                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

USHA SAGARWALA,                                  :
                                                 :
       Plaintiff,                                :       Civil Action No.:     18-2860 (RC)
                                                 :
       v.                                        :       Re Document No.:      30
                                                 :
KENNETH T. CUCCINELLI, Senior Official           :
    Performing the Duties of the Director,       :
    United States Citizen and Immigration        :
    Services, 1                                  :
                                                 :
       Defendant.                                :

                                 MEMORANDUM OPINION

               DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGMENT

       This case involves a challenge to a decision by United States Citizenship and

Immigration Services (“USCIS”) denying an H-1B petition that was filed on behalf of Plaintiff,

Ms. Usha Sagarwala. In a memorandum opinion resolving the parties’ cross-motions for

summary judgment, the Court rejected Plaintiff’s challenge and concluded that USCIS’s denial

was adequately justified. Ms. Sagarwala now seeks to alter the Court’s judgment, arguing that it

rested on a misapplication of the law. Additionally, Ms. Sagarwala asks the Court to invoke its

equitable powers to stay the accrual of unlawful presence for the period between the filing of the

action and the entry of the order. For the reasons explained below, the Court denies the motion

in both respects.




       1
        Mr. Kenneth T. Cuccinelli is automatically substituted for Former Director L. Francis
Cissna. See Fed. R. Civ. P. 25(d).
                                         I. BACKGROUND

        A thorough explanation of the H-1B program, and Ms. Sagarwala’s efforts to secure a

visa through it, are included in the Court’s memorandum opinion granting summary judgment

for USCIS. See Sagarwala v. Cissna, 387 F. Supp. 3d 56, 59–62 (D.D.C. 2019). A brief

summary is provided here for orientation.

                                        A. Legal Framework

        Under the H-1B program, non-citizens can temporarily work in the United States if they

are sponsored by an employer in a “specialty occupation.” Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1101(a)(15)(H)(i)(b). For the purposes of the H-1B program, the INA

defines a “specialty occupation” as one that requires “(A) theoretical and practical application of

a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in

the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United

States.” 8 U.S.C. § 1184(i)(1). In line with that statutory definition, the applicable regulations

define a specialty occupation as one that “requires the attainment of a bachelor’s degree or

higher in a specific specialty” or its equivalent, plus “theoretical and practical application of a

body of highly specialized knowledge in fields of human endeavor including, but not limited to,

architecture, engineering, mathematics, physical sciences, social sciences, medicine and health,

education, business specialties, accounting, law, theology, and the arts.” 8 C.F.R. §

214.2(h)(4)(ii) (“Definitions”). The next subparagraph in the regulations provides more specific

criteria (or prerequisites) as to what qualifies:

        To qualify as a specialty occupation, the position must meet one of the following
        criteria:
        (1) A baccalaureate or higher degree or its equivalent is normally the minimum
            requirement for entry into the particular position;
        (2) The degree requirement is common to the industry in parallel positions among
            similar organizations or, in the alternative, an employer may show that its


                                                    2
           particular position is so complex or unique that it can be performed only by an
           individual with a degree;
       (3) The employer normally requires a degree or its equivalent for the position; or
       (4) The nature of the specific duties are so specialized and complex that knowledge
           required to perform the duties is usually associated with the attainment of a
           baccalaureate or higher degree.

Id. § 214.2(h)(4)(iii)(A) (“Criteria for H-1B petitions involving a specialty occupation”); see also

Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000) (“assum[ing] arguendo that §

214.2(h)(4)(iii)(A) creates [a] necessary and sufficient condition[] for the category of ‘specialty

occupation’” but acknowledging that the provision could also “be read as merely an additional

requirement that a position must meet, in addition to the statutory . . . definition”).

