuals attesting to the same with an

explanation of the writer’s qualifications as an expert,

knowledge the of petitioner’s business, how the conclusions were

reached, and the basis for the conclusions; and/or (3) copies of

trade publications or industry articles demonstrating the

necessity for the degree. See AR, ECF No. 23-1 at 30.

In response to the RFE, HBSI provided: (1) a detailed

description of the job duties, see AR, ECF No. 23-1 at 46-48;

(2) a narrative explanation of how the performance of the duties

by an individual with a degree enables HBSI to carry out its

mission, id. at 49; and (3) a letter from HBSI’s President of

Operations containing largely duplicative descriptions of the

job duties and stating that the minimum requirements for the

31
position are a bachelor’s degree or foreign equivalent in

computer science or other closely related degree in the field,

id. at 100-104.

USCIS determined that HBSI did not satisfy this criterion

on the following grounds: (1) “[t]he submitted list of duties

“was generic in nature and provides no further detail as to the

unique or complex nature of the proffered position,” AR, ECF No.

23-1 at 10; and (2) the LCA HBSI certified to DOL was for a

“Wage Level 1” (entry level) position, which requires the holder

to have “only a basic understanding of the occupation . . .

perform routine tasks that require limited, if any, exercise of

judgment,” id. (quoting DOL Guidelines).

The Court concludes that USCIS did not abuse its discretion

in its determination that HBSI failed to demonstrate that the

position can only be performed by a person with a degree due to

its complexity and uniqueness. First, the evidence HBSI provided

in response to the RFE, while describing the duties, did not

explain why they were so complex and unique that a bachelor’s

degree or higher in a computer related field was necessary.

Second, the descriptions did not establish what aspect of the

duties required at least a bachelor’s degree, beyond the

unsubstantiated assertion by the President of Operations.

HBSI argues that denying the petitions on the grounds that

the positions are entry level “violates the plain language of

32
the regulation” because the regulation acknowledges that an

entry-level position can qualify as a specialty occupation,

pointing to a USCIS AAO Decision for the proposition that an

entry-level position can be a specialty occupation. Pl.’s MSJ,

ECF No. 18-1 at 28. USCIS responds—and the Court agrees—that

HBSI’s characterization of the denials is inaccurate: “the

Agency did not state that a Level One Wage precluded

classification as a specialty occupation,” but rather that “the

proffered wage level did not support HBSI’s assertion that the

proffered position involves duties seen as unique or complex.”

Def.’s XMSJ, ECF No. 19-1 at 34.

HBSI also asserts that USCIS’s reliance on the LCA is not

entitled to deference because the LCA is a Department of Labor

rather than a USCIS document and that the boilerplate language

in the decision is “devoid of any details that would indicate it

read or analyzed [HBSI’s] submission,” indicating that USCIS’s

adjudicators lack the competence to determine how complex the

position is. Pl.’s MSJ, ECF No 18-1 at 29-30. USCIS responds—and

the Court agrees—that that HBSI has not cited to any legal

authority that would require USCIS to defer to an employer’s

determination that a position is a specialty occupation. Id. at

34-35.

Based on HBSI’s failure to explain why the duties were so

complex and unique that a bachelor’s degree or higher in a

33
computer related field was necessary nor what part of the duties

required at least a bachelor’s degree, beyond the

unsubstantiated assertion by the President of Operations, it was

not arbitrary, capricious, or an abuse of discretion for USCIS

to determine that HBSI failed to meet its burden on this

criterion.

3. With One Exception, USCIS Did Not Abuse Its
Discretion In Determining That HBSI Failed to
“Demonstrate That It Normally Requires a Degree
or Its Equivalent In a Specific Specialty For the
Position”

In the RFE, USCIS informed HBSI of the types of evidence

that could be submitted to satisfy this criterion: (1) an

organizational chart containing educational and experience

requirements for the position; (2) copies of present and past

job announcements showing the educational requirements; (3)

documentary evidence of past employment practices for the

position, including (a) a list of the number of employees hired

in the past two years for the position; (b) copies of employment

or pay records for past and present employees in this position;

(c) copies of degrees and/or transcripts to verify the education

and field of study for each individual hired for the past two

years as well as evidence to establish the duties performed; and

(4) documentation listing the educational, experience, training

and skills requirements of the offered position such as official

34
position descriptions, job offer letters, or job postings. AR,

ECF No. 23-1 at 31-32.

