United States District Court, N.D. Illinois, Eastern Division
NATIONAL BASKETBALL RETIRED PLAYERS ASSOCIATION, an Illinois corporation, and MARIAM KURDADZE, an individual, Plaintiffs,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge.
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.
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)).
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.
specifically, as the USCIS notes in its own briefs with this
Court,  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 §
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),
https://www.uscis.gov/news/uscis-will-accept-h-1b-petitions-fiscal-year-2016-beginning-april-1-2015. 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.
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
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.
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
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.
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 ...