                                          B. Case History

       Ms. Sagarwala sought authorization to work as a “QA Analyst”—that is, “a software

quality assurance engineer or tester”—for a company called HSK Technologies. Sagarwala, 387

F. Supp. 3d at 60. However, as this Court’s opinion explained, USCIS rejected the petition, and

did so “on a single ground”: “that HSK Technologies’ QA Analyst position did not qualify as a

‘specialty occupation’ eligible under the program.” Id. at 63. The Court noted that USCIS’s

analysis “proceeded in two parts.” Id. First, “because the minimum qualifications appeared to

be from ‘a wide variety of disparate fields of study,’” id. (quoting AR 2 at 4), the agency

concluded “that the position did not require the ‘theoretical and practical application of a body of

highly specialized knowledge’ or the ‘attainment of a bachelor’s or higher degree in [a] specific

specialty,’” id. (quoting 8 U.S.C. § 1184(h)(i)(1)(A)–(B)). Second, “USCIS further explained




       2
          “AR” refers to the version of the administrative record filed by Plaintiff, ECF No. 13-2.
USCIS has separately certified an index of the record of the petition, see ECF No. 18, but a full
version of the certified record does not appear on the electronic docket. However, both parties
refer to the version filed by the Plaintiff, and the Court follows suit.


                                                  3
that the company had failed to demonstrate how any of the four prerequisites from 8 C.F.R. §

214.2(h)(4)(iii)(A) were satisfied.” Id. at 61.

       In upholding USCIS’s decision, the Court declined to endorse the first part of the

agency’s analysis, in part because it relied on evidence that HSK had initially submitted and then

attempted to withdraw. Id. at 64. Instead, the Court reasoned that the second part of the

agency’s analysis—that is, its conclusion that none of the four § 214.2(h)(4)(iii)(A) prerequisites

were satisfied by the submitted evidence—provided independent grounds for USCIS’s decision.

See id. “And because the Court [found] no error in USCIS's analysis as to those four

prerequisites, the Court end[ed] its discussion there too.” Id. at 64–65.

       Twenty-eight days after the Court entered judgment for USCIS, Ms. Sagarwala filed the

presently-pending motion. See Mot. to Alter J. and for Relief Pursuant to FRCP 59 and 60

(“Pl.’s Mot.”), ECF No. 30; see also Pl.’s Mem. in Supp. of Mot. to Alter J. (“Pl.’s Mem.”), ECF

No. 30-1. In the motion, Ms. Sagarwala primarily argues that the Court was excessively

deferential to USCIS and misapplied then-existent case law. See Pl.’s Mot. at 1–2. Separately,

she requests that the Court alter the judgment to prohibit the accrual of unlawful presence for the

periods between the filing of the action and the entry of the order, “or at a minimum, exclude[e]

time attributed to delays beyond the Plaintiff’s control.” Id. at 1. USCIS opposes in both

respects, see Def.’s Mem. in Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 32, and the motion

is now ripe for the Court’s consideration.

                                    II. LEGAL STANDARD

                            A. Federal Rule of Civil Procedure 59(e)

       “A motion to alter or amend a judgment must be filed no later than 28 days after the entry

of the judgment.” Fed. R. Civ. P. 59(e). Such a motion “is discretionary and need not be granted




                                                  4
unless the district court finds that there is an intervening change of controlling law, the

availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”

Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76

F.3d 1205, 1208 (D.C. Cir. 1996)).

       Absent a demonstrated intervening change of controlling law or new evidence, litigants

cannot invoke Rule 59(e) “either to repeat unsuccessful arguments or to assert new but

previously available arguments.” Slate v. Am. Broad. Companies, Inc., 12 F. Supp. 3d 30, 34

(D.D.C. 2013). And “clear error” within the meaning of Rule 59(e) is “a very exacting

standard,” Bond v. U.S. Dep’t of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012) (quoting Lightfoot v.

District of Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005)), such that the “final judgment

must be ‘dead wrong.’” Lardner v. FBI, 875 F. Supp. 2d 49, 53 (D.D.C. 2012) (quoting Parts &

Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)). Similarly,

“manifest injustice” means “more than just a clear and certain prejudice to the moving party, but

also a result that is fundamentally unfair in light of governing law.” Slate, 12 F. Supp. 3d at 35–

36.

                          B. Federal Rule of Civil Procedure 60(b)(6)

       Rule 60(b) provides a separate “mechanism for relief from a judgment or order by

permitting the court to relieve a party or its legal representative from a final judgment, order, or

proceeding[.]” Oladokun v. Corr. Treatment Facility, 309 F.R.D. 94, 97 (D.D.C. 2015). Unlike

a motion under Rule 59(e), it must only be made “within a reasonable time.” Fed. R. Civ. P.

