                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
__________________________________
                                      )
ITSERVE ALLIANCE, INC., et al.,       )
                                      )
              Plaintiffs,             )
                                      )
      v.                              )
                                      )    Civil Action No. 18-2350 (RMC)
L. FRANCIS CISSNA, Director,          )
United States Citizenship and         )
Immigration Services,                 )
                                      )
              Defendant.              )
_________________________________     )

                                           OPINION

              By tradition and law, the United States has welcomed foreign workers with

specialized training to work temporarily in this country as needed by U.S. employers. The

workers in specialty occupations do not come as immigrants; they are given visas for three years

to work here. Because non-immigrant H-1B visas are intentionally for a short term, the

Immigration and Naturalization Service (INS), in accord with the law, simplified and streamlined

the application and approval process in a way inapplicable to immigrants. These H-1B visas

have allowed the growth of a business model whereby U.S. employers obtain H-1B visas for

foreign workers who are trained in information technology (IT) and provide such persons as

temporary workers to other U.S. companies that need IT assistance for a period.

              In 2003, Congress established the Citizenship and Immigration Service (CIS) and

transferred visa authority to it.1 CIS has recently withdrawn INS guidance memos and adopted


1
 Under the Homeland Security Act of 2002, the Immigration and Naturalization Service (INS)
was abolished. See Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (2002). Decisions on
nonimmigrant petitions, including H-1B petitions, were transferred from the Commissioner of
INS (and the Attorney General) to the Secretary of the Department of Homeland Security and



                                               1
its own guidance, which has caused the H-1B approval process to slow dramatically and resulted

in a high level of rejected visa petitions from employers in the IT industry but not others.

               Approximately thirty-three cases have been filed in this District challenging the

handling of H-1B visa applications by CIS, a constituent agency of the Department of Homeland

Security (DHS). Although not “related” within the meaning of Local Civil Rule 40.5(a)(3), the

cases have been consolidated before this Court with the agreement of the assigned Judges for

briefing on three legal issues under Local Civil Rule 40.5(e):

   1. the authority of CIS to grant visas for less than the requested three-year period;

   2. the authority of CIS to deny visas to companies that place employees at third-party
      locations either because the third party is determined to be the employer or because
      specific and detailed job duties are not provided with the visa application; and

   3. the related statute of limitations issues raised by the government.

See 3/6/2019 Minute Order Referring Case for Limited Purpose (Consolidation Order), ERP

Analysts v. Cissna, No. 19-cv-300. Question 2 concerns the employer-employee relationship, the

availability of work for a temporary foreign worker, and the foreign worker’s maintenance of

status. Plaintiffs allege that CIS is applying new versions of these requirements, without

engaging in rulemaking, to H-1B applicants that are IT consulting firms and not to other U.S.

employers.



subdelegated to the Director of CIS. See 8 U.S.C. § 1103(a)(1) (“The Secretary of Homeland
Security shall be charged with the administration and enforcement of this chapter and all other
laws relating to the immigration and naturalization of aliens.”); 8 U.S.C. § 1184(c)(1) (“The
question of importing any alien as a nonimmigrant under subparagraph (H) . . . of section
1101(a)(15) of this title . . . in any specific case or specific cases shall be determined by the
Attorney General, after consultation with appropriate agencies of the Government, upon petition
of the importing employer.”); 8 C.F.R. § 2.1 (permitting the Secretary of DHS to delegate
authority “to administer and enforce the immigration laws”); DHS’s Delegation to the Bureau of
Citizenship and Immigration Services, Delegation No. 0150.1 § 2(W) (June 5, 2003),
https://www.hsdl.org/?abstract&did=234775 (delegating “[a]uthority under the immigration laws
. . . to accept and adjudicate nonimmigrant and immigrant visa petitions”).


                                                 2
               The Court finds, as discussed below, that:

    1. The 1991 Regulation was adopted by INS through notice-and-comment rulemaking and
       the statute of limitations ran out long before this case was filed. It is subject only to an
       as-applied challenge.

    2. CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to
       as the Neufeld Memo, from which comes a new employer-employee relationship set of
       requirements. It is timely challenged on an as-applied basis but not as a facial challenge.

    3. CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can
       be challenged either facially or as applied.

    4. The current CIS interpretation of the employer-employee relationship requirement is
       inconsistent with its regulation, was announced and applied without rulemaking, and
       cannot be enforced.

    5. The CIS requirements that employers (1) provide proof of non-speculative work
       assignments (2) for the duration of the visa period is not supported by the statute or
       regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These
       requirements were also announced and applied without rulemaking and cannot be
       enforced.

    6. CIS’s itinerary requirement was superseded by a later statute that permits employers to
       place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.

    7. CIS has the authority to grant visas for less than the requested three-year period but must
       provide its reasoning behind any denials, in whole or in part.

               Both Plaintiffs’ and Defendant’s motions for summary judgment will be granted

in part and denied in part.2

                                     I.      BACKGROUND

               The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., specifically

allows U.S. employers to apply for visas for foreign workers to come to the United States to


2
  The subset of cases that are assigned to Judge Rosemary M. Collyer will be remanded to CIS
for reconsideration consistent with this Opinion and the Court will order that such
reconsideration shall be completed in no more than 60 days. This Opinion and accompanying
Order will be filed on the dockets of all the cases assigned to other judges and consolidated for a
limited purpose. The parties in those cases will be ordered to file a joint status report regarding
the effect of this decision on their specific case no later than two weeks after the issuance of this
Opinion.


                                                  3
work permanently (immigrants) or to come to the United States for temporary employment

(nonimmigrants). The differences are material in that the former are applying to remain in the

United States and the latter are planning to work here on a temporary basis. This distinction has

existed since November 1990, when Congress adopted the Immigration Act of 1990, which

changed the INA’s employment-based visa categories. See Pub. L. No. 101-649, 104 Stat. 4978

(1990). As a result, an employer seeking an employment-based immigrant visa in order to hire a

foreign worker who plans to stay in this country has been required to submit much more

information and undergo greater examination than that required for temporary nonimmigrant

visas.

               Critical to understanding the facts is a change in immigration-based enforcement

adopted in 2003 when it was moved from INS to CIS. CIS initially adopted and followed pre-

existing and long-standing INS guidance memos and regulations. It has recently superseded the

INS guidance with its own guidance memos but issued no regulations. CIS defends its guidance

and practices as consistent with the law and regulations.

               It is useful to know that the Plaintiffs here are all petitioning employers that seek

H-1B visas for foreign workers who have expertise in the IT industry. Most Plaintiffs are

consulting firms that may place a visa holder with multiple clients over the course of a three-year

visa.

         A.    H-1B Visas

               H-1B3 visas are nonimmigrant visas for temporary workers coming to the United

States to work in a specialty occupation. The law admits, temporarily and as nonimmigrants, “an



3
 Although commonly referred to as an “H-1B Visa,” the statutory cite is to 8 U.S.C.
§ 1101(a)(15)(H)(i)(b).


                                                 4
alien . . . who is coming temporarily to the United States to perform services . . . in a specialty

occupation described in section 1184(i)(1) of this title . . . , who meets the requirements for the

occupation specified in section 1184(i)(2) of this title.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). For

these purposes, a specialty occupation requires a “theoretical and practical application of a body

of highly specialized knowledge, and [the] 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)(A)-(B); see also Royal Siam Corp. v. Chertoff, 484 F.3d 139, 144

(1st Cir. 2007) (“Congress has laid out eligibility standards for the granting of H-1B specialty

occupation visas.”) (citing 8 U.S.C. § 1101(a)(15)(H)(i)(b)).

               The first step when petitioning for an H-1B visa is for the U.S. employer to file a

Labor Condition Application with the Department of Labor (DOL). In that application, the

employer must attest that certain wages and working conditions for foreign workers will be

similar to domestic employees. An employer petitioning for an H-1B visa to admit a

nonimmigrant worker does not need to test the local employment market and first hire any

qualified, willing, and able U.S. worker. Nor does the 1990 Act require the employer to provide

documentary evidence in support of the Labor Condition Application when submitting it to DOL

for approval. Rather, U.S. employers are required to “attest” to five labor conditions concerning

pay rates, working conditions, labor peace, notice to employees and DOL, and agreement with

DOL enforcement, specifically:

           1. [The U.S. employer] will pay the alien(s) and other individuals
              employed in the occupational classification at the place of
              employment prevailing wages or actual wages whichever are
              greater;
           2. it will provide working conditions that will not adversely affect the
              working conditions of U.S. workers similarly employed;
           3. there is no strike or lockout in the course of a labor dispute in the
              occupational classification at the place of employment;


                                                  5
           4. it has publicly notified the bargaining representative of its
              employees in the occupational classification at the place of
              employment of its intent to employ an H-1B alien worker(s), or, if
              there is no bargaining representative, that it has posted such notice
              at the place of employment; and
           5. the employer must provide the information required in the
              application about the number of aliens sought, occupational
              classification, job duties, wage rate and conditions under which the
              aliens will be employed, date of need, and period of employment.

Interim Final Rule, 56 Fed. Reg. 54720, 54720-21 (October 27, 1991); see also 20 C.F.R. §§

655.731-655.735. The information required in a Labor Condition Application was also included

in the statute. See 8 U.S.C. § 1182(n)(1)(A)(i)(I) and (II), (n)(1)(B), (n)(1)(C), and (n)(1)(D).

