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Utah Life Real Estate Group, LLC v. United States Citizenship and Immigration Services

United States District Court, D. Utah

May 3, 2017

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (California Service Center); LEON RODRIGUEZ, in his official capacity as Director of the United States Citizenship and Immigration Services; and DEPARTMENT OF HOMELAND SECURITY, an agency of the United States, Defendants,


          Jill N. Parrish United States District Court Judge.

         This case arises from defendant United States Citizenship and Immigration Services' (Immigration Services) initial denial of plaintiff Utah Life Real Estate Group, LLC's H-1B petition seeking to classify Amber Sheldon as an H-1B nonimmigrant. Utah Life filed a lawsuit in this court seeking review of this denial. After the lawsuit was filed, Immigration Services administratively reopened the H-1B petition and requested additional information. Immigration Services then filed a motion to dismiss for lack of subject matter jurisdiction, [Docket 20], arguing that the initial denial of the H-1B visa no longer stood as the final agency action on the H-1B petition. The court GRANTS Immigration Services' motion to dismiss.


         The H-1B visa program allows employers to temporarily employ foreign nonimmigrant workers in specialty occupations. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). Employers voluntarily participate in this program by completing a two-step process. An employer must first submit a Labor Condition Application (LCA) to the Department of Labor. 8 U.S.C. § 1182(n)(1). In the LCA, the employer is required to state the specialty occupation, the applicable experience level of the position, the prevailing wage rate of the position in the area of employment, and a commitment to comply with the program requirements. Id. The Department of Labor reviews a LCA only for “completeness and obvious inaccuracies.” Id. Unless the Department of Labor finds that the LCA is “incomplete or obviously inaccurate, ” Department of Labor is required to certify the LCA within seven days of receipt. Id. After submitting the certified LCA, Immigration Services determines “whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the labor condition application is a specialty occupation, . . . and whether the qualifications of the nonimmigrant meet the statutory requirements for H-1B visa classification.” 20 C.F.R. § 655.705(b).

         Utah Life filed a Form I-129 Petition for a Nonimmigrant Worker with Immigration Services seeking to classify Ms. Sheldon as a nonimmigrant special occupation worker. [Docket 2, pp 8-9]. Utah Life sought to employ Ms. Sheldon as a marketing analyst, which Utah Life asserts is a “specialty occupation” as defined by 8 C.F.R. § 214.2(h)(4)(ii).

         After receiving Utah Life's application and supporting materials, Immigration Services issued a Request for Additional Evidence (RFE). The RFE requested evidence demonstrating that Ms. Sheldon had the necessary educational qualifications and that the offered position was a “specialty occupation.” [Docket 2-3]. Utah Life submitted additional materials in response to the RFE. [Docket 2-4]. Two weeks later, on July 29, 2016, Immigration Services denied Utah Life's petition, finding that a marketing analyst did not qualify as a specialty occupation. [Docket 2-5].

         Shortly thereafter, Utah Life brought suit seeking judicial review of the denial, alleging that it was arbitrary and capricious and not in accordance with the law. [Docket 2]. After the lawsuit was filed, Immigration Services reopened Utah Life's H1-B petition for Ms. Sheldon and issued a new RFE. Immigration Services offered a stipulated stay of this litigation so that the reopened proceedings before it could proceed and a new final determination could be reached, but Utah Life refused. Immigration Services then brought the present motion to dismiss for lack of subject matter jurisdiction. After this motion was fully briefed, Immigration Services issued a new determination denying Utah Life's petition, in part because Utah Life did not respond to the second RFE.


         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Ins. Co. of Am., 511 U.S. 375, 377 (1994). As a result, it is presumed that a claim falls outside the jurisdiction of the court “and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id.

         Under the Administrative Procedure Act (APA), district courts have the authority to review agency action only when one of two conditions is met. The agency action must either be “made reviewable by statute;” or “a final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. An agency action is determined to be final when two conditions are met: (1) “the action must mark the ‘consummation' of the agency's decision making process” and (2) “the action must be one by which ‘rights or obligations have been determined, '” or from which “legal consequences flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). Dismissal for lack of subject matter jurisdiction is proper when the challenged agency action is not final. See Davis ex rel. Davis v. United States, 343 F.3d 1282, 1295-96 (10th Cir. 2003).