60(c)(1). The burden falls to the party seeking relief to “[show] that he or she is entitled to

relief.” Oladokun, 309 F.R.D. at 97. The final decision to grant or deny a Rule 60(b) motion is

“committed to the discretion of the District Court,” United Mine Workers 1974 Pension v.




                                                  5
Pittston Co., 984 F.2d 469, 476 (D.C. Cir. 1993), which “balance[s] the interest in justice with

the interest in protecting the finality of judgments,” Summers v. Howard Univ., 374 F.3d 1188,

1193 (D.C. Cir. 2004).

        Here, Ms. Sagarwala’s motion does not invoke any particular provision of Rule 60(b)

(such as those involving fraud, mistake, or newly discovered evidence, see Fed. R. Civ. P.

60(b)(1)–(5)), so the Court construes it as a motion under the Rule’s catch-all provision, see Fed.

R. Civ. P. 60(b)(6) (authorizing relief for “any other reason that justifies relief”). Rule 60(b)(6)

motions “should only be granted in ‘extraordinary circumstances.’” Riley v. BMO Harris Bank,

N.A., 115 F. Supp. 3d 87, 94 (D.D.C. 2015) (quoting Ackermann v. United States., 340 U.S. 193,

199 (1950)); see also Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007) (“[P]laintiffs must

clear a very high bar to obtain relief under Rule 60(b)(6).”).

                           C. The Standard Governing This Motion

        “A motion to reconsider a final order is generally treated as a Rule 59(e) motion if it is

filed within the filing time limit set forth in that rule—as [Ms. Sagarwala’s] was—and as a Rule

60(b) motion if it is filed thereafter.” Roane v. Gonzales, 832 F. Supp. 2d 61, 64 (D.D.C. 2011).

This is logical and fair, given “Rule 60(b) is slightly more restrictive than Rule 59(e).” SEC v.

Bilzerian, 729 F. Supp. 2d 9, 17 (D.D.C. 2010). Accordingly, the Court will primarily analyze

Plaintiff’s arguments through the lens of Rule 59(e), although any difference between the Rule

59(e) and Rule 60(b) standard is unlikely to matter in the end. See Stephenson v. Chao, No. 19-

cv-2256, 2020 WL 122984, at *2 (D.D.C. Jan. 10, 2020) (“Under [both rules], a movant must

clear a high bar and a district court has considerable discretion in deciding whether to grant

relief.”).




                                                  6
                                          III. ANALYSIS

                                  A. Motion to Alter Judgment

                                         1. Auer Deference

       As the Court reads the motion, Ms. Sagarwala’s main argument is that the Court

improperly deferred to USCIS under Auer v. Robbins, 519 U.S. 452 (1997) and subsequent cases

that clarify when so-called Auer deference is appropriate. See Pl.’s Mem. at 5 (“The Court

should alter its judgment because it granted Auer deference without considering the required

analysis under Kisor, and contradict [sic] the D.C. Circuit decision in Fogo de Chao v. USCIS.”).

Although Ms. Sagarwala raises a variety of arguments under this general banner, the Court’s

opinion actually only invoked Auer in a narrow context—specifically, with respect to USCIS’s

reading of the first of the four § 214.2(h)(4)(iii)(A) prerequisites. 3 See Sagarwala, 387 F. Supp.

3d at 66. To recall, that criterion provides that a position qualifies as a specialty occupation if

“[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for

entry into the particular position.” 28 C.F.R. § 214.2(h)(4)(iii)(A)(1). Focusing on this

language, Ms. Sagarwala had argued in her motion for summary judgment that the USCIS erred

when it required, as a minimum qualification, not just any baccalaureate or higher degree, but



