Sunlift International, Inc. v. Wolf

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

SUNLIFT INTERNATIONAL, INC.,

7 Case No. 20-cv-08869-JCS

Plaintiff,

8 ORDER DENYING PLAINTIFF’S

v. MOTION FOR SUMMARY

9 JUDGMENT, GRANTING

ALEJANDRO MAYORKAS, et al., DEFENDANTS’ MOTION FOR

10 SUMMARY JUDGMENT AND

Defendants. AFFIRMING DENIAL OF PETITION

11

Re: Dkt. Nos. 17, 18

12

13 I. INTRODUCTION

14 On August 10, 2020, U.S. Citizenship and Immigration Services (“USCIS”) denied a Form

15 I-140, Immigrant Petition for Alien Worker (“Petition”) filed by Plaintiff Sunlift International, Inc.

16 (“Sunlift”) on behalf of Mr. Ping Zhou (“Beneficiary”). Sunlift contends the denial was arbitrary

17 and capricious and contrary to law and brings this action seeking to overturn the denial, while

18 USCIS asks the Court to uphold the denial. Presently before the Court is Plaintiff’s Motion for

19 Summary Judgment (“Plaintiff’s Motion”) and Defendants’ cross-motion for summary judgment

20 (“Defendants’ Motion”). The Court finds that the motions are suitable for determination without

21 oral argument. For the reasons stated below, Plaintiff’s Motion is DENIED and Defendants’

22 Motion is GRANTED.1

23 II. BACKGROUND

24 A. Statutory and Regulatory Framework

25 Under the Immigration and Nationality Act (“INA”), a limited number of employment-

26 based, first preference visas are made available to “certain multinational executives and

27

1 managers.” INA § 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C). Such visas are referred to as EB-1C

2 visas. In order to be eligible for an EB-1C visa, an individual must in the three years preceding

3 the application have “been employed for at least 1 year by a firm or corporation or other legal

4 entity or an affiliate or subsidiary thereof and . . . seek[ ] to enter the United States in order to

5 continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity

6 that is managerial or executive.” Id. The main issue in this case is whether the Beneficiary meets

7 the requirements of this provision based on his employment by Sunlift in a “managerial capacity.”

8 The term “managerial capacity” is statutorily defined as follows:

9 (44)(A) The term “managerial capacity” means an assignment within

an organization in which the employee primarily—

10

(i) manages the organization, or a department, subdivision,

11 function, or component of the organization;

12 (ii) supervises and controls the work of other supervisory,

professional, or managerial employees, or manages an

13 essential function within the organization, or a department or

subdivision of the organization;

14

15 (iii) if another employee or other employees are directly

supervised, has the authority to hire and fire or recommend

16 those as well as other personnel actions (such as promotion

and leave authorization) or, if no other employee is directly

17 supervised, functions at a senior level within the

organizational hierarchy or with respect to the function

18 managed; and

19 (iv) exercises discretion over the day-to-day operations of the

activity or function for which the employee has authority.

20

21 INA § 101(a)(44)(A), 8 U.S.C. § 1101(a)(44)(A); see also 8 C.F.R. § 204.5(j)(2). A beneficiary

22 who is found to be employed in a managerial capacity under subsection (i) based on management

23 of a “function . . . of the organization[,]” is referred to as a “function manager.” In this case,

24 Sunlift contends Mr. Zhou is eligible for an EB-1C visa on the basis that he is a function manager.

25 In a decision by the Office of Administrative Appeals (“AAO”) adopted as USCIS policy

26 guidance, the AAO set forth the following required elements for demonstrating that a beneficiary

27 is a function manager:

defined activity; (2) the function is “essential,” i.e., core to the

1 organization; (3) the beneficiary will primarily manage, as opposed

to perform, the function; (4) the beneficiary will act at a senior level

2 within the organizational hierarchy or with respect to the function

managed; and (5) the beneficiary will exercise discretion over the

3 function’s day-to-day operations.