               The Interim Final Rule quoted above was published by DOL in 1991 to provide a

regulatory process to handle Labor Condition Applications authorized by Congress in 1990. See

Interim Final Rule, 56 Fed. Reg. 54720. DOL recognized that the H-1B visa is temporary and

that lengthy preapproval inquiries would consume this time. Id. at 54721 (“The Department

believes that Congress . . . intended to provide greater protection than under prior law for U.S.

and foreign workers without interfering with an employer’s ability to obtain the H-1B workers it

needs on a timely basis. Accordingly, the Department is providing that a labor condition

application be accepted if it is complete, . . . thereby minimizing the time it takes to obtain

approval of H-1B workers.”). As a result, and directly in accord with the 1990 Act, DOL’s

regulations enforce the terms of Labor Condition Applications (wages, working conditions, etc.)

in a post-facto complaint-driven system rather than by prior examination. See 8 U.S.C.

§ 1182(n)(2)(A) (requiring DOL to “establish a process for the receipt, investigation and

disposition of complaints respecting a petitioner’s failure to meet a condition specified in an

application . . . or a petitioner’s misrepresentation of material facts in such an application” filed

by any aggrieved person or bargaining representative within 12 months of the failure or



                                                   6
misrepresentation). The DOL enforcement process was adopted in elaborate detail by Congress

and placed in the statute. See 8 U.S.C. § 1182(n)(2)(C); 20 C.F.R. § 655.800.

               After an employer receives a certificate from DOL, it may apply for an H-1B visa,

now with CIS, by submitting Form I-129 and supplemental documentation. 8 C.F.R.

§ 214.2(h)(2)(i)(A) (“A United States employer seeking to classify an alien as an H-1B . . .

temporary employee must file a petition on Form I-129, Petition for Nonimmigrant Worker, as

provided in the form instructions.”). Form I-129 requires information about the foreign worker,

as well as the employer who files the Form, requires disclosure if the foreign worker is going to

work at an off-site location, and asks if an itinerary is provided for the duration of the visa. See

Form I-129, https://www.uscis.gov/i-129 (Feb. 5. 2020). A “Checklist of Required Initial

Evidence for Form I-129” posted on the CIS website identifies such information as:

               Evidence showing the proposed employment qualifies as a specialty
               occupation

               Evidence showing the beneficiary is qualified to perform the
               specialty occupation

               ...

               A copy of any written contract between the employer and the
               beneficiary or a summary of the terms of the oral agreement under
               which the beneficiary will be employed

               An itinerary showing the date and places of assignment if the
               petition indicates that the beneficiary will be providing services at
               more than one location

               A corresponding Labor Condition Application (LCA) that has been
               certified by the Department of Labor (DOL) and signed by the
               petitioner and attorney/representative, if applicable

Checklist of Required Initial Evidence for Form I-129, H-1B Specialty Occupation Worker,

https://www.uscis.gov/i-129Checklist (Oct. 9, 2018).




                                                  7
                  The INS 1991 Regulation regarding nonimmigrants has not been rescinded or

modified by CIS. It specifies that the petition for an H-1B visa “must include an itinerary with

the dates and locations of the services or training and must be filed with USCIS as provided in

the form instructions” whenever service or training will occur in more than one location. 8

C.F.R. § 214.2(h)(2)(i)(B). CIS evaluates the visa petition and additional documental submitted

and approves or denies each visa independently. See id. § 214.2(h)(9)(i) (“USCIS will consider

all the evidence submitted and any other evidence independently required to assist in

adjudication.”). “An approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for

an alien in a specialty occupation shall be valid for a period of up to three years but may not

exceed the validity period of the labor condition application.” Id. § 214.2(h)(9)(iii)(A)(1).

       B.         INS and CIS Memoranda

                  1.     Three INS 1995 Guidance Memos

                  INS issued a series of “guidance memos” in the mid-90s that addressed the nature

of the evidence required in an H-1B visa application. The first INS guidance memorandum was

issued on June 6, 1995 and titled “Contracts Involving H-1B Petitioners.” American

Immigration Lawyers Association, INS on Contracts Involving H-1B Petitions (June 6, 1995),

https://www.aila.org/infonet/ins-contracts-involving-h-1b-petitions. The INS June 1995 Memo

permitted H-1B visa adjudicators to “request and consider any additional information deemed

appropriate to adjudicate a petition,” including specifically third-party contracts, on a case-by-

case basis. Id.

                  On November 11, 1995, INS issued a second guidance memorandum regarding

contract information, with the title “Supporting Documentation for H-1B Petitions.” American

Immigration Lawyers Association, INS on Supporting Documentation for H-1B Petitions (Nov.

13, 1995), https://www.aila.org/infonet/ins-supporting-documentation-for-h-1b-petitions. This


                                                  8
Memo clarified that it “should not be a normal requirement” for applicants to submit third-party

contracts. Id. Rather, the INS November 1995 Memo instructed that contracts should be

requested “only in those cases where the officer can articulate a specific need for such

documentation. The mere fact that a petitioner is an employment contractor is not a reason to

request such contracts.” Id.

               Finally, on December 29, 1995, INS issued a third guidance memorandum

regarding H-1B visa applications, titled “Interpretation Of The Term ‘Itinerary’ Found in 8 CFR

214.2(h)(2)(i)(B) As It Relates To The H-1B Nonimmigrant Classification.” American

Immigration Lawyers Association, Interpretation of Itinerary in H-1B Visas (Dec. 29, 1995),

https://www.aila.org/infonet/ins-interpretation-of-itinerary-in-h-1b-petitions. The INS December

1995 Memo first explained that the purpose of the itinerary requirement “is to insure [sic] that

alien beneficiaries accorded H status have an actual job offer and are not coming to the United

States for speculative employment.” Id. The INS December 1995 Memo also stated that “in the

case of an H-1B petition filed by an employment contractor, a general statement of the alien’s

proposed or possible employment is applicable since the regulation does not require that the

employer provide . . . the exact dates and places of employment.” Id. (emphasis in original).

Finally, the INS December 1995 memo cautioned employment contractor applicants that DOL

requires employers to “pay the alien the appropriate wage even during periods of time when the

alien is on travel or between assignments.” Id. CIS initially followed all of these INS 1995

Memos.

               2.     CIS 2010 Guidance Memo (Origin of Contested Employer-Employee
               Analysis)

               In 2010, CIS issued its own guidance memorandum that set out eleven (11)

factors to be considered in determining “whether a valid employer-employee relationship exists”



                                                 9
between the U.S. employer and the foreign worker. CIS MSJ, Ex. 2, Mem. from Donald Neufeld

(Jan. 8, 2010) (CIS 2010 Guidance Memo) [Dkt 15-2] at 3. It was titled “Determining

Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site

Placements.” Id. at 1. The CIS 2010 Guidance Memo identified the following factors to

consider when evaluating an employer-employee relationship:

               (1) Does the petitioner supervise the beneficiary and is such
               supervision off-site or on-site?
               (2) If the supervision is off-site, how does the petitioner maintain
               such supervision, i.e. weekly calls, reporting back to main office
               routinely, or site visits by the petitioner?
               (3) Does the petitioner have the right to control the work of the
               beneficiary on a day-to-day basis if such control is required?
               (4) Does the petitioner provide the tools or instrumentalities needed
               for the beneficiary to perform the duties of employment?
               (5) Does the petitioner hire, pay, and have the ability to fire the
               beneficiary?
               (6) Does the petitioner evaluate the work-product of the beneficiary,
               i.e. progress/performance reviews?
               (7) Does the petitioner claim the beneficiary for tax purposes?
               (8) Does the petitioner provide the beneficiary any type of employee
               benefits?
               (9) Does the beneficiary use proprietary information of the
               petitioner in order to perform the duties of employment?
               (10) Does the beneficiary produce an end-product that is directly
               linked to the petitioner’s line of business?
               (11) Does the petitioner have the ability to control the manner and
               means in which the work product of the beneficiary is
               accomplished?

Id. at 3-4. CIS adjudicators were instructed to evaluate these factors using a totality-of-the-

circumstances test and to determine if the petitioning employer had established its “right to

control” the foreign worker’s employment. Id. at 4. The CIS 2010 Guidance Memo also

indicated that documents used to demonstrate an employer-employee relationship could include




                                                 10
itineraries, one or more employment agreements, an offer letter, contracts between a U.S. client

and U.S. petitioning employer that explain the role of the foreign worker with the client,

statements of work, position descriptions, etc. Id. at 8-9.

               The CIS 2010 Guidance Memo also stated that petitioning employers were

required to provide itineraries when a foreign worker would be placed at more than one location.

Judge Gladys Kessler of this Court decided that the CIS 2010 Guidance Memo constituted only

guidance, which left discretion with the adjudicators; thus, it was not required to undergo notice-

and-comment rulemaking. See Broadgate Inc. v. USCIS, 730 F. Supp. 2d 240 (D.D.C. 2010).

No appeal was filed.

               3.      CIS 2018 Policy Memorandum (PM-602-0157)

               In 2018, CIS issued a Policy Memorandum that “establishe[d] USCIS policy

relating to H-1B petitions filed for workers who will be engaged at one or more third-party

worksites.” CIS MSJ, Ex. 3, 2018 Policy Memorandum (CIS 2018 Policy Memo) [Dkt. 15-3] at

1. It was titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party

Worksites.” Id. (emphasis added). According to CIS, the CIS 2018 Policy Memo “addresse[d]

the itinerary requirement . . . and the types of evidence an employer typically submits to meet its

statutory burden of demonstrating a specialty occupation in the context of placing workers at a

third-party worksite.” CIS MSJ at 14 (emphasis added).

