                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                          )
BARCHART.COM,                             )
                                          )
      Plaintiff,                          )
                                          )
             v.                           ) Case No. 19-cv-00556 (APM)
                                          )
MARK KOUMANS, 1                           )
                                          )
      Defendant.                          )
_________________________________________ )

                                       MEMORANDUM OPINION

        Plaintiff Barchart.com challenges the decision of the Vermont Service Center Director of

the United States Citizenship and Immigration Services (“USCIS”) denying the H-1B visa

application submitted on behalf of Marcos Piva Pinheiro Reis, one of Plaintiff’s employees. See

generally Mem. of P. & A. in Supp. of Pl.’s Mot. for Summ. J., ECF No. 9-1 [hereinafter Pl.’s

Mot.]. Before the court are the parties’ cross-motions for summary judgment. For the reasons set

forth below, the court grants Plaintiff’s Motion, denies Defendant’s Motion, and remands this

matter for further proceedings consistent with this Memorandum Opinion.

                                                        I.

                                                        A.

        The Immigration and Nationality Act (“INA”) allows for temporary visas for foreign

workers who are coming to the United States to engage in “a specialty occupation” for a sponsoring

employer, known as H-1B visas. 8 U.S.C. § 1101(a)(15)(H)(i)(b). To participate in the H-1B

program, employers must complete a two-step process. First, the employer must submit a Certified



1
 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Director Mark Koumans is automatically substituted
as the Defendant for former Director L. Francis Cissna.
Labor Condition Application (“LCA”) to the Department of Labor (“DOL”). Id. § 1182(n)(1);

20 C.F.R. § 655.730(a). The LCA must list information such as the place of employment, the

nature of the employment, dates of employment, and wages. See 8 U.S.C. § 1182(n)(1)(D);

20 C.F.R. § 655.730(c)(4). Second, if the DOL certifies the LCA, then the employer must submit

to USCIS the LCA along with a Form I-129 petition requesting the classification of the employee

as an H-1B nonimmigrant worker. 8 C.F.R. § 214.2(h)(2)(i)(A). USCIS then decides whether the

position qualifies as a specialty occupation. 20 C.F.R. § 655.715 (“Determinations of specialty

occupation and of nonimmigrant qualifications for the H-1B and H-1B1 programs are not made

by the [DOL], but by the Department of State and/or [USCIS] of the Department of Homeland

Security in accordance with the procedures of those agencies for processing visas, petitions,

extensions of stay, or requests for change of nonimmigrant status for H1-B or H-1B1

nonimmigrants.”).

       The regulations define 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 “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). To qualify as a specialty occupation, the position must satisfy 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

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                 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 are so specialized and
                 complex that knowledge required to perform the duties is usually
                 associated with the attainment of a baccalaureate or higher degree.

Id. § 214.2(h)(4)(iii)(A). The burden of proof rests on the petitioner to establish that the offered

position is a specialty occupation and the nonimmigrant worker qualifies for the position. See 18

U.S.C. § 1361.

                                                 B.

       In April 2018, Plaintiff filed a Form I-129, Petition for a Nonimmigrant Worker, with

USCIS. Certified Administrative Record, ECF Nos. 16-1, 16-2 [hereinafter CAR], at 30–37, 45–

47. Plaintiff’s Petition detailed that Marcos Piva Pinheiro Reis would be hired as a “Market

Analysis Representative,” id. at 33, and that he had a bachelor’s degree in finance, id. at 45.

Plaintiff also submitted a short letter in support of the Petition, which detailed Barchart’s

background, a description of the position, Reis’s qualifications for the specialty occupation, and

the terms of employment. Id. at 48–49.

       In September, USCIS informed Plaintiff that it required “additional evidence” to process

the Petition and to determine whether the “proffered position is a specialty occupation.” Id. at 93–

101. In response, Plaintiff submitted a number of additional documents. See id. at 121 (listing the

“accompanying documents” in Plaintiff’s response to USCIS’s “request for evidence”). One of

the items that Plaintiff provided was a declaration from Ethan Robinson, Senior Program Manager

of Barchart.com. Id. at 136–37. Plaintiff highlighted the Robinson Declaration in a 12-page cover

letter, which quoted extensively from the Robinson Declaration and pointed to specific language



                                                  3
from the Declaration that explained Reis’s role and duties with the company and the ways in which

his undergraduate finance degree was necessary to his job responsibilities. Id. at 121–32.