4 Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). The policy guidance explains

5 further, “Whether the function is sufficiently related to an organization’s core activity or activities

6 is inherently one of degree, and therefore, all relevant facts should be considered in making this

7 determination.” Id.

8 A U.S. employer seeking permanent employment for a foreign national under an EB-1C

9 visa must file an I-140 petition. See 8 C.F.R. § 204.5(j)(1). The petitioner has the burden to

10 demonstrate eligibility for EB-1C classification by a preponderance of the evidence. INA § 291,

11 8 U.S.C. § 1361; Matter of Chawathe, 25 I. & N. Dec. 369, 375-376 (2010) (“Except where a

12 different standard is specified by law, a petitioner or applicant in administrative immigration

13 proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit

14 sought.”). If the visa petition is approved and the statutory number of such visas for the year have

15 not been used, beneficiaries of the petition can apply to adjust status if they are in the United

16 States or seek an immigrant visa from a U.S. consulate if they are outside the country. See INA §§

17 221, 245(a), 8 U.S.C. §§ 1201, 1255(a).

18 B. Factual Background and Administrative Proceedings

19 Sunlift is a California corporation, organized under the laws of the State of California on

20 November 18, 2013. Certified Administrative Record (“CAR”), pp. 435-36. Sunlift is “engaged

21 in construction and development work in Northern California.” CAR, p. 426. It is a wholly-

22 owned subsidiary of a Chinese company, Shenzhen Shenglin Electrical Engineering Co., Ltd.

23 (“Shenzhen Shenglin”). CAR, pp. 389-91, 447-48. Shenzhen Shenglin is “a business entity

24 primarily engaged in the manufacturing and sales of electrical and mechanical equipment,

25 installation and maintenance of hydroelectric and electrical equipment, and construction of

26 electrical transformation and distribution systems.” CAR, p. 421.

27 Beneficiary Ping Zhou is a citizen of China who began working for Shenzhen Shenglin as

1 decided to transfer Mr. Zhou to the United States to serve as president of Sunlift. CAR, p. 604.

2 Mr. Zhou came to the United States on an L-1A multinational executive or manager nonimmigrant

3 visa with an initial term of one year (February 5, 2014 – February 24, 2015). CAR, p. 432.

4 USCIS subsequently granted extensions through April 2018 and then an additional two-year

5 extension through April 2020. CAR, p. 430; Plaintiff’s Motion at 2.

6 According to Mr. Zhou, Sunlift “began its business operation in stone retail and countertop

7 fabrication.” CAR, p. 26. Mr. Zhou, as president of Sunlift, decided in the Fall of 2014 to acquire

8 a company called B&B Marble, Inc. Id.; see also CAR, pp. 649-683 (documents reflecting

9 acquisition of B&B Marble, executed by Mr. Zhou for Sunlift). According to Mr. Zhou, “as the

10 industry became highly competitive, and Sunlift began to incur a financial loss, he . . . made the

11 strategic decision to re-direct Sunlift’s business towards home remodeling projects.” CAR, p. 26.

12 In 2016, “Sunlift’s remodeling projects continued to increase, and replaced stone fabrication as its

13 main source of business income.” Id. According to Mr. Zhou, in response to this growth he

14 “created new business units and hired employees with relevant experience to manage those

15 business operations.” Id. Sunlift continued to move towards “higher valued rebuilding and

16 construction projects” and in 2017 it completed “the first house construction project.” Id. Mr.

17 Zhou states that he decided to close the showroom and warehouse for the stone fabrication side of

18 the business that year and Sunlift began to turn a profit by the end of the year. Id. In 2018, Mr.

19 Zhou “secured several residential home building projects for Sunlift, and the company generated

20 over one million dollars in gross revenue for the first time.” Id.

