Espindola v. United States Dep't of Homeland Sec.

PEDRO ESPINDOLA, JAY VANDERVORT, and UP ANALYTICS, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, CHAD WOLF, as Secretary of Homeland Security, ALEJANDRO MAYORKAS, as Director of U.S. Citizenship and Immigration Services, and ROSEMARY LANGLEY MELVILLE, California Service Center Director, Defendants.

No. 1:20-cv-1596 (MAD/DJS)

United States District Court, N.D. New York

August 12, 2021

WHITEMAN OSTERMAN & HANNA LLP SETH R. LEECH, ESQ. Attorneys for Plaintiffs

U.S DEPARTMENT OF JUSTICE JOHN D. HOGGAN, JR., AUSA Attorneys for Defendants

MEMORANDUM-DECISION AND ORDER

Mae A D'Agostino, U.S. District Judge

On December 22, 2020, Plaintiffs Pedro Espindola, Jay Vandervort, and Order Up Analytics, commenced this action against Defendants United States Department of Homeland Security, Alejandro Mayorkas as the Secretary of Homeland Security, Tracy Renaud as the Director of U.S. Citizenship and Immigration Services ("USCIS"), and Donna Campagnolo as California Service Center Director.^[1] Specifically, Plaintiffs seek a writ of mandamus to compel the USCIS to accept and adjudicate an H-1B visa petition on behalf of Plaintiff Espindola. Dkt. No. 1 at ¶ 18.

On March 10, 2021, Defendants filed a motion to dismiss this action for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 7.

II. BACKGROUND

A. Regulatory Framework

An H-1B visa, which Plaintiff ultimately seeks, grants non-citizens a nonimmigrant worker classification to perform services for a sponsoring employer in a specialty occupation. 8 U.S.C. § 1101(a)(15)(H)(i)(b). Congress has limited the "total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year" to 85, 000. 8 U.S.C. § 1184(g).

To fairly allocate the 85, 000 H-1B visas, the Department of Homeland Security has set up a strict regulatory framework. First, an employer registers to file a petition on behalf of a beneficiary during a fourteen-day registration window on the USCIS website. 8 C.F.R. §§ 214.2(h)(8)(iii)(A)(1)-(3). If the USCIS receives more registrations than the 85, 000-cap permits, the agency closes the registration period and randomly selects the registrations necessary to meet the cap. 8 C.F.R. § 214.2(h)(8)(iii)(A)(5)(ii); 8 C.F.R. § 214.2(h)(8)(iii)(A)(6)(ii). This procedure is commonly referred to as the lottery.

The unselected registrations remain on reserve for the fiscal year in case the selected registrations do not receive all the available visas. 8 C.F.R. § 214.2(h)(8)(iii)(A)(7). If the unselected registrations still do not fill the H-1B cap, then the USCIS will reopen the registration period and, if necessary, conduct another lottery. Id.

If a registration is selected, the petitioner is notified that it is eligible to file an H-1B capsubject petition on behalf of the beneficiary "only within the filing period indicated on the notice." 8 C.F.R. § 214.2(h)(8)(iii)(D)(1). "An H-1B cap subject petition must be properly filed within the filing period indicated on the relevant selection notice.... If the petitioners do not meet these requirements, the USCIS will deny or reject the H-1B cap-subject petition." 8 C.F.R. § 214.2(h)(8)(iii)(D)(2).

The regulations delineate reasons for rejection of a benefit request, including "[s]igned with a valid signature." 8 C.F.R. § 103.2(a)(7)(ii)(A). The regulation is clear, "[a] benefit request which is rejected will not retain a filing date." Id.

B. Factual Background

On March 28, 2020, Plaintiff Order Up Analytics was notified that its registration on behalf of beneficiary Plaintiff Pedro Espindola was selected in the lottery process. Dkt. No. 1 at ¶ 13. Accordingly, on June 26, 2020, Plaintiffs Order Up and its CEO Jay Vandervort filed an H-1B petition on behalf of its employee, Plaintiff Espindola. Id. at ¶ 9. The deadline for the USCIS to receive the H-1B petition was June 30, 2020. Id. at ¶ 12.

Plaintiffs allege that they submitted a "complete" H-1B petition, but that the petition was rejected because it was missing page sixteen of Form I-129, a required signature page. Id. at ¶ 10. Plaintiffs "strongly believe" that they included the missing signature page. Id. The USCIS maintains that the missing page was never submitted. Id. at ¶ 14.

