UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SEE, INC., et al., Plaintiffs, v. Civil Action No. 20-2984 (RDM) MARTY WALSH, et al., Defendants. MEMORANDUM OPINION This case poses the question whether it is enough to be right on the merits of an administrative action, even if wrong on the process. Plaintiffs See, Inc. (“See”) and Nimitt Nishith Bhatt bring this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., seeking to set aside the Department of Labor’s denial of See’s application for a “permanent employment certification” on Bhatt’s behalf. A Certifying Officer denied See’s application on the ground that Bhatt’s skills described in the employment experience portion of the application did not match the skills listed in the minimum job requirements portion of the application. See requested reconsideration of the Certifying Officer’s decision and, in support of that request, submitted two letters from Bhatt’s former employers, which represented that Bhatt did, in fact, possess the skills that the Certifying Officer identified as missing from the description of Bhatt’s employment experience contained in the application. The Certifying Officer denied See’s request for reconsideration, explaining that, although the letters showed that Bhatt possessed the required skills, Department of Labor regulations “allow labor certification to be granted solely on the basis of the information” contained in the application. Dkt. 18 at 27; see also 20 C.F.R. §§ 656.11(b) & 656.24(g)(2). The Board of Alien Labor Certification Appeals (“Board”) affirmed. Plaintiffs ask this Court to set aside the Board’s decision pursuant to the APA. Plaintiffs allege that because the Certifying Officer acknowledged that the letters showed that Bhatt had the requisite experience and because the Board accepted that premise, the Board’s decision was arbitrary and capricious and unsupported by substantial evidence. Dkt. 6 (Am. Compl. ¶¶ 36– 41). In other words, Plaintiffs contend that because Bhatt’s qualifications are, in essence, uncontested, the Certifying Officer and the Board had only one choice; they were required to grant the application. Defendants disagree, arguing that See failed to comply with the regulatory requirements for completing the application, and thus the Board properly upheld the Certifying Officer’s rejection of See’s request for reconsideration. The parties’ cross-motions for summary judgment are now pending before the Court. For the following reasons, the Court concludes that the Board lawfully determined that See’s process failure required rejection of its application, even if, as a matter of substance, See was able to show on reconsideration that Bhatt had the necessary qualification. The Court, accordingly, will GRANT the Defendants’ motion, Dkt. 13, and will DENY Plaintiffs’ motion, Dkt. 12. I. BACKGROUND A. Statutory and Regulatory Background Pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., a U.S. employer seeking permanently to employ a noncitizen may apply for an employment-based immigration visa on the noncitizen’s behalf. For certain categories of employment-based immigrants, including the category of “skilled workers” at issue in this case, see 8 U.S.C. § 1153(b)(3), the first step in the visa …
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