In response to the RFE, HBSI provided three types of

evidence. The first was an undated spreadsheet listing: (1) 11

“active” Application Analysts, each of whom had either a

bachelor or master’s degree in degree in information science,

information technology, computer engineering, or computer

science; (2) three Application Analysts not listed as “Active”

for whom educational information was not provided; (3) one

Application Analyst not listed as “Active” with a master’s

degree in applied statistics; and (4) eight Application Analysts

who were the beneficiaries of the April 2018 petitions. AR, ECF

No. 23-1 at 106. The second was copies of educational records

for: (1) the analyst with the degree in applied statistics; and

(2) seven of the eight petition beneficiaries. Id. at 107-17.

The third was a letter from HBSI’s Human Resources (“HR”)

Manager stating that HBSI “has a standard practice of hiring

individuals with a Bachelor’s degree or higher in Computer

Science or closely related fields.” Id. at 119. The letter

listed 18 Application Analysts, 14 of whom are designated as

“Active.” Id. Eleven of these Application Analysts are also

listed on the spreadsheet. Compare id., with AR, ECF No. 23-1 at

106.

USCIS determined that the evidence provided

35
 “do[es] not show that you ‘normally’ require a bachelor’s
degree or higher or its equivalent in a specific specialty
because the documents do not show your requirements upon
hiring workers. You did not provide probative evidence such
as internal job descriptions or job postings to show that you
“normally” require a bachelor’s degree or higher or its
equivalent in a specific specialty for the proffered
position.”

Id. at 11.

HBSI argues that “the evidence shows that [it] always

requires a degree in computer science for its computer systems

analysts.” Pl’s MSJ, ECF No. 18-1 at 30. USCIS responds that the

Agency “acted well within its discretion in finding that HBSI

failed to carry its evidentiary burden on [this] criterion

because: (1) the fact that the beneficiaries of HBSI’s eight

2018 petitions have master’s degrees in computer science “does

not constitute evidence” to satisfy this criterion, Def.’s XMSJ,

ECF No. 19-1 at 35; (2) the “unsupported and conclusory

statement from the HR manager . . . has little, if any probative

value,” id. at 36; (3) even though USCIS “effectively conceded

that most of the employees whose educational information the

company provided appeared to have bachelor’s degrees or higher

in computer science, computer information systems, information

technology, or closely related degrees in the field,” this does

not satisfy the requirement because HBSI’s failure to “provide

probative evidence, such as internal job descriptions, or job

postings,” meant that it did not “show that [HBSI] ‘normally’

36
require[s] a bachelor’s degree or higher or its equivalent in a

specific specialty for the proffered position,” id. at 37

(citing AR); and (4) assuming that the Application Analyst

position does have a degree requirement, HBSI did not

demonstrate that a degree was in fact required for the position,

id. at 37.

Except for one decision, the Court is satisfied that USCIS

did not abuse its discretion when it determined that HBSI failed

to demonstrate that it normally requires a degree or its

equivalent in a specific specialty for the position. HBSI’s

argument that “the evidence shows that [it] always requires a

degree in computer science for its computer systems analysts,”

Pl’s MSJ, ECF No. 18-1 at 30; is unpersuasive. First, the

evidence that all eight of the petition beneficiaries have

master’s degrees in computer science is not probative because it

does not demonstrate a past practice. See Innova Solutions, Inc.

v. Baran, 338 F. Supp. 3d 1009, 1024 (N.D. Ca. 2018) (finding

that “USCIS articulated a rational and ample basis for its

decision” when the employer failed to demonstrate that it had,

in the past, required relevant employees to have certain

degrees); Palace Wine & Spirits, Inc. v. USCIS, Civ. A. No. 11-

0402, 2012 WL 19-1331, at 3 (D. Minn. May 25, 2012) (finding no

abuse of discretion when USICS determined that this criterion

had not been met based on the employer’s prior hiring history

37
for the position). HBSI does not attempt to distinguish the

persuasive authority relied on by USCIS. See Pl.’s Opp’n, ECF

No. 21 at 15-16. Second, all the spreadsheet demonstrates is

that each of the 11 “Active” Applications Analysts on the list

have a bachelor’s degree or higher in computer science, computer

information systems, information technology, or closely related

degrees in the field. The spreadsheet is undated and there is no

information about the hiring date of any of the Active analysts.