         There is no dispute that the July 29, 2016 denial of Utah Life's H-1B visa application was a final agency action under the APA and that this court had subject matter jurisdiction when the lawsuit was filed. The question before the court is whether Immigration Services' subsequent decision to reopen the application and request additional information transformed the July 29, 2016 denial into a nonfinal agency action under the APA, depriving this court of subject matter jurisdiction over the case.

         Two district courts in the Ninth Circuit have addressed this precise question. In both Net-Inspect, LLC v. United States Citizenship & Immigration Services, No. C14-1514JLR, 2015 WL 880956, at *1 (W.D. Wash. Mar. 2, 2015) and True Capital Management, LLC v. United States Department of Homeland Security, No. 13-261 JSC, 2013 WL 3157904, at *1 (N.D.Cal. June 20, 2013), Immigration Services denied an H-1B visa application, the applicant filed an action in the district court seeking review of the denial, and Immigration Services then sua sponte reopened the application to seek additional information. These courts concluded that Immigration Services' decision to reopen the application rendered the initial denial nonfinal and deprived the court of jurisdiction to review the denial. Net-Inspect, 2015 WL 880956, at *4-*5; True Capital, 2013 WL 3157904, at *3. Net-Inspect noted the regulations governing an H-1B visa application do not prohibit Immigration Services from reopening an application after a legal proceeding for review has commenced. Net-Inspect, 2015 WL 880956, at *5; see 8 C.F.R. § 103.5(a)(5) (permitting Immigration Services to reopen a decision on its own motion). That court further reasoned that once an administrative agency decides to reopen a decision and conduct further proceedings, the previous denial is no longer “the agency's ‘last word on the matter, '” and therefore not final or reviewable under the APA. Net-Inspect, 2015 WL 880956, at *4 (citation omitted); see also Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 478 (2001) (“Only if the ‘EPA has rendered its last word on the matter' in question, is its action ‘final' and thus reviewable.” (citation omitted)).

         A Seventh Circuit opinion authored by Judge Easterbrook supports this outcome. In Gao v. Gonzales, 464 F.3d 728, 729 (7th Cir. 2006), the Board of Immigration Appeals (BIA) dismissed an appeal, and the petitioner sought review of the dismissal in the circuit court of appeals. While the appeal was pending, the BIA reopened the proceedings before it on its own motion. Id. The government then filed a motion to dismiss the appeal pending in the Seventh Circuit for want of jurisdiction because there was no longer a final order of removal to be reviewed. Id.; see 8 U.S.C. § 1252(a)(1) (permitting “[j]udicial review of a final order of removal.”). Gao concluded that the resolution of this jurisdictional challenge turned on whether the BIA had the authority to reopen the proceedings after the petition for review had been filed in the circuit court of appeals. The court noted that “[n]ormally a petition for judicial review, like an appeal from a judgment of a district court, transfers authority over the case.” Id. “The approach that governs appeals within the judicial system does not, however, apply” to a petition for review from an agency decision. Id. Because the BIA “did not need judicial permission to reopen a proceeding, ” the circuit court of appeals lost jurisdiction over the case when the BIA sua sponte revived the proceedings before it. Id. at 730.

         A subsequent Seventh Circuit opinion held that a district court retained jurisdiction when the Department of Health and Human Services reopened administrative proceedings after judicial review of an administrative decision had begun. Doctors Nursing & Rehab. Ctr. v. Sebelius, 613 F.3d 672, 680 (7th Cir. 2010). But this opinion was based on a federal statute that regulates lawsuits seeking review of administrative decisions made by the Commissioner of Social Security. Id. This statute provides that a court reviewing a decision of the Commissioner “may, on motion of the Commissioner of Social Security made for good cause shown . . . remand the case to the Commissioner of Social Security for further action.” 42 U.S.C. § 405(g). Thus, Congress has provided a specific procedure the Commissioner must follow in order to reopen a proceeding after a lawsuit seeking review has been filed in the district ...

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