               The CIS 2018 Policy Memo replaced the three INS 1995 Memos that had not

required petitioning employers to submit contracts or itineraries with exact dates and locations of

employment. See CIS 2018 Policy Memo at 1-2.4 It also reaffirmed the CIS 2010 Guidance


4
 The INS June and November 1995 Memos were superseded to the extent contrary to the CIS
2018 Policy Memo but the INS December 1995 Memo was “rescind[ed] . . . and [the CIS 2018
Policy Memo] supersede[d] any guidance from that memo.” CIS 2018 Policy Memo at ⁋ 3.


                                                 11
Memo and stated that the new policy was complementing those requirements. Id. at 2 (“This

P[olicy] M[emo] is intended to be read together with the [CIS 2010 Guidance] Memo and as a

complement to that policy.”).

               Critically for present purposes, the CIS 2018 Policy Memo specifically targeted

employer petitions that involve third-party worksites and required all such U.S. employer

petitioners to establish “by a preponderance of the evidence” that:

               The beneficiary [(foreign worker)] will be employed in a specialty
               occupation. This means that the petitioner has specific and non-
               speculative qualifying assignments in a specialty occupation for the
               beneficiary for the entire time requested in the petition; and

               The employer will maintain an employer-employee relationship with
               the beneficiary for the duration of the requested validity period.

Id. at 3 (emphases added). CIS stressed that “H-1B petitions do not establish a worker’s

eligibility for H-1B classification if they are based on speculative employment or do not establish

the actual work.” Id. at 4. Therefore, “uncorroborated statements describing the role” of the

foreign worker at a third-party worksite “are often insufficient.” Id. The 2018 Policy Memo

emphasized the requirement for corroborating “contracts and work orders” by warning that it

may otherwise “deny the petition.” Id. In addition, the CIS 2018 Policy Memo declared that the

applicable regulation, initially adopted by the INS in 1991 and interpreted by the INS in its 1995

Guidance Memos, requires an itinerary of work sites (and non-speculative work in a specialty

occupation) for the duration of a visa for any visa petitions that involve foreign workers

performing services in more than one location. See id. at 6 (citing 8 C.F.R § 214.2(h)(2)(i)(B)).

               Thus, while the INS 1995 Guidance Memos had authorized general statements

concerning the foreign worker’s role at a third-party site, and not a detailed itinerary unless

requested, the CIS 2018 Policy Memo emphasized “[t]here is no exemption from this regulatory




                                                 12
requirement.” Id. “An itinerary with the dates and locations of the services to be provided must

be included in all petitions that require services to be performed in more than one location . . . .

Adjudicators may deny the petition if the petitioner fails to provide an itinerary.” Id.

               The requirement of an itinerary is fulsome. “The itinerary should detail when and

where the beneficiary will be performing services.” Id. “Although the regulations only require

that an itinerary contain the dates and locations of the services to be provided . . . at multiple

worksites, a more detailed itinerary can help to demonstrate that the petitioner has non-

speculative employment.” Id. “[I]t could help” CIS to determine “qualifying assignments,” i.e.,

specific and non-speculative jobs, if a petitioning employer “specifies”: the dates of each

service; the “names and addresses of the ultimate employer(s)”; names, addresses, and telephone

number at each work location; and “[c]orroborating evidence for all of the above.” Id.

               A non-speculative and detailed itinerary that provides work information for the

entire duration of the requested visa is now critical because CIS “in its discretion, generally

limit[s] the approval period to the length of time demonstrated that the beneficiary will be placed

in non-speculative work and that the petitioner will maintain the requisite employer-employee

relationship.” Id. at 7. In other words, although the statute permits a three-year H-1B visa for

foreign workers in specialty occupations (with one possible three-year extension), CIS now

limits a visa’s duration to the length of time the petitioning U.S. employer can show that definite

work assignments exist.

               CIS attempted to protect the CIS 2018 Policy Memo by limiting language:

               This memorandum is intended solely for the training and guidance
               of USCIS personnel in performing their duties relative to the
               adjudication of applications and petitions. It is not intended to, does
               not, and may not be relied upon to create any right or benefit,
               substantive or procedural, enforceable at law or by any individual or




                                                  13
               other party in removal proceedings, in litigation with the United
               States, or in any other form or manner.

Id.

       C.      Contested H-1B criteria

               Plaintiffs challenge CIS’s current interpretation and application of three different

criteria to receive an H-1B visa: the revised employer-employee relationship requirement, the

new non-speculative work requirement, and the newly-interpreted itinerary requirement. CIS

rejects the terms Plaintiffs use to identify these criteria and argues that its requirements have

always been present in the statute and regulation, which have not changed.

               1.      Employer-Employee Relationship Requirement

               Only employers may apply for H-1B nonimmigrant visas. See 8 U.S.C.

§ 1101(a)(15)(H)(i)(b) (requiring the “intending employer” to file the petition); 8 C.F.R.

§ 214.2(h)(1)(i) (“Under section 101(a)(15)(H) of the Act, an alien may be authorized to come to

the United States temporarily to perform services or labor for, or to receive training from, an

employer, if petitioned for by that employer.”); id. § 214.2(h)(2)(i)(A) (“A United States

employer seeking to classify an alien as an H-1B . . . temporary employee must file a petition on

Form I-129, Petition for Nonimmigrant Worker, as provided in the form instructions.”). In 1991,

DOL engaged in formal rulemaking to define the nature of the “employer” who can apply for a

Labor Condition Application. DOL Advanced Notice of Proposed Rulemaking, Alien

Temporary Employment Labor Certification Process, 56 Fed. Reg. 11705-01 (March 20, 1991).

After notice and comment, DOL adopted a Final Rule that defined the “employer” as:

               (1) A person, firm, corporation, contractor, or other association or
               organization in the United States which suffers or permits a person
               to work within the United States;

               (2) Which has an employer-employee relationship with respect to
               employees under this part, as indicated by the fact that it may hire,


                                                 14
               pay, fire, supervise or otherwise control the work of any such
               employee; and

               (3) Which has an Internal Revenue Service tax identification
               number.

Proposed Rule, Labor Condition Applications and Requirements for Employers Using Aliens on

H-1B Visas in Specialty Occupations, 56 Fed. Reg. 37175-01, 37182 (Aug. 5, 1991) (DOL

Proposed Rule) (emphasis added).5

               INS adopted the definition of “employer” used by DOL, see INS Final Rule,

Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 56

Fed. Reg. 61111, 61121 (Dec. 2, 1991); see also 8 C.F.R. § 214.2(h)(4)(ii), and CIS has made no

change to the definition. Neither the underlying statute nor the regulation has been amended in

relevant part since 1991.

               The CIS 2018 Policy Memo instructs adjudicators to look for “[c]ontracts as

evidence to demonstrate the employer will maintain an employer-employee relationship”

throughout the visa duration. CIS 2018 Policy Memo at 5. CIS advises that “the chain of

contracts and/or legal agreements between the petitioner and the ultimate third-party worksite

may help USCIS to determine whether the requisite employer-employee relationship exists

and/or will exist.” Id.

               The CIS 2010 Guidance Memo plays a role here. Although framed as areas for

review, that Memo focused its analysis on the putative employer’s “right to control.” CIS 2010



5
  DOL amended the definition for “employer” in 2000, 2004, and 2008 to acknowledge the role
of CIS and new types of H-visas, but neither INS nor CIS adopted DOL’s amendments. See,
e.g., Final Rule, Employment Standards Administration; Labor Condition Application
Requirements for Employers Seeking to Use Nonimmigrants on E-3 Visas in Specialty
Occupations; Filing Procedures, 73 Fed. Reg. 19944-01, 19948 (April 11, 2008); 20 C.F.R.
§ 655.715 (2009).


                                               15
Guidance Memo at 3 (“In considering whether or not there is a valid ‘employer-employee

relationship’ for purposes of H-lB petition adjudication, USCIS must determine if the employer

has a sufficient level of control over the employee. The petitioner must be able to establish that

it has the right to control over when, where, and how the beneficiary performs the job.”). The

CIS 2010 Guidance Memo was expressly adopted by the CIS 2018 Policy Memo and carries its

emphasis on the “right to control” to the new interpretation of employer-employee relationship.

                 2.     Non-Speculative Work Requirement

                 In recent H-1B visa denials, CIS has declared that “H-1B petitions do not

establish a worker’s eligibility for H-1B classification if they are based on speculative

employment or do not establish the actual work the H-1B beneficiary will perform at the third-

party worksite.” Pls.’ MSJ, App’x [Dkt. 14-2], Nov. 9, 2018 CIS Decision re ERP Analysts Inc.

at 13.6 The denials emphasize that a petitioning employer must show, at the time it petitions for

an H-1B visa, that it “ha[s] a specific work assignment in place” for each foreign worker and

must “demonstrate that [it] ha[s] specific and non-speculative qualifying assignments in a

specialty occupation for the beneficiary for the entire time requested on the petition.” Id. CIS

will no longer accept attestations to fulfill this requirement. Id.

                 The CIS 2018 Policy Memo bases its new requirement that the petitioning

employer prove non-speculative work in a specialty occupation for the entirety of a visa on the

requirement that an H-1B visa holder must be employed in a specialty occupation. 7 See CIS



6
  All page references to Plaintiffs’ Appendix to its Motion for Summary Judgment refer to the
electronic case filing (ECF) page number.
7
    Congress defined specialty occupation as:

                 an occupation that requires—



                                                  16
2018 Policy Memo at 3 (“The beneficiary will be employed in a specialty occupation. This

means that the petitioner has specific and non-speculative qualifying assignments in a specialty

occupation for the beneficiary for the entire time requested in the petition.”).