21 On March 30, 2018, USCIS received a Form I-140, Immigrant Petition for Alien Worker,

22 from Sunlift on behalf of Mr. Zhou. CAR, pp. 415-16. In support of the Petition, Sunlift

23 submitted a letter from counsel describing Mr. Zhou’s responsibilities and duties as follows:

24 • Planned, formulated and established company's primary goals,

general operating plans and policies (Mr. ZHOU spent 30% of his

25 time on this function);

26 o Developed long-term and short-term goals for marketing,

engineering, business development, customer service and all

27 other business matters affecting the company;

programs, procedures and methods in concert with general

1 policies;

2

o Directed and coordinated operational activities with the help of

3 subordinate managers, exercising the wide latitude of

discretionary decision making (Mr. ZHOU spent 30% of his

4 time on this function);

5

o Presided over executive meetings and general and special

6 meetings;

7

o Implemented general policies established by the company,

8 directing their administration and execution;

9

o Monitored the quality of the company's products and services

10 and ensuring maximum user satisfaction;

11

o Approved on negotiation and signing major trade and

12 purchasing contracts;

13

o Decided on the research findings of the national and

14 international market and identifying business opportunities;

15

o Recruited, terminated, evaluated and promoted the managerial

16 personnel based on their job performance, qualification and

contribution;

17

18 o Oversaw the company’s financing, developing, marketing,

producing and other administrative executing issues (Mr.

19 ZHOU spent 20% of his time on this function);

20

o Reviewed comprehensive annual business objectives and

21 agendas and overseeing the implementation process;

22

o Developed and implemented financial/investment strategy;

23

24 o Managed financial performance and budgets;

25

o Ensured all operations and activities are conducted in

26 accordance with the mission and values, sound business

practices and policies and practices;

27

ZHOU spent 20% of his time on this function);

1

2 o Maintained and developed the relationship between the

company and its members, guests, employees, community,

3 government and industry;

4

o Participated in outside activities to enhance the prestige of the

5 company;

6

o Broadened the scope of the company’s operation by fulfilling

7 the public obligations of the company as a member of the

community;

8

9 o Built senior commercial relationships with key commercial

contacts and potential partners/sponsors; and

10

11 o Attended major industrial conferences and meetings.

12 CAR, pp. 424-425. In addition, supporting documentation was attached to the Petition, including:

13 1) a commercial lease executed by Mr. Zhou, CAR, pp. 617-39; 2) the paperwork regarding the

14 acquisition of B&B Marble, executed by Mr. Zhou, CAR, pp. 649-83; and 3) bids/estimates for

15 four jobs prepared by Mr. Zhou, CAR, pp. 695-720.

16 On January 1, 2019, USCIS issued a Request For Evidence (“RFE”) seeking further

17 supporting documentation regarding a number of the requirements of the visa classification,

18 including evidence that Mr. Zhou would be employed in a “primarily managerial or executive

19 capacity.” CAR, pp. 403, 405. The RFE stated that the Petition did “not establish that the

20 beneficiary’s position with [Sunlift] [was] in a qualifying executive or managerial role” because

21 the “position description was provided by counsel and not by the petitioner.” CAR, p. 405. It

22 stated further:

the job description provided by counsel of the offered position

23 includes job duties which are given in broad categories and do not

provide much insight into the actual job duties performed. More

24 clarity in detail is necessary. It is not clear what the day-to-day tasks

will be. For example, counsel states that the beneficiary is tasked with

25 “Setting the subsidiary company’s short and long term goals,

objectives, policies and business strategies in business development,

26 marketing and fiscal matters” but did not describe how the beneficiary

performs this duty. The description of the beneficiary’s duties must

27 be more detailed to establish the actual role of the beneficiary with

chart or a brief description of the duties of the beneficiary’s direct

1 reports, if any. The evidence does not clearly show how the

petitioner’s staff functions to relieve the beneficiary from performing

2 non qualifying tasks and is not sufficient to establish that the

beneficiary’s position is in a qualifying role. Please submit

3 documentary evidence to establish that the beneficiary’s position with

the petitioner is in a primarily managerial or executive capacity.

4

5 CAR, p. 405. Evidence listed in the RFE that might establish that Mr. Zhou’s position was

6 “managerial” included “[a]n explanation of the specific daily tasks that are involved with the

7 completion of each of the beneficiary’s proposed duties and the percentage of time to be spent on

8 each.” CAR, p. 406. The RFE also sought a statement from an authorized Sunlift official “clearly

9 describing [Mr. Zhou’s] proposed job duties[,]” and, if applicable, more detailed information

10 showing that Mr. Zhou was a “functional manager.” CAR, p. 406.