Plaintiffs resubmitted the H-1B petition five times following its initial rejection. Id. The USCIS rejected the resubmissions as untimely because they were received after the June 30 deadline. Id. Plaintiffs further allege that their last submitted petition, on September 22, 2020, was never returned by the USCIS. Id. at ¶ 16.

Plaintiffs bring two causes of action. First, Plaintiffs seek to compel Defendants to "immediately accept Plaintiff's H-1B petition as of the date of the USCIS timestamp of the original petition submitted June 28, 2020" because "Defendants' refusal to act in this case is arbitrary capricious, and not in accordance with the law." Id. at ¶¶ 25-26. The Court interprets the request to compel administrative action as an action pursuant to the Mandamus Act, 28 U.S.C. § 1361. Second, Plaintiffs allege Defendants' delay and refusal to adjudicate the petition violate the Administrative Procedures Act, 5 U.S.C. § 701 et seq. Dkt. No. 1 at ¶¶ 28-30.

III. DISCUSSION

A. Subject Matter Jurisdiction

Federal courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). Federal courts are courts of limited jurisdiction and may not preside over cases absent subject matter jurisdiction. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005). When subject matter jurisdiction is lacking, dismissal is mandatory. See United States v. Griffin, 303 U.S. 226, 229 (1938); Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

1. Mootness

"Article III of the Constitution restricts the power of federal courts to 'Cases' and 'Controversies.'" Chafin v. Chafin, 568 U.S. 165, 171 (2013). "Federal Courts may not 'decide questions that cannot affect the rights of litigants in the case before them' or give 'opinion[s] advising what the law would be upon a hypothetical state of facts.'" Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). Thus, a case becomes moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Id. (quoting Already LLC v. Nike, Inc., 568 U.S. 85, 90 (2013)) (internal quotation marks omitted).

Defendants assert that the case is moot because "the relief sought cannot be granted." Dkt. No. 7 at 13. The USCIS has already completed the lottery and received petitions necessary to reach the 85, 000 cap on H-1B visa for Fiscal Year 2021. Id.; Dkt. No. 8 at 9. Defendants argue that they therefore do not have the statutory power to grant the remedy sought. Dkt. No. 7 at 13.

Defendants direct the Court to cases that have strictly construed the USCIS's power to grant relief with respect to diversity visas following the end of the fiscal year. See Mohamed v. Gonzales, 436 F.3d 79 (2d Cir. 2006); National Basketball Retired Players Association v. USCIS, No. 16 CV 09454, 2017 WL 2653081, *4 (N.D. Ill. June 20, 2017); Zaman v. Rice, No. CV-05-4641 CPS, 2006 WL 1967486, *2 (E.D.N.Y. July 12, 2006). These cases hold that the USCIS (or its predecessor, the INS) does not have the statutory power to issue diversity visas after the end of the fiscal year, and were therefore incapable of remedying the plaintiffs' claims, rendering the action moot. Defendants cite no case which applies the same principle to the H-1B cap.

Here, the H-1B cap has not been reached. Defendants argue that the case is moot because they have "received the number of H-1B petitions projected as needed to reach the statutory H-1B numerical allocations for FY2021." Dkt. No. 7 at 13. Defendants, however, have not issued H-1B visas to reach the cap, they merely received sufficient H-1B petitions to issue the maximum number of visas sometime this year.

Accordingly, Defendants still retain the power to issue H-1B visas in this fiscal year. Defendants are therefore mistaken that they already lack statutory authority to grant the relief sought in this case. The statutory cap states "total number of aliens who may be issued visas," may not exceed 85, 000. 8 U.S.C. § 1184(g) (emphasis added). Until 85, 000 H-1B visas have been issued, the USCIS retains the power to grant the relief Plaintiffs seek and this case is not moot.

2. Mandamus Act

Plaintiffs' first cause of action asks the Court to compel the USCIS to accept Plaintiffs' first H-1B petition as timely filed. Because it seeks a writ of mandamus to compel an administrative action, the Court interprets it as a request pursuant to the Mandamus Act. See, e.g., Fangfang Xu v. Cissna, 434 F.Supp.3d 43, 55 (S.D.N.Y. 2020); L.M. v. Johnson, 150 F.Supp.3d 202, 206 (E.D.N.Y. 2015).

The Mandamus Act provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. To obtain relief, a plaintiff must show that "(1) there is a clear right to the relief sought; (2) the Government has a plainly defined and peremptory duty to perform the...