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 ...
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