FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT INNOVA SOLUTIONS, INC., No. 19-16849 Plaintiff-Appellant, D.C. No. v. 5:17-cv-03674- VKD KATHY A. BARAN, Director of California Service Center, U.S. Citizenship and Immigration OPINION Services, Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Virginia K. DeMarchi, Magistrate Judge, Presiding Argued and Submitted November 20, 2020 Pasadena, California Filed December 16, 2020 Before: Richard A. Paez and John B. Owens, Circuit Judges, and Morrison C. England, Jr., * Senior District Judge. Opinion by Judge Owens * The Honorable Morrison C. England, Jr., United States Senior District Judge for the Eastern District of California, sitting by designation. 2 INNOVA SOLUTIONS V. BARAN SUMMARY ** Immigration The panel reversed the district court’s grant of summary judgment for the U.S. Citizenship and Immigration Services (USCIS), and remanded, concluding that USCIS’s denial of an H-1B temporary worker visa was arbitrary and capricious. Innova Solutions, Inc. (Innova) wanted to hire a citizen of India with a bachelor’s degree as a computer programmer and petitioned for an H-1B “specialty occupation” visa on his behalf. Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, USCIS concluded that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.” The panel concluded that USCIS’s denial of the H-1B visa petition was arbitrary and capricious. First, the panel explained that there is no daylight between typically needed, per the OOH, and normally required, per the regulation, and that USCIS’s suggestion that there is “space” between these ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. INNOVA SOLUTIONS V. BARAN 3 words is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The panel also explained that the regulation is not ambiguous and deference to such an implausible interpretation is unwarranted. Next, the panel concluded that USCIS’s decision was arbitrary and capricious because it misrepresented the OOH by stating that it provides that most computer programmers have a bachelor’s or associate’s degree when, in fact, the OOH provides that most have a bachelor’s degree. Finally, the panel concluded that USCIS’s decision was arbitrary and capricious because USCIS failed to consider key evidence, namely, the OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education that most workers need to enter this occupation.” COUNSEL David A. Wulkan (argued), Jonathan R. Sturman, and David M. Sturman, Law Office of David M. Sturman A.P.C., Encino, California, for Plaintiff-Appellant. Elizabeth D. Kurlan (argued), Assistant ...
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