       3
         Thus, for example, the Court is not able to follow Plaintiff’s suggestion that the Court
inappropriately “granted the agency Auer deference and determined that its interpretation of 8
C.F.R. § 214.2(h)(4)(ii) was reasonable.” Pl.’s Mem. at 6 (emphasis added). Likewise, Plaintiff
suggests that USCIS “lacks the ‘substantive expertise’ needed under Kisor to make its own
determination on the degree requirement.” Id. at 14. Even assuming USCIS lacks that expertise,
the Court did not invoke Auer (and thus trigger Kisor’s additional requirements) as to the
USCIS’s degree requirement determination as a whole. Rather, as the memorandum opinion
explained, the Court applied the normal level of deference accorded to an agency under the
Administrative Procedure Act to USCIS’s evaluation of each of the four regulatory prerequisites.
See Sagarwala, 387 F. Supp. 3d at 63 (noting that review under the APA’s arbitrary and
capricious standard is “highly deferential”) (quoting AT&T, Inc. v. FCC, 886 F.3d 1236, 1245
(D.C. Cir. 2018)).


                                                  7
one in a specific specialty that was directly related to the offered position. Sagarwala, 387 F.

Supp. 3d. at 66. The Court rejected this argument. It noted Plaintiff’s objection that the criterion

“refers solely to a degree, not one in a particular subject matter.” Id. But the Court agreed with

USCIS that “§ 214.2(h)(4)(iii)(A)(1) must be read in context, not in a vacuum” and observed that

“both the statutory and regulatory definitions of ‘specialty occupation’ state that the position at

issue must require the ‘attainment of a bachelor’s or higher degree in [a] specific specialty.’” Id.

(quoting 8 U.S.C. § 1184(i)(1)(B) and citing 8 C.F.R. § 214.2(h)(4)(ii)). Thus, as the Court

explained:

   Accepting Sagarwala’s proposed interpretation—under which any job requiring a
   bachelor’s degree would be eligible—risks expanding H-1B availability beyond those
   prescribed limitations. Indeed, one could argue that the statutory and regulatory
   framework compels USCIS’s reading. But at a minimum, the agency has adopted a
   reasonable reading of a regulatory provision that is susceptible to more than one
   interpretation. Such a reading is typically entitled to judicial deference, unless it is
   “plainly erroneous or inconsistent with the regulation.” USCIS’s interpretation here is
   neither. It instead reflects the agency’s “fair and considered judgment” on an issue
   falling within the agency’s substantive expertise and is therefore “entitle[d] to
   controlling weight.”

Id. (first quoting Auer, 519 U.S. at 461, then quoting Kisor v. Wilkie, 139 S.Ct. 2400, 2417

(2019)).

       Ms. Sagarwala suggests here that this invocation of Auer deference was inappropriate,

first because § 214.2(h)(4)(iii)(A)(1) was not “genuinely ambiguous,” Pl.’s Mem. at 7 (quoting

Kisor, 139 S.Ct. at 2417), and second because USCIS’s interpretation was not “official and

authoritative,” id. However, neither critique hits the mark. The Court found, and still finds, that

provision was ambiguous—that is, “susceptible to more than one interpretation”—not because

any of its words were unclear, but because of its obvious ill-fit with other regulatory and

statutory language. Sagarwala, 387 F. Supp. 3d. at 66. This approach is fully consistent with

Kisor, which explicitly requires courts to “‘carefully consider[]’ the text, structure, history, and



                                                  8
purpose of a regulation, in all the ways it would if it had no agency to fall back on,” before

concluding that a regulation is genuinely ambiguous. Kisor, 139 S. Ct. at 2415 (quoting Pauley

v. BethEnergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting)). Similarly, Kisor

indeed cautioned that a court should only defer to an agency’s “‘authoritative’ or ‘official

position,’ rather than any more ad hoc statement not reflecting the agency’s view.” Id. at 2416

(quoting United States v. Mead Corp., 533 U.S. 218, 257–59, n.6 (2001) (Scalia, J., dissenting)).

