SEE, Inc. v. Walsh

581 F.Supp.3d 265

SEE, INC., et al., Plaintiffs,

v.Marty WALSH, et al., Defendants.

Civil Action No. 20-2984 (RDM)

United States District Court, District of Columbia.

Signed January 26, 2022

Michael E. Piston, Piston & Carpenter, P.C., New York, NY, for Plaintiffs.

Stephen DeGenaro, Joseph F. Carilli, Jr., U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants United States Department of Labor, Board of Alien Labor Certification Appeals, Al Stewart.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

This case poses the question whether it is enough to be right on the merits of an administrative action, even if wrong on the process. Plaintiffs See, Inc. ("See") and Nimitt Nishith Bhatt bring this action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , seeking to set aside the Department of Labor's denial of See's application for a "permanent employment certification" on Bhatt's behalf. A Certifying Officer denied See's application on the ground that Bhatt's skills described in the employment experience portion of the application did not match the skills listed in the minimum job requirements portion of the application. See requested reconsideration of the Certifying Officer's decision and, in support of that request, submitted two letters from Bhatt's former employers, which represented that Bhatt did, in fact, possess the skills that the Certifying Officer identified as missing from the description of Bhatt's employment experience contained in the application. The Certifying Officer denied See's request for reconsideration, explaining that, although the letters showed that Bhatt possessed the required skills, Department of Labor regulations "allow labor certification to be granted solely on the basis of the information" contained in the application. Dkt. 18 at 27; see also 20 C.F.R. §§ 656.11(b) & 656.24(g)(2). The Board of Alien Labor Certification Appeals ("Board") affirmed.

Plaintiffs ask this Court to set aside the Board's decision pursuant to the APA. Plaintiffs allege that because the Certifying Officer acknowledged that the letters showed that Bhatt had the requisite experience and because the Board accepted that premise, the Board's decision was arbitrary and capricious and unsupported by substantial evidence. Dkt. 6 (Am. Compl. ¶¶ 36–41). In other words, Plaintiffs contend that because Bhatt's qualifications are, in essence, uncontested, the Certifying Officer and the Board had only one choice; they were required to grant the application. Defendants disagree, arguing that See failed to comply with the regulatory requirements for completing the application, and thus the Board properly upheld the Certifying Officer's rejection of See's request for reconsideration.

The parties’ cross-motions for summary judgment are now pending before the Court. For the following reasons, the Court concludes that the Board lawfully determined that See's process failure required rejection of its application, even if, as a matter of substance, See was able to show on reconsideration that Bhatt had the necessary qualification. The Court, accordingly, will GRANT the Defendants’ motion, Dkt. 13, and will DENY Plaintiffs’ motion, Dkt. 12.

I. BACKGROUND

A. Statutory and Regulatory Background

Pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , a U.S. employer seeking permanently to employ a noncitizen may apply for an employment-based immigration visa on the noncitizen's behalf. For certain categories of employment-based immigrants, including the category of "skilled workers" at issue in this case, see 8 U.S.C. § 1153(b)(3), the first step in the visa application process is to obtain a "permanent labor certification" from the Department of Labor by filing a "completed Department of Labor Application for Permanent Employment Certification form" or "ETA Form 9089." 20 C.F.R. § 656.17(a)(1). Applications are "screened" by a Department of Labor Certifying Officer and are "certified," "denied," or "selected for audit." Id. § 656.17(b)(1). A Certifying Officer will certify an application if she determines, based on the information contained in the Form 9089, that (1) "there are not sufficient [U.S.] workers who are able, willing, qualified[,] ... and available" to perform the job, and (2) employing the noncitizen "will not adversely affect the wages and working conditions of workers in the United States similarly employed." 8 U.S.C. § 1182(a)(5)(A)(i) ; see also 20 C.F.R. § 656.2(c).

