UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KAVITHA THATIKONDA, Plaintiff, v. Case No. 1:21-cv-1564-RCL U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. MEMORANDUM OPINION Plaintiff Kavitha Thatikonda is a citizen and resident of India who previously lived and worked in the United States pursuant to a nonimmigrant program for workers in "specialty occupations." She sued defendants-various government entities responsible for administering federal immigration laws-after a State Department consular officer denied her visa pursuant to a U.S. Citizenship and Immigration Services ("USCIS") finding that she was inadmissible. See Compl., ECF No. 1. Defendants moved to dismiss, Defs.' Mot. to Dismiss ("Defs.' Mot."), ECF No. 14, Thatikonda filed an opposition, Pl.'s Opp'n, ECF No. 15, and defendants filed a reply in support of their motion, Defs.' Reply, ECF No. 18. Thatikonda then moved, over objection, to file a sur-reply. See ECF Nos. 19 & 19-1. Upon consideration of the parties' filings, ECF Nos. 14, 15, 18, 19, and 19-1, applicable law, and the entire record herein, the Court will hereby GRANT defendants' motion to dismiss by separate order. 1 I. BACKGROUND A. Statutory and Regulatory Framework The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., distinguishes between two categories of foreign nationals seeking admission to the United States: "nonimmigrants," who plan to stay in the country only temporarily, and "immigrants," who plan to stay permanently. Save Jobs USA v. Dep't of Homeland Sec., 942 F.3d 504, 506 (D.C. Cir. 2019). The INA specifically authorizes the admission of nonimmigrants to work in "specialty occupation[s]," 8 U.S.C. § 1101(a)(15)(H)(i)(b), defined as those requiring "theoretical and practical application of a body of highly specialized knowledge, and ... attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States," id. § 1184(i)(l). "Specialty workers admitted under this provision receive H-1B visas, which permit them to work in the occupation for which they were admitted." Save Jobs USA, 942 F.3d at 506. Employers interested in participating in the H-1B program must complete a two-step process for each foreign worker they seek to hire. First, they submit a Labor Condition Application ("LCA") to the Department of Labor identifying the specialty occupation position at issue and confirming that they will comply with the program's requirements. 8 U.S.C. § 1182(n)(l). After the Department of Labor certifies the LCA, the employer may file the LCA and a nonimmigrant temporary worker petition (known as a Form 1-129) on behalf of a prospective foreign employee. Id. § l 184(c); see 8 C.F.R. § 214.2(h)(4). Petitions are considered by USCIS, which is part of the Department of Homeland Security ("DHS"). Sagarwa/a v. Cissna, 387 F. Supp. 3d 56, 60 (D.D.C. 2019). An alien may not be admitted to the United States without having been issued an immigrant or nonimmigrant visa. 8 U.S.C. §§ 1181(a), 1182(a)(7). Once an H-1B petition is granted, an 2 alien can apply for a visa at a U.S. Consulate or …
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