InspectionXpert Corp. v. Cuccinelli

INSPECTIONXPERT CORPORATION, Plaintiff, v. KENNETH T. CUCCINELLI, Acting Director,United States Citizenship and Immigration Services,¹ Defendant.

1:19cv65

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

March 5, 2020

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States Magistrate Judge for a recommendation on "Defendant's Motion for Summary Judgment" (Docket Entry 17)² (the "Defendant's Motion") and "Plaintiff's Motion for Summary Judgment" (Docket Entry 19) (the "Plaintiff's Motion"). For the reasons that follow, the Court should grant Plaintiff's Motion and deny Defendant's Motion.

BACKGROUND

In April 2018, InspectionXpert Corporation (the "Plaintiff" or "IXC") filed a Petition for a Nonimmigrant Worker (the "Petition") with the United States Citizenship and Immigration Service (the "USCIS" or the "Agency"), seeking a "H-1B Specialty Occupation" visa (a "H-1B visa") (CAR 553)³ for Sathish Kasilingam ("Kasilingam" or the "beneficiary"), whom IXC wished to employ as a "Quality Engineer" (CAR 545). (See, e.g., CAR 545-554.) IXC, a software publisher (see CAR 546) specializing in "technology products for Quality and Mechanical Engineers working in the manufacturing industry," creates "products [that] lie at the intersection of mechanical engineering and computer science" (CAR 92). (See also CAR 480 (explaining that "[IXC] was designed to simplify the process of creating inspection forms and ballooned inspection drawings for first-article and in-process inspections," which "reports and drawings are created directly from CAD drawings . . . as well as CAD-neutral raster formats")⁴.)

Kasilingam, a citizen of India, originally entered the United States on an F-1 student visa to pursue a Master of Science degree in Mechanical Engineering. (See, e.g., CAR 564-587.) Afterobtaining his mechanical engineering master's degree from the State University of New York at Buffalo in February 2017 (see CAR 590; see also CAR 574), Kasilingam obtained authorization to work at IXC from March 2017 through February 2018 (see CAR 572) as a "Quality Engineer" (CAR 289) pursuant to 8 C.F.R. § 214.2(f)(10), which permits "a student [to] apply to USCIS for authorization for temporary employment for optional practical training [("OPT")] directly related to the student's major area of study," 8 C.F.R. § 214.2(f)(10)(ii)(A).⁵ Thereafter, IXC prepared the Petition, seeking to employ Kasilingam as a "Quality Engineer" (CAR 545) from October 1, 2018, to August 29, 2021 (see CAR 549).

In connection with the Petition, IXC submitted a "Labor Condition Application for Nonimmigrant Workers" (the "LCA") to the United States Department of Labor. (CAR 557-563.) The LCAidentified the proffered position as a "Quality Engineer," with the "SOC (ONET/OES) code[ of] 15-1199"⁶ and the "SOC (ONET/OES) occupation title[ of] Computer Occupations, All Other." (CAR 558.) The Department of Labor certified the LCA on March 13, 2018. (CAR 562.)⁷ IXC then tendered to USCIS its Petition, which included the LCA, the H-1B application, and information regarding IXC, Kasilingam, and the Quality Engineer position. (See CAR 542-615.)

As relevant here, IXC's letter in support of the Petition states the following regarding the Quality Engineer position:

Mr. Kasilingam is being offered temporary employment in the position of Quality Engineer with [IXC] in [its] Apex, North Carolina location. As described below, this position is a "specialty occupation" for which H-1B status is appropriate.

In this position, Mr. Kasilingam will use his knowledge of CAD and mechanical engineering to develop, design, and execute software test plans, scenarios and scripts for [IXC's] CAD-focused software in order to identify software problems and their causes. He will define test parameters, design tests, interpret results, and analyze test trends. He will document defects and report defects to software developers. He will write automated tests using various regression automation suites and test technology. Applying his knowledge of mechanical engineering and CAD, he will participate in product design reviews to provide input on functional requirements, product designs, schedules and potential problems. He will serve as the company's "quality advocate" for his functional component area (mechanical engineering) and will be responsible for documenting software defects, use a defect tracking system, andpresent his reports regarding defects to the software developers.

Mr. Kasilingam will be responsible for planning test schedules and strategies in accordance with project scope and/or required delivery dates. He will monitor defect resolution efforts and track the progress of resolutions/successes. He will identify, analyze, and document problems with program function, output, online screen, or content. He will also supervise intern employees, as required.