But USCIS’s statement here, although articulated in an ordinary visa adjudication, does not

appear to be ad hoc or unreflective of the agency’s actual views; to the contrary, the decision

purports to relate and apply the considered views of the agency. See AR at 3 (“To be consistent

with section 214(i)( l) of the Act, [USCIS] interprets the term ‘degree’ set forth in the criteria at

8 CFR, section 214.2(h)( 4)(iii)(A) to mean not just any baccalaureate or higher degree, but one

in a specific specialty that is directly related to the offered position.”). Ms. Sagarwala offers no

specific grounds for concluding that this approach to the regulatory language was ad hoc,

unrepresentative, or unofficial (e.g., by offering evidence it diverged from the agency’s

previously-held views or was developed for mere convenience). Cf. Shieldalloy Metallurgical

Corp. v. Nuclear Regulatory Comm’n, 768 F.3d 1205, 1209 (D.C. Cir. 2014) (noting that

“[d]eference is appropriate even if the agency’s interpretation first appears during litigation,

unless the interpretation conflicts with prior interpretations or amounts to nothing more than a

convenient litigating position”) (internal citations and quotations omitted)). 4



       4
         The Court also notes that, even in the absence of Auer deference, USCIS’s reading of §
214.2(h)(4)(iii)(A)(1) would likely prevail. See Sagarwala, 387 F. Supp. 3d. at 66 (“[O]ne could
argue that the statutory and regulatory framework compels USCIS’s reading.”); see also Raj &
Co. v. USCIS, 85 F. Supp. 3d 1241, 1246 (W.D. Wash. 2015) (noting that “requiring [only] a
generalized bachelor degree would run contrary to congressional intent to provide a visa program
for specialized, as opposed to merely educated, workers”).


                                                  9
                  2. Statutory Authority to Engage in Adjudicative Rulemaking

       Separately, Ms. Sagarwala challenges the Court’s decision insofar as it stated that USCIS

has “authority to proceed by adjudication as opposed to rulemaking.” Pl.’s Mem. at 18–19

(quoting Sagarwala, 387 F. Supp. 3d at 69). Ms. Sagarwala’s argues that, in fact, “USCIS does

not have discretion to change its rules, standards, and policies through adjudication” and

therefore “cannot demand more than the descriptions, attestations, explanations, etc. that it

instructs petitioners to provide.” Id. at 21. For support, Ms. Sagarwala cites Fogo De Chao

(Holdings) Inc. v. U.S. Dep't of Homeland Sec., a case in which our Circuit declined to grant

Chevron deference to a regulatory interpretation of a statutory term by USCIS’s Administrative

Appeals Office (“AAO”). 769 F.3d 1127, 1136–37 (D.C. Cir. 2014). Specifically, the Circuit

found that the AAO’s decision was not “marked by the qualities that might justify Chevron

deference in the absence of a formal adjudication or notice-and-comment rulemaking.” Id. at

1137. Similarly, Plaintiff suggests, the “USCIS service center decision at issue in this case,

which is subordinate to the AAO, surely lacks” those same qualities. Pl.’s Mem. at 20.

       Again, however, the Court cannot accept the Plaintiff’s characterization of its opinion, or

see the suggested relevancy of Fogo De Chao. The Court made the challenged observation when

discussing one prong of the second regulatory prerequisite: that is, evaluating whether Ms.

Sagarwala had provided sufficient evidence to demonstrate that the position was “so complex or

unique that it can be performed only by an individual with a degree.” 8 C.F.R. §

214.2(h)(4)(iii)(A)(2). The Court noted:

       Sagarwala also appears to contend that the agency has not provided “intelligible
       standards” that define what it means for a position to be “unique” or “complex”
       within the meaning of the regulation. USCIS is under no obligation, however, to
       make broad legal pronouncements when issuing its adjudicatory decisions. See
       United Food & Comm. Workers Int’l Union, AFL-CIO, Local No. 150-A v. NLRB,
       1 F.3d 24, 34 (D.C. Cir. 1993) (“[A]n agency’s authority to proceed by



                                                10
       adjudication, as opposed to rulemaking, implies a power to fill interstices in the law
       by proceeding case by case.”). And nothing about the agency’s decision is
       inconsistent with the plain meanings of “complex” or “unique.” Based on the
       limited evidence HSK Technologies provided, it was not arbitrary, capricious, or
       an abuse of discretion for USCIS to conclude that the company simply had not met
       its burden.

