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National Basketball Retired Players Association v. United States Citizenship and Immigration Services

United States District Court, N.D. Illinois, Eastern Division

June 20, 2017

NATIONAL BASKETBALL RETIRED PLAYERS ASSOCIATION, an Illinois corporation, and MARIAM KURDADZE, an individual, Plaintiffs,


          John J. Tharp, Jr. United States District Judge.

         The National Basketball Retired Players Association (“NBRPA”) and its prospective employee, Mariam Kurdadze, bring this suit to challenge the U.S. Citizenship and Immigration Services' (“USCIS”) June 29, 2016 rejection of the H-1B visa petition that the NBRPA filed on Kurdadze's behalf. The NBRPA has moved for a preliminary injunction, an evidentiary hearing, and summary judgment. The USCIS has opposed those motions, and filed its own motion to dismiss the case for lack of subject-matter jurisdiction and for failure to state a claim. The motion to dismiss is granted, and the case is dismissed with prejudice. The remaining pending motions are denied as moot.


         The USCIS lodged its motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This Court therefore takes as true all well-pleaded facts alleged in the complaint and draws all reasonable inferences in favor of the NBRPA and Kurdadze, the non- moving parties. See Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003) (Rule 12(b)(1); Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2012) (Rule 12(b)(6)).

         The NBRPA is a non-profit organization with the stated mission of assisting former players from the National Basketball Association, the Women's National Basketball Association, and the Harlem Globetrotters “in their transition from playing court into life after the game, while also positively impacting communities and youth through basketball.” Am. Compl. ¶ 2, ECF No. 2. Kurdadze, meanwhile, is a citizen and national of the country of Georgia. Id. ¶ 3. She is a recent graduate of Tulane University, where she received a Master's degree in Business Administration. See April Pet., ECF No. 2-1. The NBRPA filed the visa petition at the center of this lawsuit on April 6, 2016, asking the USCIS to classify her as an H-1B nonimmigrant so that the NBRPA could employ her as an Operations and Special Projects Coordinator. Id. ¶ 12. The H-1B program is a means of securing lawful immigration status for noncitizens of the United States who come to the country temporarily to perform services “in a specialty occupation” and who meet certain requirements. Id. ¶ 7 (citing U.S.C. § 1101(a)(15)(H)(i)(B)). By statute, the number of petitions that the USCIS may approve is capped for each fiscal year. Id. ¶ 8.

         More specifically, as the USCIS notes in its own briefs with this Court, [1] Congress has limited the number of people who may be issued H-1B visas or otherwise granted H-1B status to no more than 65, 000 for each fiscal year since fiscal year 2003. See 8 U.S.C. § 1184(g)(1)(A)(vii); see also Def.'s Opp'n to Prelim. Inj. at 3. The government may issue H-1B status to an additional 20, 000 people per fiscal year who have earned postgraduate degrees from United States universities (the “Masters cap”). See 8 U.S.C. § 1184(g)(5)(C). Further, these numerical limits do not apply to employees of certain nonprofit, governmental, or educational research institutions or entities. Id. at § 1184(g)(5)(A)-(B). As a recent Master's graduate of an American university, Kurdadze was eligible for consideration under both the Master's and regular visa caps, but the NBRPA does not qualify for the cap-exemption for government- and university-affiliated non-profit organizations. See 8 U.S.C. § 1184(g)(5)(A)-(C); see also Rubman v. U.S. Citizenship & Immigration Servs., 800 F.3d 381, 384 (7th Cir. 2015). The 2016 fiscal year for the federal government ran from October 1, 2015 to September 30, 2016, and the 2017 fiscal year began on October 1, 2016 and will end on September 30, 2017. See Fiscal year, U.S. Senate Glossary, (“The fiscal year is the accounting period for the federal government which begins on October 1 and ends on September 30.”). The USCIS will reject petitions that are not validly signed, executed, submitted with the correct fees, and filed “in compliance with the regulations governing the filing of the specific application, petition, form or request.” 8 C.F.R. § 103.2(a)(7)(ii). A rejected petition does not retain its filing date and may not be appealed within the agency. Id. at § 103.2(a)(7)(ii)-(iii).

         Employers seeking to secure H-1B status for a nonimmigrant prospective employee must submit a Labor Condition Application (“LCA”) to the U.S. Department of Labor (“DOL”) that includes information about the employee's wages, and federal regulations also require that the LCA list the starting and ending dates of employment. See 8 U.S.C. § 1182(n)(1); 20 C.F.R. § 655.730(a), (c)(4). If the DOL certifies the LCA, the employer's next step is to submit that certified document to the USCIS in support of the employer's Petition for a Nonimmigrant Worker, known as a Form I-129. See 20 C.F.R. § 655.730(c)(3); 8 C.F.R. § 214.2(h)(4)(iii)(B)(1)-(2). In accordance with federal regulations, the USCIS administers the H-1B program by projecting “how many petitions it must process to issue a full complement of visas, taking into account historical rates of denials, withdrawals, and revocations.” Rubman, 800 F.3d at 384; see also 8 C.F.R. § 214.2(h)(8)(ii)(B). Employers may not file the I-129 petition more than six months before the requested employment start date, see 8 C.F.R. § 214.2(h)(9)(i)(B), and the USCIS began accepting H-1B petitions for fiscal years 2016 and 2017 on April 1, six months before the start of those fiscal years. See Ex. B to Def.'s Opp'n to Prelim. Inj. at 4; USCIS Will Accept H-1B Petitions for Fiscal Year 2016 Beginning April 1, 2015, U.S. Citizenship and Immigration Services (Mar. 12, 2015),[2] The USCIS closes the filing period once it receives its calculated target number of petitions, and if that closing date is within the first five business days on which filings can be made, the agency will conduct a lottery. See 8 C.F.R. § 214.2(h)(8)(ii)(B). Petitions selected in the lottery are each assigned a receipt number, and the remaining petitions are rejected and returned with their filing fees. Id.; see also Rubman, 800 F.3d at 384. The USCIS then processes the petitions with receipt numbers and awards visas to those who qualify, up to the cap limit. Rubman, 800 F.3d at 384.