               (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). The 1991 Regulation also defines a specialty occupation as

               an occupation which requires 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, and
               which requires the attainment of a bachelor’s degree or higher in a
               specific specialty, or its equivalent, as a minimum for entry into the
               occupation in the United States.

8 C.F.R. § 214.2(h)(4)(ii). And the 1991 Regulation further clarified that:

               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 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 [is] 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).


                                                 17
               3.      Itinerary Requirement

               INS originally issued the 1991 Regulation that requires an “itinerary” for

temporary foreign workers who work in multiple locations; it clarified in the December 1995

Memo that it “could accept a general statement of the alien’s proposed or possible employment,

since the regulation does not require that the employer provide the exact dates and places of

employment.” INS December 1995 Memo. CIS has rescinded the INS December 1995 Memo

and now requires an itinerary showing specific work and location for the entire duration of the

requested visa at the time of application. The itinerary requirement in the 1991 Regulation itself

remains as issued by INS:

               A petition that requires services to be performed or training to be
               received in more than one location must include an itinerary with
               the dates and locations of the services or training and must be filed
               with USCIS as provided in the form instructions. The address that
               the petitioner specifies as its location on the Form I-129 shall be
               where the petitioner is located for purposes of this paragraph.

Id. § 214.2(h)(2)(i)(B) (italics used to show where CIS replaced INS). What is new under the

CIS 2018 Policy Memo is the CIS requirement that jobs in specialty occupations are proven by

evidence submitted with the petition for the entire duration of the requested visa.

       D.      Procedural History

               After experiencing what they believed to be improper denials, IT consulting

agencies filed approximately thirty-three separate lawsuits in this District Court challenging the

authority of CIS to deny petitions based on what Plaintiffs argue are improper interpretations and

applications of the employer-employee relationship, non-speculative work assignment, and

itinerary requirements. The Calendar Committee for the District Court consolidated the cases for

a single decision on three overarching legal questions as identified above. As this Court has the

first of the approximately thirty-three cases, the consolidated issues were briefed and argued



                                                18
under case number 18-cv-2350, Itserve Alliance, Inc. v. United States Citizenship and

Immigration Services. The issues are ripe for review.8

                                 II.     LEGAL STANDARDS

       A.      Summary Judgment

               Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In a case involving review of a final agency

action under the Administrative Procedures Act, 5 U.S.C. § 706, however, the standard set forth

in Rule 56[ ] does not apply because of the limited role of a court in reviewing the administrative

record.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006) (internal citation

omitted), appeal dismissed, Nos. 06-5419 & 07-5004, 2007 WL 1125716 (D.C. Cir. Mar. 30,

2007); see also Charter Operators of Alaska v. Blank, 844 F. Supp. 2d 122, 126-27 (D.D.C.

2012); Buckingham v. Mabus, 772 F. Supp. 2d 295, 300 (D.D.C. 2011). The APA assigns to the

agency the resolution of factual issues and ability to make decisions and issue rules supported by

the administrative record, while “‘the function of the district court is to determine whether or not

as a matter of law the evidence in the administrative record permitted the agency to make the

decision it did.’” Sierra Club, 459 F. Supp. 2d at 90 (quoting Occidental Eng’g Co. v. INS, 753

F.2d 766, 769-70 (9th Cir. 1985)). “Summary judgment thus serves as the mechanism for

deciding, as a matter of law, whether the agency action is supported by the administrative record




8
  See Mem. in Supp. of Pls.’ Consolidated Mot. for Summ. J. (Pls.’ MSJ) [Dkt. 14-1]; Gov’t’s
Opp’n to Pls.’ Consolidated Mot. for Summ. J. and Cross-Mot. (CIS MSJ) [Dkt. 15]; Pls.’
Consolidated Resp. to the Agency’s Cross-Mot. for Summ. J. and Reply in Supp. of Pls.’ Mot.
for Summ. J. (Pls.’ Opp’n) [Dkt. 17]; Gov’t’s Reply in Supp. of its Cross-Mot. [Dkt. 19].


                                                 19
and otherwise consistent with the APA standard of review.” Id. (citing Richards v. INS, 554

F.2d 1173, 1177 & n.28 (D.C. Cir. 1977)).

       B.      Administrative Procedure Act

               The Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq., authorizes

federal courts to review federal agency actions and determine if they are arbitrary, capricious, or

not in accord with law. 5 U.S.C. § 706(2)(A); see also Tourus Records, Inc. v. DEA, 259 F.3d

731, 736 (D.C. Cir. 2001).

               There are time-tested principles behind this review. First, “an agency’s power is

no greater than that delegated to it by Congress.” Lyng v. Payne, 476 U.S. 926, 937 (1986); see

also Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir.

1992). Second, agency actions beyond delegated authority are ultra vires and should be

invalidated. Transohio, 967 F.2d at 621. Third, courts look to an agency’s enabling statute and

subsequent legislation to determine whether the agency has acted within the bounds of its

authority. Univ. of D.C. Faculty Ass’n/NEA v. D.C. Fin. Responsibility & Mgmt. Assistance

Auth., 163 F.3d 616, 620-21 (D.C. Cir. 1998) (explaining that ultra vires claims require courts to

review the relevant statutory materials to determine whether “Congress intended the [agency] to

have the power that it exercised when it [acted]”).

               When reviewing an agency’s interpretation of its enabling statute and the laws it

administers, courts are generally guided by “the principles of Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 . . . (1984).” Mount Royal Joint Venture v.

Kempthorne, 477 F.3d 745, 754 (D.C. Cir. 2007). Chevron’s Step One requires a court to

determine “[i]f Congress has directly spoken to [an] issue, [if so,] that is the end of the matter.”

Confederated Tribes of Grand Ronde Cmty. v. Jewell, 830 F.3d 552, 558 (D.C. Cir. 2016)

(discussing Chevron, 467 U.S. at 842-43). When Congress’s intent is unambiguous, both the


                                                 20
agency and the Court must honor that intent. See Lubow v. Dep’t of State, 783 F.3d 877, 884

(D.C. Cir. 2015) (quoting Chevron, 467 U.S. at 842-43). Chevron Step Two comes into play

when the text is silent or ambiguous. If the text is silent or ambiguous, courts must “determine if

the agency’s interpretation is permissible, and if so, defer to it.” Confederated Tribes, 830 F.3d

at 558. A permissible interpretation need not be “the best interpretation, only a reasonable one.”

Van Hollen, Jr. v. FEC, 811 F.3d 486, 492 (D.C. Cir. 2016) (internal quotation marks omitted).

               Even when an interpretation is reasonable under Chevron, “agency action is

always subject to arbitrary and capricious review under the APA.” Confederated Tribes, 830

F.3d at 559. An interpretation is arbitrary and capricious if the agency “relied on factors which

Congress has not intended it to consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise.” Agape Church, Inc. v. FCC, 738 F.3d 397, 410 (D.C. Cir. 2013) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). A

reviewing court must decide whether the agency action is “within the scope of [the agency’s]

lawful authority” and supported by “reasoned decisionmaking.” Tripoli Rocketry Ass’n v. ATF,

437 F.3d 75, 77 (D.C. Cir. 2006) (internal quotation marks omitted).

               If an agency action results in a change of its position, the agency must “display

awareness” of the change, but the agency is not required to meet a “heightened standard for

reasonableness.” Mary V. Harris Found. v. FCC, 776 F.3d 21, 24 (D.C. Cir. 2015) (internal

quotation marks omitted). “So long as any change is reasonably explained, it is not arbitrary and

capricious for an agency to change its mind in light of experience, or in the face of new or

additional evidence, or further analysis or other factors indicating that the agency’s earlier




                                                 21
decision should be altered or abandoned.” New England Power Generators Ass’n v. FERC, 879

F.3d 1192, 1201 (D.C. Cir. 2018).

               However, the Supreme Court has directed that “the scope of review under the

‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that

of the agency.” State Farm, 463 U.S. at 30. Rather, agency action is normally “entitled to a

presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415

(1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

         C.    Jurisdiction/Venue

               The Court has federal question jurisdiction, see 28 U.S.C. § 1331; 5 U.S.C. § 702,

because this lawsuit arises under a federal statute. Venue is proper because CIS is a U.S. agency

being sued for official action taken. See 28 U.S.C. § 1391(e)(1); see also Dehaemers v. Wynne,

522 F. Supp. 2d 240, 248 (D.D.C. 2007); Hunter v. Johanns, 517 F. Supp. 2d 340, 344 (D.D.C.

2007).

                                        III.    ANALYSIS

               In a nutshell, Congress designed the H-1B visa in 1990 to permit speedy

processing and temporary placement of foreign workers in specialty occupations as needed by

U.S. employers. CIS has selected H-1B visa petitions from IT consulting businesses, which hire

temporary foreign workers and place most of them with third parties for assignments of less than

three years, for special treatment with the effect of dramatically slowing the processing of such

visa petitions and reducing the accessibility by U.S. employers to such workers. These facts are

not contested. The question is whether, in so doing, CIS actions were consistent with law and/or

required formal rulemaking. The Court finds that CIS has exceeded the law and was required to

engage in formal rulemaking. The CIS 2018 Policy Memo is, therefore, invalid, as are the new




                                                 22
CIS interpretation and requirements concerning itineraries. Accordingly, the Court also finds

that CIS cannot enforce the CIS 2010 Guidance Memo against Plaintiffs.