The Department of Labor has promulgated regulations implementing the labor certification process. See 20 C.F.R. §§ 656.1 – 41. Under those regulations, prior to filing an ETA Form 9089, an employer must attempt to recruit U.S. workers for the job opportunity for which certification is sought, and the employer must report the results of its recruitment efforts to the agency. Id. § 656.17(e) – (g). As part of the recruitment process, the employer must place a "job order" with the relevant state workforce agency and must place at least two "print advertisements" in newspapers or professional journals. Id. § 656.17(e)(1)(i), (2). The job requirements and duties listed in those recruitment materials may not "exceed" those listed on the ETA Form 9089. Id. § 656.17(f)(6). Similarly, the ETA Form 9089's description of the job requirements and duties "must represent the employer's actual minimum requirements for the job." Id. § 656.17(i)(1). If the noncitizen "already is employed by the employer" at the time of filing the ETA Form 9089, the Certifying Officer will "review the training and experience possessed by the alien at the time of hiring by the employer" when considering "whether the job requirements represent the employer's actual minimums." Id. § 656.17(i)(3). The purpose of these regulations is to prevent "the situation of an employer requiring more stringent qualifications of a U.S. worker than it requires of the alien; the employer is not allowed to treat the alien more favorably than it would a U.S. worker." Tri-Town Family Dental, LLC , 2016-PER-00231, 2019 WL 3453199, at *2 (Bd. Alien Lab. Cert. App. July 19, 2019) (quotation marks omitted).

The labor certification regulations also include strict requirements for completing and filing the Form 9089. Employers "should not" submit "[d]ocumentation supporting the application for labor certification" with the form, but if a Certifying Officer "notifies the employer that its application is to be audited, the employer must furnish required supporting documentation prior to a final determination." 20 C.F.R. § 656.17(a)(3) ; see also id. § 656.10(f) ("Copies of applications for permanent employment certification filed with the Department of Labor and all supporting documentation must be retained by the employer for 5 years from the date of filing the [Form 9089]."). Significantly, "[i]ncomplete applications will be denied," id. § 656.17(a)(1), and, once an application is filed, "[r]equests for modifications to [the] application will not be accepted," id. § 656.11(b).

If a Certifying Officer denies an employer's application, the employer may "request reconsideration within 30 days from the date of issuance of the denial." Id. § 656.24(g)(1). A request for reconsideration may not include any supporting documentation except the following:

(i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or

(ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of § 656.10(f).

Id. § 656.24(g)(2)(i)–(ii). Even if an employer submits documentation with its request for reconsideration that fits within one of the two exceptions provided in Section 656.24(g)(2), "the Certifying Officer will not grant any request for reconsideration where the deficiency that caused denial resulted from the applicant's disregard of a system prompt [when filling out the Form 9089] or other direct instruction." Id. § 656.24(g)(3).

If an application is denied or if the Certifying Officer denies a request for reconsideration, an employer may request review by the Board. Id. § 656.26(a). Alternatively, the employer may simply restart the certification process by filing "a new application ... at any time." Id. § 656.24(e)(5).

B. Factual Background

On November 21, 2014, See filed an ETA Form 9089 on behalf of its employee, Nishith Bhatt, for the position of "IT Systems Coordinator." Dkt. 18 at 39. Section H of the standard Form 9089 requires U.S. employers to describe, among other things, the "duties" and "specific skills or other requirements" of the job for which the employer seeks to permanently employ a noncitizen. Id. at 40. See stated in Section H that the IT Systems Coordinator position required the following skills:

[A]t least three years of experience within Optical Industry in the position offered, utilizing/managing AcuityLogic applications and databases, Telerik controls, nHibernate (ORM tool), Visual Studio 2008 or later, .net framework 3.5 or later, ASP.Net, C#, Ado.Net, Visual Basic, Classic ASP, XML, Crystal Reports and SQL Server 2008 or later, and design and development of web-based applications using Visual Studio, HTML Script, JavaScript, CSS, XML/XSLT.

Id.

Section K of the ETA Form 9089 requires the employer to list "all jobs the alien has held during the past 3 years." Id. at 43. For each job, the form requires the U.S. employer to describe the "[j]ob details," meaning the "duties performed, use of tools, machines, equipment, skills , qualifications, certifications, licenses, etc." Id. at 44 (emphasis added). In addition, Section K directs the U.S. employer to describe "any other...