         The petition at the center of this lawsuit was actually the NBRPA's fourth attempt at securing H-1B visa status for Kurdadze. The USCIS has rejected petitions from the NBRPA on Kurdadze's behalf a total of five times, though in the current suit the plaintiffs are only challenging the agency's rejection of its April 6, 2016 submission. Id. ¶¶ 1, 14-15. In that Form I-129 petition, the NBRPA requested that Kurdadze's lawful nonimmigrant status in the United States be changed from F-1, which covers foreign students, to H-1B. Id. ¶ 13; April Pet.; see also 8 U.S.C. § 1101(a)(15). The Form I-129 petition listed Kurdadze's dates of intended employment as running from “10/1/2016” to “06/01/2019, ” but the LCA that the NBRPA submitted with the petition, as required, listed her period of intended employment as beginning “06/01/2016” and ending “06/01/2019.” April Pet. at 5; April LCA at 1, ECF No. 2-1. The USCIS rejected the petition in a notice dated June 29, 2016, which read:

All H-1B cap-subject petitions received at the California or Vermont Service Centers from April 1, 2016 to April 7, 2016 were subject to a computer-generated random selection process. USCIS received your cap-subject H-1B petition during this filing period and reviewed it to determine if it was properly filed. USCIS does not consider the petition to be properly filed for the reason(s) noted below. Therefore, USCIS has rejected the petition and is returning it to you. Please do not resubmit this petition as the H-1B cap for FY17 closed on April 7, 2106.
Your Form I-129 petition subject to FY 17 cap has an employment date earlier than 10/01/2016.

Am. Compl. ¶ 16; June Rejection Notice, ECF No. 2-2. The plaintiffs allege, on information and belief, that there are individuals who were subject to the numerical caps set out in § 1184(g) and who submitted their petitions to USCIS after the NBRPA did for Kurdadze, and who were still issued H-1B visas or otherwise provided nonimmigrant H-1B status. Am. Compl. ¶ 19.

         Following this rejection, the NBRPA filed another petition on August 19, 2016 with some additional documentation. Am. Compl. ¶ 20; August Pet., ECF No. 2-3. In that filing, the NBRPA asserted that the agency's rejection of the prior petition was improper because that April 2016 Form I-129 clearly listed October 1, 2016 as Kurdadze's employment start date. Am. Compl. ¶ 21. The NBRPA also told the agency that even if the petition's listed start date had been prior to October 1, 2016, the petition was still approvable as long as some part of the requested work period was on or after October 1, 2016. Id. ¶ 22. The USCIS rejected this fifth petition as well on August 23, 2106, saying that this petition also had an employment date earlier than 10/01/2016 and again asking the NBRPA not to resubmit the petition “as the H-1B cap for FY17 closed on April 7, 2016.” Id. ¶ 24; August Rejection Notice, ECF No. 2-5. The NBRPA does not in this suit challenge the USCIS rejection of the August 19, 2016 petition.

         The plaintiffs launched this lawsuit on October 3, 2016, invoking the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., as well as the mandamus provision codified at 28 U.S.C. § 1361. In Count I of their Amended Complaint, they seek a ruling holding the NBRPA's rejection of the April 2016 petition unlawful and setting it aside on the grounds that it was not in accordance with the USCIS's own regulations and was therefore “arbitrary and capricious.” Am. Compl. ¶¶ 1, 25-30. In Count II, the plaintiffs assert that the agency's rejection was “premised upon legal error” in that “there is no law that prevents USCIS from approving a petition requesting a starting employment date prior to 10/01/2016 effective upon 10/01/2016.” Id. at 8. Finally, in Count III, the NBRPA and Kardadze allege that the agency's rejection of the petition “was unsupported by substantial evidence” and thus was “arbitrary and capricious.” Id. at 9-10. The plaintiffs want this Court to order the USCIS “to fulfill its duty” under the Immigrant and Nationality Act, 8 U.S.C. § 1154(g)(3), to consider Kardadze “for H-1B nonimmigrant status exactly as if NBRPA's petition had not been rejected, and in the order in which H-1B petitions for such visas or status were filed for Fiscal Year 2017.” Id. ¶ 1.

         Notwithstanding the fact that USCIS had stopped accepting fiscal year 2017 H-1B applications on April 7, 2016, and that fiscal year 2017 was underway when they filed their complaint, the plaintiffs did not seek a temporary restraining order or any other emergency relief with their filing. Instead, more than a month later they filed a motion for a preliminary injunction allowing Kurdadze to remain in the United States with employment authorization while the suit was pending. See Mot. for Prelim. Inj., ECF Nos. 4, 5. Ten days after presentment of their motion, and before the government had even responded, the plaintiffs filed a motion for summary judgment. After the USCIS moved to dismiss the case in December 2016 in lieu of answering the complaint, the plaintiffs-despite having moved previously for summary judgment and having agreed that no discovery was required to address their preliminary injunction ...

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