See AR, ECF No. 23-1 at 106. Third, other than the spreadsheet

and one of the educational records, HBSI did not submit any

evidence regarding its past practices to corroborate the

information in the HR Manager’s letter. HBSI was provided with

detailed guidance about the types of evidence that would enable

it to satisfy this criterion, but it failed to do so.

Accordingly, it was not arbitrary, capricious, or an abuse of

discretion for USCIS to determine that HBIS failed to meet its

burden on this criterion.

The Court finds, however, that USCIS did abuse its

discretion with regard to the decision on the petition on behalf

of Mr. Pandya. USCIS provided the following rationale for HBSI’s

failure to satisfy this criterion:

You provided documentation of your Computer-
related employees and evidence of their degree
educational backgrounds. However, the
evidence that you submitted are for the

38
 employees in a different positions [sic] all
together.

AR, ECF No. 23-7 at 7. However, the evidence submitted for Mr.

Pandya is the same as that submitted for the other beneficiaries

–specifically for Application Analysts. See AR, ECF No. 23-7 at

93. Accordingly, the determination for Mr. Pandya will be

remanded to USCIS to make a new determination consistent with

this Memorandum Opinion.

4. USCIS Did Not Abuse Its Discretion In
Determining That HBSI Failed to Demonstrate That
”The Nature of the Specific Duties Are So
Specialized And Complex That Knowledge Required
to Perform the Duties is Usually Associated With
the Attainment of a Baccalaureate or Higher
Degree”

In the RFE, USCIS informed HBSI of the types of evidence

that could be submitted to satisfy this criterion. Two

categories of evidence are identical to the evidence listed for

§ 214.2(h)(4)(iii)(A), and in addition, HBSI was informed that

it could explain, among other things, how the nature of the

duties “are so specialized and complex, that they are usually

associated with the attainment of a bachelor’s degree or higher

in a specific field of study.” AR, ECF No. 23-1 at 32. In

response, HBSI provided a narrative in which it asserted that

“the specific duties are indeed specialized and complex [such]

that the knowledge required to perform [them] is usually

39
associated with the attainment of a baccalaureate or higher

degree.” AR, ECF No. 23-1 at 50.

USCIS determined that HBSI had not met its burden because

it failed to demonstrate that: (1) “the relative specialization

. . . as an aspect of the position”; (2) “how the duties of the

proffered position elevate [it] to a specialty position”; (3)

the “duties were described in generalized and abstract terms”

insufficient to show that they “are so specialized and complex

that that the knowledge required to perform [them] is usually

associated with the attainment of a bachelor’s degree or its

equivalent in a specific specialty”; (4) “[i]t appears that the

beneficiary will perform the normal duties of a computer systems

analyst without any additional specialization or complexity that

is usually associated with the attainment of a bachelor’s degree

or higher”; and (5) the designation of the position at Wage

Level 1 is the lowest level as compared with other positions in

the occupation. AR, ECF No. 23-1 at 12.

Similar to the Court’s analysis of the second prong of §

214.2(h)(4)(iii)(A), here, USCIS’s analysis of the evidence

submitted was reasonable. HBSI asserted that the job duties were

so complex and specialized that they are usually associated with

a degree but failed to explain why. HBSI’s only argument is to

point to its analysis of the second criterion, which the Court

has already rejected. Accordingly, it was not arbitrary,

40
capricious, or an abuse of discretion for USCIS to determine

that HBSI failed to meet its burden on this criterion.

V. Conclusion

For the foregoing reasons, HBSI’s motion for summary judgment

is GRANTED IN PART AND DENIED IN PART and USCIS’s cross motion

for summary judgment is GRANTED IN PART AND DENIED IN PART. The

Court REMANDS this matter to USCIS for further proceedings

consistent with this Memorandum Opinion. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
September 20, 2021

41