        A.         Statute of Limitations

                   1.     INS 1991 Regulation

                   The government protests that Plaintiffs cannot challenge the INS 1991 Regulation

because this lawsuit was filed long after the six-year statute of limitations for APA claims found

in 28 U.S.C. § 2401. See Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014). The APA

limitations period begins to run “on the date of the final agency action.” Harris v. FAA, 353 F.3d

1006, 1010 (D.C. Cir. 2004).

                   There are two exceptions to this limitations period. First, if an agency issues

“some new promulgation” and “creates the opportunity for renewed comment and objection,” it

has effectively reopened a rule and the statute of limitations does not bar a challenge. P & V

Enters. v. Army Corps of Eng’rs, 516 F.3d 1021, 1024 (D.C. Cir. 2008). However, a general

debate on a topic does not reopen all related aspects. See Nat’l Ass’n of Reversionary Prop.

Owners v. Surface Transp. Bd., 158 F.3d 135, 142 (D.C. Cir. 1998) (“When an agency invites

debate on some aspects of a broad subject . . . it does not automatically reopen all related aspects

including those already decided.”). CIS argues that the CIS 2018 Policy Memo is not sufficient

to reopen the 1991 Rule for further challenges. Plaintiffs argue that the CIS 2018 Policy Memo

constituted a substantial review of the 1991 Rule and changed its requirements, thus reopening

the Rule itself.

                   “[W]here an agency’s actions show that it has not merely republished an existing

rule in order to propose minor changes to it, but has reconsidered the rule and decided to keep it

in effect, challenges to the rule are in order.” Public Citizen v. Nuclear Regulatory Comm’n, 901

F.2d 147, 150 (D.C. Cir. 1990). Cases regarding the reopening doctrine traditionally discuss the


                                                    23
ability of a notice of proposed rulemaking to “reopen” a prior rule but do not interpret a policy

memo as doing so. To determine if a rule has been reopened, courts look to the language used

by the agency.

                 An explicit invitation to comment on a previously settled matter,
                 even when not accompanied by a specific modification proposal, is
                 usually sufficient to affect a reopening. . . . Ambiguity in a[] [Notice
                 of Proposed Rulemaking] may also tilt toward a finding that the
                 issue has been reopened. . . . When an agency invites debate on
                 some aspects of a broad subject, however, it does not automatically
                 reopen all related aspects including those already decided.

Nat’l Ass’n of Reversionary Prop. Owners, 158 F.3d at 141-42. The CIS 2018 Policy Memo did

not invite debate or any comment on the 1991 Rule. It did not request input on the

interpretations announced by the Policy Memo itself, let alone the 1991 Rule, although it did

state that the new requirements, if unsatisfied, might lead to denial of a petition. CIS 2018

Policy Memo at 4 (“If the petitioner does not submit corroborating evidence or otherwise

demonstrate that there is a specific work assignment for the H-1B beneficiary, USCIS may deny

the petition.”); id. at 6 (“Adjudicators may deny the petition if the petitioner fails to provide an

itinerary, either with the initial petition or in response to a Request for Evidence.”). The

reopening exception to the statute of limitations is not applicable to reopen the 1991 Rule.

                 However, a challenge to a rule as it is applied or enforced may be brought within

six years of the enforcement action, without regard to when the rule was adopted. In this second

exception to the APA statute of limitations, the affected party may challenge the enforcement

action in an as-applied challenge and may raise the question of whether the agency lacked the

statutory authority to adopt the rule in the first place. See Indep. Cmty. Bankers of Am. v. Bd. of

Governors of Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. Cir. 1999) (holding “that a party against

whom a rule is applied may, at the time of application, pursue substantive objections to the rule,




                                                   24
including claims that an agency lacked the statutory authority to adopt the rule”); see also NLRB

Union v. Fed. Labor Relations Auth., 834 F.2d 191, 195 (D.C. Cir. 1987) (“[A] party who

possesses standing may challenge regulations directly on the ground that the issuing agency

acted in excess of its statutory authority in promulgating them. A challenge of this sort might be

raised, for example, by way of defense in an enforcement proceeding.”). 9

               Plaintiffs argue that each denial or partial approval of their H-1B visa applications

constituted an application of the 1991 Rule against them that is subject to challenge. CIS

responds that an as-applied challenge to a rule admits a narrow category of actions, which does

not encompass denials of visa applications. While it is true, as CIS contends, that not every

agency application of a rule supports an as-applied challenge, it is not accurate to argue that such

challenges are limited to formal enforcement actions. See Weaver v. Fed. Motor Carrier Safety

Admin., 744 F.3d 142, 145 (D.C. Cir. 2014) (“[T]he sort of ‘application’ that opens a rule to such

a challenge is not limited to formal ‘enforcement actions.’”).

               To support a challenge, an agency’s application or enforcement of its rule must be

specific to the challenging plaintiff. Examples of this limitation include when an agency relies

on its rule to impose limitations on a broadcast licensee, Functional Music, Inc. v. FCC, 274 F.2d

543, 547-48 (D.C. Cir. 1958); when an agency applies its rule to dismiss a complaint, Am. Tel. &

Tel. Co. v. FCC, 978 F.2d 727, 734 (D.C. Cir. 1992); and when an agency denies a lessee’s claim

for reimbursements under a rule, Murphy Expl. & Prod. Co. v. Dep’t of Interior, 270 F.3d 957,



9
  It is also possible to avoid the normal statute of limitations when an agency denies a petition to
amend or rescind a regulation; the petitioner can appeal the denial and challenge the regulation.
See NLRB Union, 834 F.2d at 196 (“The second method of obtaining judicial review of agency
regulations once the limitations period has run is to petition the agency for amendment or
rescission of the regulations and then to appeal the agency’s decision.”). This process is not
relevant here.


                                                 25
957-59 (D.C. Cir. 2001). CIS argues that this case is like Peri & Sons Farms, Inc. v. Acosta,

where the court rejected an as-applied complaint because the challenged action was not aimed at

the plaintiffs and did not affect them in a particular way. 374 F. Supp. 3d 63, 76 (D.D.C. 2019).

Peri challenged a general notice issued by the Department of Labor on updated annual wage

rates; the notice was not directed to the plaintiffs and, therefore, was not susceptible to an as-

applied challenge. Here, however, Plaintiffs are challenging the denials or partial approvals of

individual visa petitions. Each denial or partial approval is based on an application of the 1991

Rule and its current interpretations by CIS. Therefore, as relevant to individual Plaintiffs, the

Court concludes that they can raise as-applied challenges to the Rule itself and its enforced

interpretations by CIS in their visa denials or partial approvals.

               2.      CIS 2010 Guidance Memo

               For the same reasons discussed above regarding the 1991 Rule, as-applied

challenges to the CIS 2010 Guidance Memo will also be permitted as relevant to individual

Plaintiffs.

        B.     Challenge to the CIS 2018 Policy Memo

               Both parties spend significant time and energy arguing about whether Plaintiffs

may properly challenge the CIS 2018 Policy Memo. Defendant argues that the CIS 2018 Policy

Memo itself may not be challenged because it is an interpretive memorandum and not a

legislative rule. They ask the Court to evaluate the CIS 2018 Policy Memo as another court did

the CIS 2010 Guidance Memo in Broadgate Inc. v. USCIS, 730 F. Supp. 2d 240. Plaintiffs

contend that the CIS 2018 Policy Memo is a legislative rule because it abandons the 1991

Regulation’s “disjunctive test” of an employer-employee relationship “in favor of a test requiring

evidence of actual control” and it “unequivocally and unabashedly restricts its adjudicators’

discretion.” Pls.’ Opp’n at 12, 14.


                                                  26
               CIS has done everything it might to cloak the CIS 2018 Policy Memo in

unassailable interpretive language: it is titled a Policy Memorandum; it specifies that it affords

no rights to anyone; CIS asserts it is directed only to agency adjudicators, not to petitioners; and

it sprinkles conditional language (may, could, etc.) throughout.

               Nonetheless, the CIS argument fails. Although ostensibly directed to agency

adjudicators, the CIS 2018 Policy Memo “effects a substantive regulatory change to the statutory

or regulatory regime.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 653 F.3d 1, 6-7 (D.C.

Cir. 2011) (internal quotation marks omitted). A legislative rule supplements a statute, adopts a

new position inconsistent with existing regulations, or otherwise effects a substantive change in

existing law or policy. See Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014)

(“An agency action that purports to impose legally binding obligations or prohibitions on

regulated parties—and that would be the basis for an enforcement action for violations of those

obligations or requirements—is a legislative rule.”). An agency interpretation is substantively

invalid when “it conflict[s] with the text of the regulation the agency purported to interpret.”

Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 104-05 (2015). Courts have “refused to give

deference to an agency’s interpretation of an unambiguous regulation, observing that to defer in

such a case would allow the agency ‘to create de facto a new regulation.’” Id. at 104 (quoting

Christensen v. Harris Cty., 529 U.S. 576, 588 (2000)).

               There is no doubt that the CIS 2018 Policy Memo attempted to “impose legally

binding obligations . . . on regulated parties” that would be, and have been, “the basis for an

enforcement action.” Nat’l Mining Ass’n, 758 F.3d at 251. It has had an effect to which all of its

parts combine: as discussed further, it cherry picks from the formal 1991 Regulation to create a

new definition of employer, to which it grafts the CIS 2010 Guidance Memo; it adds substantive




                                                 27
requirements to the nature of the petitioning employer’s relationship to the H-1B visa recipient; it

adds meaningful requirements to the descriptions of work to be performed by H-1B visa

workers, with immediate corroborated evidence of such work for the duration of a visa; and it

demands fulsome itineraries on pain of denial for failure to comply. The CIS 2018 Policy Memo

is a legislative rule that may be directly challenged by the Plaintiffs.