This demanding, professional position qualifies as an occupation for which H-1B status is appropriate, due to the specialized nature of the duties to be performed in this position. For these reasons, [IXC] requires that the individual holding this position possess a Bachelor's degree or higher in Mechanical Engineering, Computer Science or a related technical or engineering field (or the equivalent).

(CAR 594-595.)

USCIS randomly selected the Petition for consideration in the H-1B visa "lottery" (Docket Entry 1, ¶ 22). See Walker Macy LLC v. USCIS, 243 F. Supp.3d 1156, 1163-65 (D. Or. 2017) (discussing relevant selection procedures); see also Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens, 84 FR 888-01 (Jan. 31, 2019) (explaining changes in selection process effective April 1, 2019). On August 13, 2018, USCIS issued a "Request for Evidence" (a "RFE") (CAR 531 (emphasis omitted)), explaining that "USCIS[] requires additional evidence to process" IXC's Petition (id.) "and determine whether [IXC] and [Kasilingam] are eligible" for a H-1B visa (CAR 532). (See CAR 531-541.)

IXC timely responded to the RFE, submitting approximately 250 pages of additional information. (See CAR 273-520.) As part of this response, IXC submitted another letter from its founder and CEO, Jeff Cope ("Cope"), regarding IXC, the Quality Engineer position, and Kasilingam's qualifications for that job. In relevant part, the letter explains:

[IXC] was designed to simplify the process of creating inspection forms and ballooned inspection drawings for first-article and in-process inspections. These reports and drawings are created directly from CAD drawings of just about any file format, including AutoCAD, SolidWorks, and SolidEdge, as well as CAD-neutral raster formats such as PDF and TIFF. [IXC] ha[s] been delivering integrated software solutions for manufacturing and quality inspection since inception and ha[s] a record of five years of high double-digit annual revenue growth. [IXC is] a preferred provider of quality solutions for large OEMs and job shops that extensively use [IXC's] CAD software inspection products across the world. [IXC] currently employ[s] 16 employees at [its] office in Apex, North Carolina and had gross annual sales of approximately $2.5M in 2017.

Sathish Kasilingam will serve as Quality Engineer (now renamed Quality Engineer-Product Owner) at [IXC]. His position requires knowledge of mechanical engineering and CAD technical expertise, as [IXC] work[s] closely with mechanical engineering drawings in the development of [IXC's] CAD-focused software programs and Mr. Kasilingam is integrally involved in helping design and test [IXC's] CAD-focused inspection products that are used by engineering design teams around the world.

The percentage of time spent on each day-to-day job duty will vary in response to business needs. In general terms, however, the time can be allocated as follows:

• Applying knowledge of mechanical engineering and CAD to participate in product design reviews and provide input on functional requirements, product designs, schedules and potential problems. (25%)• Identify, analyze, and document problems with program function, output, online screen, or content. (20%)

• Serve as the company's "quality advocate" for the mechanical engineering functional component area. (10%)

• Monitor defect resolution efforts and track the progress of resolutions/successes. (10%)

• Supervise intern employees, as required. (10%)

• Document software defects, use a defect tracking system, and present reports regarding defects to the software developers. (8%)

• Define test parameters, design tests, interpret results, and analyze test trends. (5%)

• Write automated tests using various regression automation suites and test technology. (5%)

• Plan test schedules and strategies in accordance with project scope and/or required delivery dates. (5%)

• Develop, design, and execute software test plans, scenarios and scripts for [IXC's] CAD-focused software in order to identify software problems and their causes. (2%)

This is a professional role where the individual must be able to articulate and respond to a variety of engineering and technical inquiries from [IXC's] software developers in addition to suggesting solutions to improve those systems and products. A Bachelor's degree in Mechanical Engineering, Computer Science or a related technical or engineering field will have exposed the individual to the concepts and engineering theories that are required to complete these tasks. Specifically, Mr. Kasilingam obtained the complex knowledge and skills needed to perform this position through the following courses in his Bachelor's and Master's degree programs of study in Mechanical Engineering: . . . .

(CAR 480-481.)

After identifying 53 relevant courses in, inter alia, mathematics, mechanical engineering, and computer science, from Kasilingam's academic studies (see CAR 481-483), the letter continues:

The company has not previously hired for the

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