                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
IQ SYSTEMS, INC.,                             )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No. 09-890 (RMC)
                                              )
ALEJANDRO MAYORKAS,                           )
Director, U.S. Citizenship and                )
Immigration Services, et al.,                 )
                                              )
               Defendants.1                   )
                                              )


                                  MEMORANDUM OPINION

               IQ Systems, Inc. complains that the U.S. Citizenship and Immigration Service

(“USCIS”), an agency within the Department of Homeland Security, improperly denied its I-140 visa

petition on behalf of intended beneficiary Ravi Kuma Akuthota. USCIS moves to dismiss for lack

of jurisdiction and failure to state a claim. Because USCIS’s denial of the visa petition was based

on a question of law and not on the exercise of discretion, this Court has jurisdiction to review the

denial pursuant to federal question jurisdiction, 28 U.S.C. § 1331, and the Administrative Procedure

Act (“APA”), 5 U.S.C. §§ 701-706. However, because the Complaint fails to state a claim that

USCIS’s decision was arbitrary or capricious, the motion to dismiss will be granted.

                                            I. FACTS

               An alien cannot work in the United States without the appropriate authority from

USCIS. One way for an alien to receive permission to work is for an employer to submit a Form

       1
        Defendants originally included Michael Aytes, Deputy Director of USCIS and F. Gerard
Heinauer, Acting Director of the USCIS Nebraska Service Center. Pursuant to Federal Rule of Civil
Procedure 25(d)(1), the new USCIS Director, Alejandro Mayorkas, is substituted for Mr. Aytes.
ETA-750 Application for Alien Employment with the Department of Labor. The application names

an available alien worker for an open and advertised position and asks the Secretary of Labor to

certify that (1) the employer attempted to recruit U.S. workers in good faith; (2) no U.S. worker is

qualified, able, willing, or available for such employment; and (3) employing the alien worker will

not adversely affect U.S. wages or working conditions. 8 U.S.C. § 1182(a)(5); 20 C.F.R. § 656.10(a)

& (c). If the Secretary grants the labor certification, the Secretary returns the original certified

application to the employer. 20 C.F.R. § 656.24(d). Once an employer has received an approved

original labor certification, the employer may file with USCIS a Form I-140 Immigrant Worker Visa

Petition; the employer must submit the labor certification with the I-140 Petition. 8 C.F.R.

§ 204.5(l)(3)(i); see also 8 U.S.C. § 1153(b)(3)(C) (an immigrant visa may not be issued until the

consular officer receives the labor certification). The I-140 Petition must describe the special

training or talent of the specific alien for whom the application is made and the paucity of available

similar workers in the United States. See 8 U.S.C. §§ 1153(b)(2) & (3); id. § 1154(a)(1)(F); 8 C.F.R.

§ 204.5. Upon approval of an I-140 Petition, the named alien receives a visa which allows him to

work for the named employer. See 8 C.F.R. § 204.5(n).2

               IQ Systems, Inc. (“IQ Systems”) is a computer consulting company that filed an

application for labor certification for the position of Software Engineer, naming as the prospective

alien worker Ravi Kumar Akuthota. The Secretary of Labor certified the position and issued the

labor certification on April 12, 2007. See Compl., Ex. 2 (4/12/07 Labor Certification for Mr.

Akuthota). On May 3, 2007, IQ Systems filed a Form I-140 visa petition on behalf of another



       2
          An alien with an I-140 visa can petition for adjustment of his status to that of permanent
resident, through Form I-485. See 8 U.S.C. § 1255.

                                                 -2-
individual, Ravi Kanth Kotagiri, using the labor certification for Mr. Akuthota in accordance with

then-applicable regulations. Those prior regulations permitted an employer to “substitute,” i.e., to

use an approved labor certification for a different prospective alien worker than the individual named

in the I-140 application. See 20 C.F.R. § 656.30(c)(2) (version effective Mar. 28, 2005 to July 15,

2007). Subsequently, the Secretary of Labor promulgated a new regulation prohibiting the

substitution of aliens in any visa request submitted on July 16, 2007 or thereafter. See 72 Fed. Reg.

27904, 27944 (May 17, 2007) (adding 20 C.F.R. § 656.11).