               Additionally, Plaintiffs may mount an as-applied challenge to the CIS 2018 Policy

Memo by directly challenging the complete or partial denial of their visa petitions. CIS issued

final agency decisions on these petitions and its actions are reviewable. See Broadgate, 730 F.

Supp. 2d at 244 (“[T]he proper challenge would have been to a specific denial of a visa

application by the agency.”) (citing RCM Techs., Inc. v. Dep’t of Homeland Sec., 614 F. Supp.

2d 39, 45 (D.D.C. 2009)).

       C.      Challenged Reasons for Visa Denials

               As described above, Plaintiffs challenge three aspects of the CIS 2018 Policy

Memo: CIS’s current application of the employer-employee relationship, non-speculative work

assignment, and itinerary requirements to H-1B visa petitions. Defendant argues that Plaintiffs

go beyond the issues identified in the consolidation order. Not so. This Court was tasked with

deciding common issues presented in a large number of visa challenges. One of those issues was

specifically defined as “the authority of CIS to deny visas to companies that place employees at

third-party locations either because the third-party is determined to be the employer or because

specific and detailed job duties are not provided with the visa application.” See 3/6/2019 Minute

Order Referring Case for Limited Purpose (Consolidation Order), ERP Analysts v. Cissna, No.

19-cv-300. This issue encompasses CIS’s current definition of employer, requirement that

petitions include a detailed itinerary, and requirement that an application demonstrate non-




                                                  28
speculative work assignments for the entire length of the requested visa. These CIS policies are

at the heart of the collective challenges.

               1.      Sufficiency of Evidence of Employer-Employee Relationship

               Section 1184 of the INA states that “[t]he admission to the United States of any

alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General

may by regulations prescribe . . . .” 8 U.S.C. § 1184(a)(1). The statute continues:

               (1) The question of importing any alien as a nonimmigrant
               under subparagraph (H) . . . of this title . . . in any specific case or
               specific cases shall be determined by the Attorney General, after
               consultation with appropriate agencies of the Government, upon
               petition of the importing employer. Such petition, shall be made and
               approved before the visa is granted. The petition shall be in such
               form and contain such information as the Attorney General shall
               prescribe.

Id. § 1184(c)(1). From the requirement that the petition must be submitted by “the importing

employer” came the requirement of an employer-employee relationship between the petitioning

employer and the foreign worker. As discussed above, DOL crafted a definition of employer and

included it in its formal regulation concerning Labor Condition Applications. INS included, and

CIS has maintained, the identical definition of employer in its final rule regarding the visa

application process that DOL promulgated in its initial rule and subsequent changes to the

definition by DOL have not been adopted by INS or CIS. The INS definition applied by CIS

states:

               United States employer means a person, firm, corporation,
               contractor, or other association, or organization in the United States
               which:

               (1) Engages a person to work within the United States;

               (2) Has an employer-employee relationship with respect to
               employees under this part, as indicated by the fact that it may hire,
               pay, fire, supervise, or otherwise control the work of any such
               employee; and


                                                 29
                (3) Has an Internal Revenue Service Tax identification number.

8 C.F.R. § 214.2(h)(4)(ii) (emphasis added).

                Following issuance of the CIS 2018 Policy Memo, which incorporated and

reaffirmed the CIS 2010 Guidance Memo and added standards to evaluate an employer-

employee relationship, CIS has repeatedly denied visa petitions for a failure to demonstrate an

adequate employer-employee relationship. See, e.g., Pls.’ MSJ, App’x, Dec. 19, 2018 CIS

Decision re ERP Analysts Inc. at 1-4 (finding that there was insufficient evidence of an

employer-employee relationship even though the record reflected ERP Analysts would “pay the

beneficiary a salary, employee benefits, and employment related taxes”). CIS states in its

December 19, 2019 decision on ERP Analyst’s visa petition that the “employer-employee

relationship” is not a defined term by statute or regulation and, therefore, it is free to apply its

own interpretation of the “common-law agency doctrine.” Id. at 2 (citing Nationwide Mut. Ins.

Co. v. Darden, 503 U.S. 318, 322-23 (1992); Clackamas Gastroenterology Assocs., P.C. v.

Wells, 538 U.S. 440, 445 (2003)). CIS insists that it “must focus on the common-law touchstone

of ‘control’” as demonstrated by certain limited factors. Id. at 3. These “indicia of control”

include “when, where, and how a worker performs the job; the continuity of the worker’s

relationship with the employer; the tax treatment of the worker; the provision of employee

benefits; and whether the work performed by the worker is part of the employer’s regular

business.” Id. (citing Clackamas, 538 U.S. at 445). Even in situations where the employer will

“pay the beneficiary a salary, employee benefits, and employment related taxes,” CIS looks to

“[o]ther incidents of the relationship, e.g., who will oversee and direct the work of the

beneficiary, where will the work be located, and who has the right or ability to affect the projects




                                                  30
to which the beneficiary is assigned” to determine if the petitioning employer will be in a

continuous employer-employee relationship with the foreign worker. 10 Id. at 4.

               Plaintiffs argue that the new focus on “control” by CIS eviscerates the INS 1991

Regulation that recognizes an employer-employer relationship whenever the U.S. employer

“may hire, pay, fire, supervise, or otherwise control the work” of the employee. 8 C.F.R.

§ 214.2(h)(4)(ii) (emphasis added). Plaintiffs contend that CIS ignores the disjunctive in the

word “or” in the INS 1991 Regulation and instead silently replaced it with an “and” that requires

the employer to “otherwise control” the work of the foreign worker in all instances instead of

recognizing that the necessary degree of “control” is fulfilled by each of the examples in the

Regulation.

               To begin its analysis, the Court must determine the degree of deference that is due

to CIS in this instance. An agency’s interpretation of its own regulations is “controlling unless

plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461

(1997) (internal quotation marks and citation omitted); see also Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 359 (1989) (“This interpretation of the agency’s own regulation

is not plainly erroneous or inconsistent with the regulation, and is thus controlling.”) (internal

quotation marks and citation omitted). The definition in the INS 1991 Regulation at issue—8

C.F.R. § 214.2(h)(4)(ii)—was drafted by DOL and then incorporated by INS as its own. Until

2018, the same definition had been used by CIS. Plaintiffs argue that because INS was not the

original author of the definition of employer-employee relationship included in the INS 1991



10
  CIS appears to apply a very limited meaning to an “assignment,” restricting the determination
of who assigns work to the entity that issues day-to-day work orders, rather than considering the
fact that the IT consulting company (and visa petitioner) does the initial assignment of the H-1B
visa holder to one or more clients in need of the worker’s occupational skills.


                                                 31
Regulation, and thereafter used by CIS, no deference should be given to the CIS interpretation.

The Court need not resolve this issue, because even evaluating the CIS interpretation under Auer,

it is clear that it conflicts with the INS 1991 Regulation and, therefore, receives no deference.

               CIS argues that the term “employer-employee relationship” is undefined and that

it merely interpreted the existing INS 1991 Regulation, adopted without change by CIS, but the

argument fails. First, of course, the INS 1991 Regulation clearly articulated the criteria that

define the employer-employee relationship in this context, see 8 C.F.R. § 214.2(h)(4)(ii) (part 2

of the definition of United States employer), and CIS cites only the “common law” to support its

reliance on a single criterion while ignoring all others. The common law may be a useful

touchstone but cannot contradict or limit a clear regulation that has been applied with no

objection or correction for almost three decades. A new interpretation by CIS decades later that

emphasizes one regulatory criterion to the derogation of others, without any relevant change in

the underlying statute, is not worthy of deference. The singular emphasis given by CIS to

“otherwise control” is revealed by its explanations and its reliance on common law. Because the

Court finds that the limited meaning of “employer-employee relationship” as announced and

implemented by the CIS 2018 Policy Memo is inconsistent with the longstanding INS 1991

Regulation, it required formal rulemaking and cannot be upheld. The combination of the CIS

2018 Policy Memo and the CIS 2010 Guidance Memo—to which the former gave strict and

required reading—destroys any discretion left to CIS adjudicators and renders the 2010

Guidance Memo similarly invalid as applied to Plaintiffs.

               The INS 1991 Regulation at issue specifies that the employer “may hire, pay, fire,

supervise, or otherwise control the work of [the] employee.” 8 C.F.R. § 214.2(h)(4)(ii).

Therefore, an employer-employee relationship is evidenced by some aspect of “control” which




                                                 32
may be shown in various ways, be it the ability to hire, to pay, to fire, to supervise, or to control

in another fashion. The use of “or” distinctly informs regulated employers that a single listed

factor can establish the requisite “control” to demonstrate an employer-employee relationship.

