Pandya v. Jaddou

581 F.Supp.3d 476

Deep Mandhubhai PANDYA, Plaintiff,

v.Ur M. JADDOU, Director, United States Citizenship and Immigration Services, Defendant.

19-CV-6657 (GRB)(AYS)

United States District Court, E.D. New York.

Signed January 25, 2022

Brad Banias, Pro Hac Vice, Wasden Banias LLC, Charleston, SC, for Plaintiff.

Megan Jeanette Freismuth, U.S. Attorney's Office, Central Islip, NY, for Defendant Mark Koumans.

MEMORANDUM AND ORDER

GARY R. BROWN, United States District Judge:

Plaintiff, Deep Mandhubhai Pandya, brings this action against United States Citizenship and Immigration Services ("USCIS") Director, Ur M. Jaddou,¹ under the Administrative Procedure Act ("APA") alleging USCIS's denial of a petition to extend an improvidently issued H-1B visa was arbitrary and capricious. Defendant moves to dismiss for lack of subject matter jurisdiction and failure to state a claim under Fed. R. Civ. P. 12, or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated herein, defendant's motion for summary judgment is GRANTED.

Procedural History

Plaintiff and his wife, Pooja Deep Pandya, instituted the instant action on November 25, 2019. Docket Entry ("DE") 1. On March 9, 2020, the parties stipulated to the dismissal of Ms. Pandya's claim for unreasonable delay in the adjudication of her EB-5 visa. DE 11, 12. On May 13, 2020, defendant filed a copy of the Administrative Record ("AR") with the Court. DE 22. On May 20, 2020, defendant filed a corrected copy of the AR, which contained eight additional pages consisting of USCIS's electronic records of plaintiff's initial visa application. DE 24. Jennifer A. Roller, the Section Chief responsible for the adjudication of H-1Bs, explained that these electronic records were overlooked in the compilation of the AR although USCIS had referred back to them when adjudicating plaintiff's application. DE 23, ¶¶ 5, 7. After the late Judge Feuerstein's passing, this case was reassigned to the undersigned. Electronic Order dated 06/03/2021. On October 18, 2021, defendant filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. DE 37.

Background

An H-1B visa is a nonimmigrant worker classification for non-citizens performing services in a specialty occupation. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). "The Government may issue up to 65,000 regular H-1B visas in a given fiscal year (the ‘regular cap’), and it may also issue an additional 20,000 H-1B visas to foreign citizens who have earned postgraduate degrees from United States universities under the ‘Masters cap.’ " Controlled Air, Inc. v. Barr , No. 3:19-CV-1420 (JBA), 2020 WL 979874, at *1 (D. Conn. Feb. 28, 2020), aff'd , 826 F. App'x 121 (2d Cir. 2020) (citing 8 U.S.C. § 1184(g) ). Section 1184(g)(5)(C) requires that a Master's cap applicant earn their postgraduate degree from "a United States institution of higher education (as defined in section 1001(a) of title 20)," which, in turn, defines a U.S. institution of higher education as a "public or other nonprofit institution[.]" 20 U.S.C. § 1001(a)(4).

Facts

Plaintiff is a citizen of India and resides in Suffolk County, New York. Compl. ¶ 1. Plaintiff's wife is also a citizen of India and together they have two US Citizen children. Compl. ¶¶ 2, 57. In March 2009, plaintiff earned an MBA from Stratford University. AR 43.² On September 6, 2012, USCIS approved a Form I-129, Petition for Nonimmigrant Worker filed on behalf of Pandya by his former employer, Gaming Elite. AR 310-11. USCIS's records indicate that Pandya's initial visa for Gaming Elite fell under the "MAS" category, which, as H-1B Section Chief Jennifer Roller explained, means the petition was selected for the Master's cap. AR 311; DE 23, ¶ 8. Plaintiff alleges that "[u]pon information and belief, [his H-1B visa] was selected as part of the H1B lottery for beneficiaries with bachelor's degrees," Compl. ¶ 59, but does not offer any proof. On September 20, 2017, plaintiff's new employer, Computech Computers, Inc., petitioned for an extension of plaintiff's H-1B status, which was set to expire on September 30, 2017. AR 95, 108-20. On August 8, 2018, USCIS denied the application because:

As evidence that your initial petition was approved under the Master's Cap Exemption, you submitted a copy of the master's or higher degree issued to the beneficiary from Stratford University. However, it was determined that ... Stratford is a private for-profit university. Thus, the institution does not meet all of the requirements as defined in section 101(a) of the Higher Education Act of 1965 (Sec 20 USC 1001(a), supra).