       Approximately one month later, in January 2019, Plaintiff received a decision from USCIS

denying the Petition and an H-1B visa for Reis. Id. at 4–13. Plaintiff filed suit in February 2019,

and the parties then filed cross-motions for summary judgment, which are now before the court.

Pl.’s Mot.; Def.’s Cross-Mot. for Summ. J., ECF No. 10.

                                                 II.

       Under the APA, the court may review a final agency action to determine whether it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A).

               Normally, an agency rule would be arbitrary and capricious if the
               agency has 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.

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

The “focal point for judicial review” is the existing administrative record. Camps v. Pitts, 411

U.S. 138, 142 (1973). The court’s review “must be searching and careful,” Marsh v. Or. Nat. Res.

Def. Council, 490 U.S. 360, 378 (1989) (citation and internal quotations marks omitted), and the

court “may not supply a reasoned basis for the agency’s action that the agency itself has not given,”

State Farm, 463 U.S. at 43 (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

       The parties make a number of arguments in their briefing, but the court need only consider

one: whether the agency considered all of the evidence before it when making its decision.

Barchart argues that the agency’s decision was arbitrary and capricious because, after providing a



                                                 4
“more detailed explanation of [Reis’s job] duties”; Reis’s undergraduate transcripts; letters,

affidavits, and “news articles about its operations”; and copies of a brochure discussing Plaintiff’s

“high-tech trading services,” the agency failed to “acknowledge or discuss any of the above articles

or materials it requested in the [Request for Evidence].” Pl.’s Mot. at 28–29 (citing Butte Cty. v.

Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010)). “By failing to review and discuss requested

evidence,” Plaintiff contends, “the agency has failed to consider an essential aspect of the

regulatory requirement. Consequently, the decision is arbitrary and capricious.” Id. (citing State

Farm, 463 U.S. at 43). The court agrees that the agency failed to consider relevant evidence when

it denied the Petition.

        Perhaps the most significant piece of evidence among the supplemental materials that

Plaintiff submitted was the declaration from Ethan Robinson, Plaintiff’s Senior Program Manager.

See CAR at 136–37. The Robinson Declaration provides additional background on Barchart’s

operations, Reis’s job duties, his significance to the company, and, critically, the ways in which

Reis’s finance degree is necessary for his job. Id. It also offers a specific example of one of Reis’s

recent projects and why his financial expertise and his fluency in Portuguese proved important.

Id. at 137. In denying the Petition, the agency faulted Plaintiff for failing to show why Reis’s

position as a Market Analysis Representative required a bachelor’s degree or higher. Id. at 8, 12

(stating that “[w]ithout a detailed job description, the record lacks sufficient evidence to

demonstrate that the proffer position requires a specialty occupation’s level of knowledge in a

specific specialty,” and “that [the] provided duties were described in generalized and abstract terms

that lack sufficient detail to show that the nature of the duties are so specialized and complex” that

they require a bachelor’s degree or higher). Yet, nowhere in reaching this conclusion did the

agency acknowledge the Robinson Declaration, let alone grapple with its substance. In other



                                                  5
words, the agency failed to consider the key piece of evidence—the Robinson Declaration—that

Plaintiff submitted to explain why Reis’s position requires at least a bachelor’s degree. 2 This

omission was arbitrary and capricious. See Butte Cty., 613 F.3d at 194 (“[A]n agency’s refusal to

consider evidence bearing on the issue before it constitutes arbitrary agency action within the

meaning of [5 U.S.C.] § 706.”); Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009) (holding

that an agency rule was arbitrary and capricious when the agency “failed to ‘examine[] the relevant

data and articulate[] a satisfactory explanation for its action’” (alterations in original) (quoting

Fresno Mobile Radio v. FCC, 165 F.3d 965, 168 (D.C. Cir 1999))).

                                                       III.

        Accordingly, the court grants Plaintiff’s Motion for Summary Judgment, ECF No. 9, and

denies Defendant’s Cross-Motion for Summary Judgment, ECF No. 10. The agency’s decision is

vacated and remanded for further proceedings consistent with the court’s ruling. A separate, final

order accompanies this Memorandum Opinion.




Dated: February 19, 2020                                             Amit P. Mehta
                                                              United States District Court Judge




2
 USCIS’s rejection of the Petition focused primarily on a revised position description, which the agency found too
general to establish the need for a bachelor’s degree. See CAR at 10, 12, 139. But considering the revised position
description without the context provided by the Robinson Declaration was inadequate.

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