                On August 15, 2007, IQ Systems filed an I-140 visa petition with USCIS on behalf

of Mr. Akuthota. IQ Systems indicated that it intended to “withdraw the I-140 petition filed in (sic)

behalf of Ravi Kanth Kotagiri3 (substituted alien beneficiary) and respectfully [sought] permission

to reuse this approved labor [certification] in (sic) behalf of the original alien Mr. Akuthota.” See

Compl., Ex. 3 (Aug. 10, 2007 Letter Supporting Visa Petition for Mr. Akuthota). USCIS denied IQ

Systems’ I-140 visa petition, because the petition was filed after July 16, 2007, and a substitution

of the intended alien beneficiary was prohibited. See id., Ex. 1 (Feb. 19, 2009 Decision) at 2. IQ

Systems requested reconsideration. USCIS denied reconsideration, noting that the re-substitution

of the original alien was filed one month after the new regulation prohibiting substitution took effect.

See id., Ex. 5 (Mar. 24, 2009 Decision).

                IQ Systems contends that USCIS’s denial of the I-140 visa petition was arbitrary and

capricious because IQ should have been able to use the original labor certification (for Mr. Akuthota)

in support of the August 2007 I-140 visa petition on behalf of Mr. Akuthota — despite the



        3
       Two years later, USCIS acknowledged the withdrawal of the I-140 petition for Mr. Kotagiri.
See Compl., Ex. 4 (Jan. 21, 2009 Letter).

                                                  -3-
substitution in the interim of Mr. Kotagiri.

                                    II. LEGAL STANDARDS

               A. Motion to Dismiss for Lack of Jurisdiction

               When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of

Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the

benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196,

1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider

materials outside the pleadings. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir.

2005). No action of the parties can confer subject matter jurisdiction on a federal court because

subject matter jurisdiction is a constitutional and statutory requirement. Akinseye v. District of

Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears

the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112,

1115 (D.C. Cir. 2008).

               B. Motion to Dismiss for Failure to State a Claim

               A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges

the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim.

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A complaint must

be sufficient “to give a defendant fair notice of what the . . . claim is and the grounds upon which

it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

Although a complaint does not need detailed factual allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic


                                                 -4-
recitation of the elements of a cause of action will not do.” Id. The facts alleged “must be enough

to raise a right to relief above the speculative level.” Id. Rule 8(a) requires an actual showing and

not just a blanket assertion of a right to relief. Id. at 555 n.3. “[A] complaint needs some

information about the circumstances giving rise to the claims.” Aktieselskabet Af 21. Nov. 2001 v.

Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original).

               In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in

the complaint, documents attached to the complaint as exhibits or incorporated by reference, and

matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d

1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Twombly,

550 U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged, then the claim has facial

plausibility. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id.

                                          III. ANALYSIS

               A. Jurisdiction.

               Defendants argue that this Court lacks jurisdiction to review USCIS’s decision to

deny the visa petition under the jurisdiction-stripping statute, 8 U.S.C. § 1252(a)(2)(B), which

provides:

               [N]o court shall have jurisdiction to review — . . . (ii) any other
               decision or action of the Attorney General or the Secretary of
               Homeland Security the authority for which is specified under this


                                                  -5-
               subchapter4 to be in the discretion of the Attorney General or the
               Secretary of Homeland Security . . . .

8 U.S.C. § 1252(a)(2)(B)(ii). In other words, courts lack jurisdiction to review decisions regarding

visa petitions when the decision was discretionary.

               Even so, courts have jurisdiction to review decisions on visa petitions when the

decision is based on a question of law. Although the D.C. Circuit has yet to decide the question,

other federal courts of appeal have held that § 1252(a)(2)(B) does not strip courts of jurisdiction to

review nondiscretionary decisions regarding visa petitions and adjustment of status petitions. See

e.g., Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005) (§ 1252(a)(2)(B) does not bar

jurisdiction over nondiscretionary legal decisions); see also, e.g., Succar v. Ashcroft, 394 F.3d 8, 19

(1st Cir. 2005) (“Both the Supreme Court and this court have consistently rejected arguments that

Congress has eliminated judicial review of the legal question of interpretation of the statute as to

whether an alien is eligible for consideration of relief.”); Iddir v. INS, 301 F.3d 492, 497 (7th Cir.

2002) (“we find section 1252(a)(2)(B)(i) . . . only bars review of actual discretionary decisions to

grant or deny relief”). Federal courts have jurisdiction to review a “predicate legal question that

amounts to a nondiscretionary determination underlying the denial of relief.” El-Baz Abdelwahab

v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009). Thus, the jurisdiction-stripping statute does not

deprive the Court of jurisdiction to review USCIS’s decision because the visa denial was based on

USCIS’s predicate legal conclusion that the new regulation barred IQ Systems from substituting a

beneficiary. Final agency action such as USCIS’s decision is subject to judicial review under the

APA when there is no other adequate remedy and federal question jurisdiction under 28 U.S.C.