AR 87.

In a motion to reopen/reconsider filed on September 4, 2018, Computech Computers, Inc. admitted, "petitioner ... [was] not aware of the fact that Stratford University was not a non-profit organization ... if they had known they would not have submitted the petition under the master's cap, since the H-1B Regular Cap was still open and available on September 27, 2011." AR 146. The company did not challenge USCIS's characterization of Stratford University as a for-profit institution. Id.

Plaintiff appealed USCIS's denial, and the agency denied the application once again on November 1, 2018:

The petition sought to classify the beneficiary as a H-1B under section 101(A)(15)(H)(i)(b) of the Immigration and Nationality Act, as amended. That petition was denied because the initial petition was approved under the Master's Cap Exemption. You submitted a copy of the master's or higher degree listed to the beneficiary from Stratford University. It was determined from The National Center for Education website (www.nces.ed.gov) that Stratford University is a private for profit university. Thus, the institution does not meet all of the requirements as defined in section 101(a) of the Higher Education Act of 1965 (see 20 USC 100l(a), supra). In order to qualify for an H-1B numerical cap exemption based upon a master's or higher degree, the conferring institution must have qualified as a "United States institution of higher education" at the time the beneficiary's degree was earned. See Matter of A-T-Inc. Adopted Decision 2017-04 PM-602-0145.

Filing of EAC1126050648 was approved on September 6, 2012, under the master's degree exemption. Since there were no available numbers under the regular cap category at the time of approval, your initial petition could not have been counted under the regular cap category. Therefore, the petition, EAC1126050648, was approved in error.

Although the beneficiary has had petitions previously approved using the same and/or similar evidence in past petition(s), USCIS is not required to continue to issue approvals since those prior approvals may have been in error. See Matter of Khan, 14 I. & N. Dec 397 (BIA 1973), by extension; Matter of M-, 4 I&N Dec 532 (BIA 1951; BIA, A.G. 1952) where it was found this service is not required to approve applications or petitions where eligibility has not been demonstrated because of prior approvals which may have been erroneous.

Since the beneficiary has never been counted against the regular H-1B Cap, the information provided in this petition is not applicable. The beneficiary is not eligible for the cap exemption under the requirements specified in Section 214(g)(7) of the INA related to extensions. Based on the requested employment start date, the beneficiary would be subject to FY 2012 numerical limitation. However, you filed this petition after the final receipt date of the FY 2012 CAP, which had been closed on November 22, 2011.

***

Accordingly IT IS ORDERED that the previous decision will be, and is hereby, affirmed. The petition is denied.

AR 93–94.

As the defendant summarized, "[p]laintiff was erroneously counted against the master's cap and the regular cap had closed by the time the petition was decided, thus there is no cap allocation for Plaintiff to retain." DE 38, Def. Mot. at 12.

On December 3, 2018, another immigration attorney filed yet another motion to reopen. AR 98. An exhibit filed in support of that motion stated that Stratford University is a "for-profit institution" which in October 2019 became a "public benefit corporation." AR 107. On July 19, 2019, USCIS reopened proceedings but once again denied the petition because plaintiff's initial H-1B was issued in error since Stratford University was a for-profit institution. AR 5.

Standing

The government argues that Mantena v. Johnson , 809 F.3d 721, 730, 736 (2d Cir. 2015) – which held that the beneficiary of a denied immigrant visa petition had standing in federal court – is distinguishable because this case involves a nonimmigrant visa. Def. Mot. at 4. Nothing in Mantena ’s reasoning supports that tenuous distinction. In Mantena , the Second Circuit held that "[w]hat is determinative is that [plaintiff] falls within the zone of interests protected by the statute, which conveys Congress's intent to grant individuals such as [plaintiff] the right to sue under the statute in federal court." Id. at 733. The court disregarded the agency's definition of standing for administrative appeals as set forth in 8 C.F.R. § 103.3(a)(1)(iii)(B) – which states that beneficiaries of visa petitions lack standing – because the agency's definition cannot supplant Article III standing in federal court. Id. at 732. "The text of the INA leaves no doubt that the interests of employment-based visa petition applicants ... are directly related to the purposes of the INA." Id. at 733 (citing Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec. , 783 F.3d 156, 164 (3d Cir. 2015) ). The same holds true of plaintiff in the instant case, who also challenges the denial of an employment-based visa petition. "While this Circuit has not yet addressed whether the beneficiaries of non immigrant visa petitions similarly have standing to seek judicial relief when faced with petition denials by USCIS, court...