Next Generation Tech., Inc. v. Johnson
328 F. Supp. 3d 252
S.D. Ill.2017Background
- NGT, an IT/consulting firm, filed an H-1B petition for beneficiary Puspita Deo (initial petition approved in 2009). Deo later entered the U.S. as a B-2 and NGT filed amended petitions in 2010.
- USCIS issued RFEs and a Notice of Intent to Revoke (NOIR), raising concerns about whether NGT had a valid employer-employee relationship with Deo, whether specialty-occupation work was available at filing, and NGT's Chapter 11 bankruptcy and ability to pay the required wage.
- NGT submitted itineraries, an employment agreement, partnership/assignment documents with SAP, investor commitment letters, and an NSF grant award as evidence supporting the petition.
- USCIS revoked approval of the initial petition and denied the amended petition; the AAO dismissed NGT's appeal. Key agency findings: position not established as a specialty occupation at filing, insufficient evidence of continuous employment/itinerary, and financial concerns due to bankruptcy.
- Plaintiffs sued under the Administrative Procedure Act seeking review; they moved for summary judgment. The district court reviewed the administrative record and concluded USCIS either disregarded or failed to explain why it discounted substantial favorable evidence and remanded for further agency consideration. The court dismissed Plaintiffs' due-process claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USCIS's revocation/denial was arbitrary and capricious | USCIS ignored or failed to explain rejection of record evidence (project itineraries, assignment with SAP, investor/NSF funding) that would show specialty-occupation work and availability | USCIS reasonably concluded work was not established at filing, partnership evidence post-dated filing, and financial concerns from bankruptcy justified skepticism | Court: Agency action arbitrary and capricious in parts; remand required for reconsideration/explanation regarding specialty-occupation, employer control, and ability to pay |
| Whether the offered position qualified as a "specialty occupation" | Position (programmer/research engineer developing computational models) required specialized knowledge and a bachelor’s or higher in the field; Occupational Handbook supports that most programmers have bachelor’s degrees | Government emphasized that programmer duties submitted were generic and cited statistics showing some employers hire with less than a bachelor’s | Court: USCIS failed to adequately consider/ explain why record evidence did not meet specialty-occupation criteria; remand ordered |
| Whether a valid employer–employee relationship existed between NGT and Deo | NGT provided itineraries, in‑house project descriptions, supervisory contact, payroll/tax intent, and representations that NGT would hire/pay/supervise — Neufeld factors favor NGT | USCIS reasonably sought end-client documentation and worried that outsourcing/third‑party placements meant lack of petitioner control | Court: Record shows many Neufeld factors favor NGT; USCIS did not fully consider or explain rejection of that evidence; remand required |
| Whether Plaintiffs were denied due process by undisclosed shifting grounds for denial | Plaintiffs claim notices raised new issues and prevented full response | Government contends RFEs, NOIR, NDI, and AAO decisions gave adequate notice and opportunities to respond | Court: No due-process violation; agency provided adequate notice and opportunity; due-process claim dismissed with prejudice |
Key Cases Cited
- Mantena v. Johnson, 809 F.3d 721 (2d Cir.) (beneficiary standing to challenge petition denials in federal court)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S.) (standard for arbitrary and capricious review)
- Nat. Res. Def. Council v. U.S. E.P.A., 658 F.3d 200 (2d Cir.) (agency arbitrary-and-capricious standards and failures to consider important aspects)
- Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7 (2d Cir.) (remand when record insufficient for review)
- Noroozi v. Napolitano, 905 F. Supp. 2d 535 (S.D.N.Y.) (agency must consider pertinent evidence and articulate satisfactory explanation)
- Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (U.S.) (standing principles where at least one plaintiff has standing)