Sagarwala, 387 F. Supp. 3d at 69 (additional citations omitted). The Court was simply making

the point that USCIS was permitted to apply the regulatory terms “complex” and “unique” in a

particular adjudication, and that its application of those terms here was not arbitrary or

capricious. In other words, the agency was not—in light of the plain meanings of the words

“complex” and “unique”—required to further define those terms through additional rulemakings

or guidance. Nothing in the cited portions of Fogo De Chao, which concern the types of agency

statements that can qualify for the application of Chevron deference, suggests otherwise.

                       B. Request to Stay Accrual of Unlawful Presence

       When a nonimmigrant remains in the United States beyond the time authorized by an H-

1B visa, so-called “unlawful presen[ce]” begins to accrue. 8 U.S.C. § 1182(a)(9)(B)(i)(I). If an

individual remains unlawfully present between 180 days and one year, he or she is deemed

inadmissible to the United States for a period of three years. Id.; see also Stellar IT Sols., Inc.

v.USCIS, No. 18-cv-2015, 2018 WL 6047413, at *11 (D.D.C. Nov. 19, 2018). However, if the

sponsoring employer files an H-1B extension petition and that petition remains pending, a

nonimmigrant is allowed to work and unlawful presence does not accrue. See 8 C.F.R. §

214.2(h)(2)(i)(H)(2) (providing that aliens previously approved for H-1B status are “authorized

to start . . . new employment” if a “nonfrivolous” petition to extend that H-1B status based on the

new employment has been filed on behalf of the alien and remains pending).

       Here, the agency issued a final decision on the petition on November 1, 2018. In doing

so, USCIS warned of the potential consequences of remaining in the United States. See AR at 10



                                                  11
(“This decision may leave the beneficiary without lawful immigration status. If the beneficiary

is present in the United States in violation of the law, he or she is required to depart

immediately.”). However, at least as Ms. Sagarwala calculated, she still “had until April 30,

2019 before she accrued immigration penalties under 8 U.S.C. § 1182(a)(8)(B)(i).” Pl.’s Mem.

at 3. With that date now having passed, Ms. Sagarwala represents that she and her family “are

now subject to a three-year bar to readmission to the United States.” Id. at 4. And this is so,

even though Ms. Sagarwala pursued her right to judicial review “in a timely manner”—that is,

by filing this case on December 6, 2018, roughly one month after the petition was denied. Id.

Ms. Sagarwala therefore asks the Court to use its “equitable authority” to stay the date of accrual

of unlawful presence beyond that April 30, 2019 date. Id. at 3.

       The Court is sympathetic to Ms. Sagarwala’s situation. As this case demonstrates, it may

not always be possible to secure a final judicial ruling within 180 days. Thus, an individual

whose petition has been denied and who intends to seek judicial review may face a difficult

choice: either (1) remain in the United States and hope to prevail in federal court, knowing that

delays may lead to a three year ban from the United States; or (2) uproot one’s life and leave the

United States before receiving the judicial review to which one is entitled.

       Despite these considerations, the Court does not perceive a strong legal or equitable basis

for granting the requested relief in these circumstances. First, such a request is procedurally

inappropriate. “Rule 59(e) motions are aimed at reconsideration, not initial consideration,” and

arguments raised for the first time on a Rule 59(e) motion may be deemed “waived.” GSS Grp.

Ltd. v. Nat’l Port Auth., 680 F.3d 805, 812 (D.C. Cir. 2012). Ms. Sagarwala’s motion for

summary judgment (as well as the supporting memorandum) did not seek or discuss a stay of

accrual of unlawful status. See Pl.’s Mot. Summ. J. at 1, ECF No. 13 (moving only for orders




                                                  12
“declaring Defendant’s final agency action in this case to be unlawful” and “directing the

Defendant to approve the petition”); see also Pl.’s Mem. Supp. Mot. Summ. J., ECF No. 13-1.