       4
        This “subchapter” includes the discretionary powers of the USCIS set forth in 8 U.S.C.
§§ 1151 through 1155 relating to the issuance and processing of immigrant visa petitions.

                                                 -6-
§ 1331 applies. See Califano v. Sanders, 430 U.S. 99, 107 (1977).

               B. USCIS’s Denial of the I-140 Visa Petition

               The APA provides a cause of action to a “person suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. Review under

the APA is limited to “final agency action”5 for which there is no other adequate remedy in a court.

Id. § 704; Heckler v. Chaney, 470 U.S. 821, 828 (1985) (a person adversely affected by final agency

action is entitled to judicial review so long as no statute precludes review and the action is not

committed to agency discretion by law).

               The APA requires a reviewing court to set aside an agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);

Tourus Records, Inc. v. DEA, 259 F.3d 731, 736 (D.C. Cir. 2001). In making this inquiry, the

reviewing court “must consider whether the [agency’s] decision was based on a consideration of the

relevant factors and whether there has been a clear error of judgment.” Marsh v. Oregon Natural

Res. Council, 490 U.S. 360, 378 (1989) (internal quotation marks omitted). At a minimum, the

agency must have considered relevant data and articulated an explanation establishing a “rational

connection between the facts found and the choice made.” Bowen v. Am. Hosp. Ass’n, 476 U.S. 610,

626 (1986). An agency action may be arbitrary or 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


       5
        A final agency action “(1) marks the consummation of the agency’s decision making
process — it must not be of a merely tentative or interlocutory nature; and (2) the action must be one
by which rights or obligations have been determined or from which legal consequences will flow.”
Domestic Secs., Inc. v. SEC, 333 F.3d. 239, 246 (D.C. Cir. 2003) (internal quotation marks omitted).

                                                 -7-
               be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “[T]he 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.” Id.

               Under prior regulations, an employer submitting an I-140 visa petition for a named

worker was permitted to use an approved labor certification that had been issued for a different

prospective alien worker. See 20 C.F.R. § 656.30(c)(2) (version effective Mar. 28, 2005 to July 15,

2007). Subsequently, a new regulation was promulgated that prohibits the substitution of aliens in

any visa requests submitted after July 16, 2007. See 72 Fed. Reg. 27904, 27944 (May 17, 2007)

(adding 20 C.F.R. § 656.11). The new regulation provides:

               (a) Substitution or change to the identity of an alien beneficiary on
               any application for permanent labor certification, whether filed under
               this part or 20 C.F.R. part 656 in effect prior to March 28, 2005, and
               on any resulting certification, is prohibited for any request to
               substitute submitted after July 16, 2007.

               (b) Requests for modifications to an application will not be accepted
               for applications submitted after July 16, 2007.

20 C.F.R. § 656.11. Further, § 656.30(c)(2) was amended to provide:

               A permanent labor certification involving a specific job offer is valid
               only for the particular job opportunity, the alien named on the
               original application (unless a substitution was approved prior to July
               16, 2007), and the area of intended employment stated on the
               Application for Alien Employment Certification (Form ETA 750) or
               the Application for Permanent Employment Certification (Form ETA
               9089).

20 C.F.R. § 656.30(c)(2) (effective July 16, 2007) (emphasis added).

               IQ System argues that it “withdrew” the I-140 application on behalf of Mr. Kotagiri



                                                 -8-
and reasons that this withdrawal somehow nullified the prior substitution of Mr. Kotagiri and

reinstated Mr. Akuthota with regard to the labor certification. USCIS recognized that IQ Systems

in fact was asking for a second substitution — to have Mr. Akuthota replace Mr. Kotagiri. It denied

the August 2007 I-140 visa petition for Mr. Akuthota because substitutions were no longer permitted

after the new regulations took effect on July 16, 2007. The Secretary considered the relevant data

and articulated an explanation establishing a “rational connection between the facts found and the

choice made.” Bowen, 476 U.S. at 626. Accordingly, even accepting the facts alleged in the

Complaint and its exhibits as true, see Abhe, 508 F.3d at 1059, the visa petition denial was not

arbitrary, capricious, or otherwise in violation of the law.

                                       IV. CONCLUSION

               For the reasons stated above, Defendants’ motion to dismiss [Dkt. # 5] will be

granted and this case will be dismissed. A memorializing Order accompanies this Memorandum

Opinion.




Date: November 4, 2009                                        /s/
                                               ROSEMARY M. COLLYER
                                               United States District Judge




                                                 -9-