This formulation makes evident that there are multiple ways to demonstrate employer control,

that is, by hiring or paying or firing or supervising or “otherwise” showing control. In context,

“otherwise” anticipates additional, not fewer, examples of employer control. INS borrowed the

DOL definition and used it in the INS 1991 Regulation, which it then interpreted in the INS 1995

Guidance Memos that governed for over twenty years without congressional action. The CIS

2018 Policy Memo abandoned the regulation’s examples of employer control and its expansive

use of “otherwise.” Instead CIS drilled down and now requires the assignment of day-to-day

tasks to show the requisite control of an employer-employee relationship. This new

interpretation was an erroneous effort to substitute the agency’s understanding of common law

for the unambiguous text of the INS 1991 Regulation and is inconsistent with it. The Court finds

that CIS has improperly avoided the rulemaking process and, therefore, may not read any single

criterion in § 214.2(h)(4)(ii) as mandatory to demonstrate an employer-employee relationship but

must consider each sufficient to establish the relationship, including, but not limited to,

“otherwise” showing control.11

               2.      Proof of Non-Speculative Work Assignments

               The second and third challenged reasons for visa denials are entwined as both

relate to CIS’s current requirement that a petitioning employer provide proof of non-speculative



11
   Therefore, the Court will remand the challenged visa applications pending before this Judge
for CIS to reevaluate its determinations about the existence of an employer-employee
relationship without requiring an employer “otherwise control” if another indicia of control is
demonstrated.


                                                  33
work assignments for the entire time of an H-1B visa (usually three years) at the time the petition

is submitted. CIS has linked the requested evidence with both the need to be employed in a

specialty occupation and the requirement that employers provide an itinerary when the H-1B

worker will perform services in more than one location.

                       a.      Specialty Occupation

               The statute defines specialty occupation. See 8 U.S.C. § 1184(i). INS included

this same definition in the INS 1991 Regulation:

               an occupation which requires 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). INS also described the evidence that would demonstrate a qualifying

position. See 8 C.F.R. § 214.2(h)(4)(ii) and (iii)(A). Recently CIS has denied H-1B visa

petitions for failure to demonstrate that the H-1B worker would be employed in a specialty

occupation because the petition did not include evidence of non-speculative work assignments

for the entire duration of the visa. See, e.g., Dec. 19, 2018 CIS Decision re ERP Analysts Inc. at

6-7; Pls.’ MSJ, App’x, Nov. 9, 2018 CIS Decision re ERP Analysts Inc. at 11-14; Pls.’ MSJ,

App’x, Dec. 26, 2018 CIS Decision re Mythri Consulting LLC at 27-30. Plaintiffs complain that

CIS mis-uses the definition of a qualifying position—one that “requires theoretical and practical

application of a body of highly specialized knowledge,” 8 C.F.R. § 214.2(h)(4)(ii)—by requiring

the petitioning U.S. employer to demonstrate that it has specific and non-speculative assignments

for the entire time requested in the petition, that is, to present corroborated evidence of future IT

assignments for the entire three-year period. Plaintiffs argue that the new requirement to prove




                                                 34
non-speculative work assignments for a full three years is not supported by statute or regulation

and exceeds the authority of CIS.

               The Court again starts with the question of deference. When reviewing an

agency’s interpretation of its enabling statute and the laws it administers, courts are guided by

“the principles of Chevron.” Mount Royal Joint Venture, 477 F.3d at 754. Chevron established

a two-step inquiry to guide the analysis. The initial question is “whether Congress has directly

spoken to the precise question at issue.” Chevron, 467 U.S. at 842. If so, then “that is the end of

the matter” because both courts and agencies “must give effect to the unambiguously expressed

intent of Congress.” Id. at 842-43. To decide whether Congress has addressed the precise

question at issue, a reviewing court applies “the ‘traditional tools of statutory construction.’”

Fin. Planning Ass’n v. SEC, 482 F.3d 481, 487 (D.C. Cir. 2007) (quoting Chevron, 467 U.S. at

843 n.9). It analyzes “the text, structure, and the overall statutory scheme, as well as the problem

Congress sought to solve.” Id. (citing PDK Labs. Inc. v. DEA, 362 F.3d 786, 796 (D.C. Cir.

2004); Sierra Club v. EPA, 294 F.3d 155, 161 (D.C. Cir. 2002)). When the statute is clear, the

text controls and no deference is extended to an agency’s interpretation that is in conflict with the

text. Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 210-11 (2011). If the statute is ambiguous

or silent on an issue, a court proceeds to the second step of the Chevron analysis and determines

whether the agency’s interpretation is based on a permissible construction of the statute.

Chevron, 467 U.S. at 843; see also Sherley v. Sebelius, 644 F.3d 388, 393-95 (D.C. Cir. 2011).

               The precise question at issue is: what is a specialty occupation? Congress

provided clear guidance on the answer. It defined “specialty occupation” in the law. 8 U.S.C.




                                                 35
§ 1184(i). Importantly, Congress devised a definition for an “occupation,” not a “job.” 12 Thus, a

specialty occupation would likely encompass a host of jobs, from trainee to expert along with

concomitant but differing personal job duties. The statute requires that the petitioning employer

only employ those who are qualified in specialty occupations. Nothing in its definition requires

specific and non-speculative qualifying day-to-day assignments for the entire time requested in

the petition. While an H-1B visa holder who works in a single location in a specialty occupation

is assumed by CIS to receive qualifying daily assignments, CIS requires Plaintiffs to prove, by a

preponderance of the corroborated evidence, that the daily assignments of their H-1B visa

holders will be in their specialty occupation. This begs a rational explanation: very few, if any,

U.S. employer would be able to identify and prove daily assignments for the future three years

for professionals in specialty occupations. What the law requires, and employers can

demonstrate, is the nature of the specialty occupation and the individual qualifications of foreign

workers.

               CIS cites the “[s]tandards for [a] specialty occupation position” set out by the INS

1991 Regulation adopted by CIS. See 8 C.F.R. § 214.2(h)(4)(iii)(A). The INS 1991 Regulation

states:

               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

12
  A “job” is defined in Merriam-Webster as “a regular remunerative position” or “a specific
duty, role, or function.” Merriam-Webster, https://www.merriam-webster.com/dictionary/
job?src=search-dict-hed (last visited Feb. 28, 2020). An “occupation” is defined as “the
principal business of one’s life.” Merriam-Webster, https://www.merriam-webster.com/
dictionary/occupation (last visited Feb. 28, 2020).


                                                36
               employer may show that its 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 [is] so specialized and complex
               that knowledge required to perform the duties is usually associated
               with the attainment of a baccalaureate or higher degree.

Id. CIS argues that the fourth criterion justifies its requirement that employers identify non-

speculative assignments in a specialty occupation for the term of the H-1B visa. As CIS is

justifying its actions through an interpretation of its own regulation, Auer deference applies. See

Auer, 519 U.S. at 461 (holding an agency’s interpretation of its own regulations is “controlling

unless plainly erroneous or inconsistent with the regulation”).

               However, CIS justifies its interpretation by reading the “or” in the INS 1991

Regulation as if it were “and.” Under the regulation, an employer must “meet one of the

following [four] criteria” to establish that the employee will be placed in a specialty occupation.

8 C.F.R. § 214.2(h)(4)(iii)(A). Criteria one, two, and three address various ways a baccalaureate

or other degree may suffice. The fourth criterion does not erase the prior three; to the contrary, it

offers an alternative by which a petitioning employer may submit evidence of “specialized and

complex” duties that usually require a degree but which the foreign worker has the experience to

perform without such studies. Obviously, an employer satisfies the regulation by demonstrating

a specialty occupation through evidence that a degree is required to hold the position, without

any consideration of the fourth criterion.

               CIS appears to argue that the reference in the fourth criterion to “[t]he nature of

the specific duties” being “specialized and complex” supports its new requirement of proof of a

worker’s day-to-day job assignments, rather than his occupation. There is no such requirement

in the fourth criterion of the regulation, which recognizes a specialty occupation when “[t]he


                                                 37
nature of the specific duties are so specialized and complex” that a baccalaureate or higher

degree is usually required, id. § 214.2(h)(4)(iii)(A)(4), much less in criteria one, two, and three.

The reference to the “nature of the specific duties” may seem to support the CIS position but it is

a mirage. The regulation offers one way to demonstrate a specialty occupation when a foreign

worker does not have a degree but can perform complex duties in an occupation that usually

requires a degree. The general statement pertaining to such a demonstration does not apply to all

H-1B visa holders. It cannot be expanded, under the guise of policy, to require advance notice of

all assignments and work duties at the time of petition. 13 The CIS interpretations of the INS

1991 Regulation are plainly erroneous.14

                       b.      Itinerary Requirement

               CIS has also denied, or partially denied, H-1B visas because the accompanying

itinerary did not include descriptions of non-speculative work assignments for the duration of the

requested visa. See, e.g., Dec. 26, 2018 CIS Decision re Mythri Consulting LLC at 25-26.

Plaintiffs challenge the itinerary requirement in its entirety and also argue that the new CIS

requirement of three years’ worth of non-speculative work assignments is inconsistent with the



13
  The denials to Plaintiffs’ petitions often reference Defensor v. Meissner, 201 F.3d 384, 387
(5th Cir. 2000), as support for the CIS requirement of specific work assignments. Defensor held
that the contractor employer could be required to show that the entity where the nurses would be
placed required a degree, thereby ensuring that the position was a specialty occupation. Id. at
387-88. CIS attempts to extend Defensor’s holding to require that “[t]he actual work to be
performed by the beneficiary will be in a specialty occupation based on the work requirements
imposed by the end-client who uses the beneficiary’s services.” Dec. 19, 2018 CIS Decision re
ERP Analysts Inc. at 6. But Defensor merely applied the definition of “specialty occupation”
which normally requires a degree. This Court’s conclusions, above, are not inconsistent.
14
   Therefore, the Court will remand all the challenged visa applications that are pending before
this Judge for CIS to reconsider only whether the occupations qualify as “specialty occupations”
under the governing INS 1991 Regulation without the requirement that employers provide non-
speculative work assignments for the entire duration of a visa period.