Accordingly, the Court’s order and opinion granting summary judgment did not consider the

issue in the first instance; as such, there is nothing to reconsider. Second, Ms. Sagarwala’s

memorandum in support of her motion here does not cite any case in support of her argument for

a retroactive stay, and the Court is not aware of any case that has lifted penalties that have

already accrued under 8 U.S.C. § 1182(a)(9)(B)(i). Courts have, as Ms. Sagarwala points out in

her reply, considered the accrual of unlawful presence when weighing the likelihood of

irreparable harm in the context of a motion for a preliminary injunction, and crafted remedies

accordingly. See Pl.’s Reply at 1, ECF No. 35. Thus, for example, this Court entered a

preliminary injunction staying the effectiveness of a USCIS decision denying a petition, with the

result that, “for legal purposes, [petitioner] was never without lawful immigration status, and the

180-day clock for 8 U.S.C. § 1182(a)(9)(B)(i)(I) never began to run.” Stellar IT Sols., 2018 WL

6047413, at *12. Of course, the Court did so only after concluding that the plaintiff had satisfied

the standard for a preliminary injunction, including demonstrating a likelihood of success on the

merits. Id. at *11. Similarly, another court “halt[ed] the accrual of unlawful presence time

and/or unauthorized employment for all class members during the pendency of this litigation”

after finding that plaintiffs had “a fair chance of success on the merits” and that a stay would

“continue the status quo ante litem.” Ruiz-Diaz v. United States, No. C07-1881, 2008 WL

3928016, at *2 (W.D. Wash. Aug. 21, 2008). This kind of relief is explicitly contemplated by

the APA, which allows a reviewing court “to postpone the effective date of an agency action or

preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705.

However, different considerations are at play here, when the case has been fully litigated on the




                                                 13
merits and Ms. Sagarwala’s unlawful status has, as she represents, already accrued beyond 180

days.

        In this case, Ms. Sagarwala had the opportunity to seek a preliminary injunction, and did

in fact do so. See Mot. for Prelim. Inj., ECF. No. 3. However, as the Court noted in resolving

that motion against her, her claimed injuries related only to economic harm and did not mention

that she could be prohibited from residing in the United States. See Sagarwala v. Cissna, No.

18-cv-2860, 2019 WL 1649943, at *3 (D.D.C. Apr. 16, 2019). Separately, however, “four

months after filing her motion for preliminary injunction, Sagarwala filed a notice with the Court

indicating for the first time that, as a result of the H-1B denial, she will be legally prohibited

from residing in the United States beginning on April 30, 2019.” Id. at *3 n.2 (citing Notice of

Imminent Accrual of Unlawful Presence, ECF No. 19). Observing that the notice “lacked detail

or legal support” and that “the USCIS Director has not yet had an opportunity to respond to it,”

the Court declined to consider it in resolving the then-pending motion for a preliminary

injunction. Id. However, the Court invited Ms. Sagarwala to “renew her motion for preliminary

injunction based on this new claimed harm,” id., which Ms. Sagarwala did shortly thereafter, see

Second Mot. for Prelim. Inj., ECF No. 22. The second motion was ultimately denied as moot, as

the Court was able to decide the case on the merits before resolving it. See Minute Order (July

15, 2019). Plaintiff’s request here effectively attempts to relitigate that decision, and the Court

sees no basis for doing so.




                                                  14
                                      IV. CONCLUSION

       For the foregoing reasons, Plaintiff’s motion to alter or amend judgment is DENIED. 5

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.


Dated: April 30, 2020                                              RUDOLPH CONTRERAS
                                                                   United States District Judge




       5
          Along with her reply in support of this motion, Ms. Sagarwala included a “Notice of
Supplemental Authority,” which the Court has reviewed. See Pl.’s Reply at 2–6. The notice
concerns certain USCIS training materials that allegedly provide incorrect guidance on applying
§ 214.2(h)(iii)(4)(A)(1) and interpreting related language in the Department of Labor’s
Occupational Outlook Handbook. Id. at 5. However, the allegedly improper guidance (which
explains how adjudicators should evaluate whether a specialized degree is “normally” required
for a particular kind of position) is unrelated to USCIS’s grounds for decision in this case. Here,
USCIS found that the petition did not provide sufficient evidence that a specialized degree (as
opposed to a general degree) was required for the position at all, and the Court did not find this
conclusion arbitrary or capricious. See Sagarwala, 387 F. Supp. 3d at 65.


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