                                                 38
statutory authorization of periods of paid “non-productive status” for holders of H-1B visas in

between jobs. See American Competitiveness and Workforce Improvement Act of 1998

(ACWIA), Pub. L. 105-277, 112 Stat. 2681 (October 21, 1998), codified at 8 U.S.C.

§ 1182(n)(2)(C)(vii) (clarifying that an employer of an H-1B nonimmigrant who places the

employee “in nonproductive status” and “fail[s] to pay the nonimmigrant full-time wages” has

failed to meet a condition of the Labor Condition Application). 15

               When INS issued the INS 1991 Regulation, it included an itinerary requirement

which remains outstanding:

               A petition that requires services to be performed or training to be
               received in more than one location must include an itinerary with
               the dates and locations of the services or training and must be filed
               with USCIS as provided in the form instructions. The address that
               the petitioner specifies as its location on the Form I-129 shall be
               where the petitioner is located for purposes of this paragraph.

8 C.F.R. § 214.2(h)(2)(i)(B). Thus, the itinerary requirement is not in the statute. CIS tracks the

genesis of the itinerary requirement to the statutory grant of authority provided to the Attorney

General, noting that Congress provided that “admission to the United States of any alien as a

nonimmigrant shall be for such time and under such conditions as the Attorney General may by

regulation prescribe.” 8 U.S.C. § 1184(a)(1); see also CIS MSJ at 33-34.16 As discussed above,

the INS 1991 Regulation can only be challenged on an “as applied” basis.


15
  The non-productive status provision was drafted to address “benching.” “Benching was a
practice where, after being granted H1B status, an employer would ‘bench’ an employee when it
lacked work for the employee to do, and the employer would not pay the employee during this
period of benching.” Pls.’ MSJ at 33-34. Periods without work are now allowed for H-1B visa
holders as long as they continue to be paid.
16
  Plaintiffs acknowledge that § 214.2(h)(2)(i)(B) includes an itinerary requirement, but they
argue that that section was intended to control entertainers and performers in the use of
nonimmigrant visas, not specialty workers in general. Plaintiffs point to a proposed 1998 rule
that was never finalized, which they believe demonstrates that INS intended to clarify that an



                                                39
                Here, too, CIS has misread the statute—which speaks of “specialty occupations”

performed by educated persons—as meaning daily work assignments. Thus, while the INS 1991

Regulation seeks “dates and locations” of the services to be provided, 8 C.F.R.

§ 214.2(h)(2)(i)(B), it does not include work assignments or the identity of those making daily

assignments. Indeed, INS interpreted its own INS 1991 Regulation broadly in the 1995

Guidance Memos which CIS has rescinded or superseded. Now, without rulemaking, CIS

requires new details in an itinerary that are inconsistent with a professional “specialty

occupation” as previously enforced for decades and inconsistent with the regulation.

                The Court concludes that, as applied to these Plaintiffs in the IT consulting sector,

it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS,

requiring contracts or other corroborated evidence of dates and locations of temporary work

assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business

model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates

the legislative nature of the CIS interpretation of the Regulation because it would effectively

destroy a long-standing business resource without congressional action.

                Plaintiffs’ final challenge to the itinerary requirement is that it is inconsistent with

the ability of employers to place H-1B visa employees in “non-productive status” if suitable

work is unavailable. Plaintiffs argue that Congress considered the possibility that at some point

during a three-year visa period, an H-1B visa holder might not engage in qualifying work or

qualifying work might not be available. In response, Congress enacted the ACWIA, to permit

employers to place holders of H-1B visas in “non-productive status” as long as the employer



itinerary was only expected from foreign entertainers and performers. The 1998 Proposed Rule
never morphed into a Final Rule and the itinerary requirement in the 1991 Regulation continues
unchanged.


                                                   40
continued to pay the approved fulltime wage. See 8 U.S.C. § 1182(n)(2)(C)(vii)(I) (“It is a

failure . . . for an employer, who has filed an application under this subsection and who places an

H-1B nonimmigrant designated as a full-time employee . . . in nonproductive status due to a

decision by the employer (based on factors such as lack of work), or due to the nonimmigrant’s

lack of a permit or license, to fail to pay the nonimmigrant full-time wages . . . for all such

nonproductive time.”). Obviously, in 1998 Congress anticipated non-working periods during the

term of an H-1B visa and moved to avoid any negative impact on U.S. employees by making

foreign workers cheaper to employ. See id.

               The Court finds that the itinerary requirement, as imposed by the CIS

interpretation of the INS 1991 Regulation and applied to Plaintiffs by the CIS 2018 Policy

Memo, is incompatible with the 1998 ACWIA that addresses the same subject, in immediately-

related administrative schemes, and authorizes employers to place H-1B visa holders in paid

non-productive status.17 Therefore, the itinerary requirement in the INS 1991 Regulation, as

adopted by INS and now enforced by CIS, has been superseded by statute and may not be

applied to H-1B visa applicants.18

       D.      Authority of CIS to Grant H-1B Visas for Less Than Three Years

               The final consolidated question to be resolved is whether CIS has the authority to

issue partial denials and grant H-1B visas for less than three years. It has traditionally been the

practice of U.S. employers to petition for H-1B visas for the full three-year term. Until the CIS


17
  DOL is responsible for monitoring compliance with all labor conditions and may, on
complaint, fine or otherwise penalize employers who do not adhere to the Labor Condition
Application. The ACWIA declared that an employer who placed H-1B visa holders in non-
productive status, with full-time pay, committed no violation.
18
  The Court will remand all challenged visa applications pending before this Judge, denied by
CIS in whole or in part due to the itinerary requirement, to CIS for reconsideration consistent
with this Opinion.


                                                  41
2018 Policy Memo, both INS and CIS usually granted or denied visa petitions in their entirety

without limiting the term by only granting in part. Plaintiffs contend that CIS must continue this

practice, that is, that CIS may only grant or deny H-1B visas in their entirety.

               The same statute that granted INS authority to regulate the new H-1B visas for

nonimmigrants also permitted the Attorney General to determine applicable time limits. See 8

U.S.C. § 1184(a)(1) (“The admission to the United States of any alien as a nonimmigrant shall be

for such time and under such conditions as the Attorney General may by regulation prescribe.”)

(emphasis added). The statute provided only one caveat, to-wit, “the period of authorized

admission as such a nonimmigrant may not exceed 6 years.” Id. § 1184(g)(4). The INS 1991

Regulation, which has been adopted and maintained by CIS without substantive change,

addressed the issue:

               Validity. The initial approval period of an H petition shall conform
               to the limits prescribed as follows:

               (A)(1) H-1B petition in a specialty occupation. An approved
               petition classified under section 101(a)(15)(H)(i)(b) of the Act for
               an alien in a specialty occupation shall be valid for a period of up to
               three years but may not exceed the validity period of the labor
               condition application.

8 C.F.R. § 214.2(h)(9)(iii) (emphasis added). Such a visa may be extended for an additional

three years. See id. § 214.2(h)(15)(ii)(B)(1) (“An extension of stay may be authorized for a

period of up to three years for a beneficiary of an H-1B petition in a specialty occupation or an

alien of distinguished merit and ability. The alien’s total period of stay may not exceed six

years.”). The plain language of the INS 1991 Regulation provides that CIS may issues visas “for

up to three years.” Id. §§ 214.2(h)(9)(iii), 214.2(h)(15)(ii)(B)(1). It did not require INS, and

does not require CIS, to grant or deny a petition for the entire period requested, although that was




                                                 42
the usual practice until 2018. The INS 1991 Regulation clearly allows petitions to be granted for

“up to three years,” which necessarily allows for lesser periods as well.

               However, it is uncontested that both INS and CIS have almost uniformly granted

a visa petition for three years until recently. The CIS 2018 Policy Memo introduced a practice of

granting visa petitions from IT consultants for less than three years, which represents a change

after decades of past practice on which petitioning U.S. employers have come to rely—and

which, presumably, remains the practice for employers in other industries. In these

circumstances, CIS must provide a legitimate reason for any decision to deny, in whole or in

part, each petition for an H-1B visa. The agency must “set forth its reasons for decision; an

agency’s failure to do so constitutes arbitrary and capricious agency action.” Tourus Records,

259 F.3d at 737 (internal quotation marks omitted); see also Amerijet Int’l, Inc. v. Pistole, 753

F.3d 1343, 1350 (D.C. Cir. 2014) (“At bottom, an agency must explain ‘why it chose to do what

it did.’”) (quoting Tourus Records, 259 F.3d at 737).

               Insofar as CIS denied Plaintiffs’ petitions for H-1B visas, in whole or in part,

without setting forth legitimate reasons for its decisions, the agency actions were arbitrary and

capricious in violation of the APA.

                                       IV. CONCLUSION

               For the foregoing reasons, the Court will grant in part and deny in part Plaintiffs’

Motion for Summary Judgment [Dkt. 14], grant in part and deny in part Defendant’s Cross-

Motion for Summary Judgment [Dkt. 16]. The subset of cases that are assigned to Judge

Rosemary M. Collyer will be remanded to CIS for reconsideration consistent with this Opinion

and the Court will order that such reconsideration shall be completed in no more than 60 days.

This Opinion and accompanying Order will be filed on the dockets of all the cases consolidated




                                                43
for a limited purpose. The parties in those cases assigned to other judges will be ordered to file a

joint status report regarding the effect of this decision on their specific cases no later than two

weeks after the issuance of this Opinion. A memorializing Order accompanies this Opinion.



Date: March 10, 2020
                                                   ROSEMARY M. COLLYER
                                                   United States District Judge




                                                  44