11 On March 29, 2019, Sunlift submitted a letter from Mr. Zhou, as Sunlift’s president,

12 responding to the RFE (“RFE response letter”). CAR, pp. 101-123. In the section of the letter

13 addressing Mr. Zhou’s “managerial position,” he provided a list of employees under his

14 supervision and their job duties, both at Sunlift and at Shenzhen Shenglin, to show that his job did

15 not involve “non-qualifying duties,” but rather, that those duties were performed by subordinates.

16 CAR, pp. 106-14, 116-21. The letter explained that Sunlift had “an average of 10-12 employees”

17 and that the variation was due to the high turnover in the construction industry. CAR, p. 104.

18 In the RFE response letter, Mr. Zhou also described his own job duties at both Shenzhen

19 Shenglin and Sunlift. CAR, pp. 114-15, 121-22. He described his job responsibilities at Sunlift as

20 follows:

• Formulate corporate polices and business strategies (Mr.

21 ZHOU spends 20% of his time on this function);

22 o Plan, formulate and establish company’s primary goals,

general operating plans and policies of the overall direction of

23 company;

24 o Coordinating with parent company in execution of the

subsidiary company’s policies and business strategies;

25

• Manage and direct company’s operation (Mr. ZHOU spends

26 40% his time on this function)

27 o Direct and coordinate operational activities at the highest

contracts with major customers, directing market research and

1 analysis, and reviewing and approving major expenses, etc.;

2 o Plan and control the company’s financial activities,

including but not limited to reviewing and analyzing

3 financial reports, overseeing financial policies and

procedures, and adjusting financial goals, etc.;

4

• Take overall responsibility for the human resource functions

5 (Mr. ZHOU spends 30% of his time on this function);

6 o Formulate and develop policies and programs in the areas

of recruitment, compensation and benefits, training, labor

7 relations and performance management;

8 o Manage and coordinate the new hire process for managers

and executives;

9

o Set up performance review standards, conduct performance

10 assessments on subordinate employees;

11 o Direct overall personnel administration on managers of all

departments and other staff, regarding their appointments,

12 promotions, transfers, demotions, suspensions, layoffs, and

dismissals;

13

• Promote strategic alliance and public relationship, including

14 maintaining and developing relationships between the

company and clients, government agencies, financial

15 agencies, and industry, participating in outside activities on

behalf of the company to enhance the prestige of the

16 company, building senior commercial relationship with key

commercial contacts and potential partners/sponsors, etc. (Mr.

17 ZHOU spends 10% of his time on this function).

18 CAR, pp. 114-115. A number of exhibits were attached to the March 29, 2019 RFE response,

19 including Mr. Zhou’s resume, CAR pp. 176-78; a “current” organizational chart for Sunlift, CAR,

20 p. 180; a “previous” organizational chart for Sunlift, CAR, pp. 101, 225; additional bids/estimates

21 for two jobs prepared by an employee, CAR, pp. 187-204; and an updated lease, CAR, pp. 233-90.

22 On May 14, 2019, the Director of the USCIS’s Nebraska Service Center (“Director”)

23 denied Plaintiff’s Petition. CAR, pp. 85-89. The Director stated that while “[t]he record indicates

24 that it is more likely than not that the beneficiary’s previous position abroad was in a qualifying

25 role . . . [it] does not establish that the beneficiary’s position with the petitioner is in a qualifying

26 executive or managerial role.” CAR, p. 87. The Director pointed to differences between the job

27 description in the original Petition and the one in the later letter from Mr. Zhou in response to the

1 in response to the RFE, which the Director found cast doubt on the “reliability and sufficiency of

2 the remaining evidence offered in support of the visa petition.” CAR, p. 88. The letter further

3 stated:

The vague and generalized description of the beneficiary’s position is

4 of limited evidentiary value and are not persuasive on the issue of

whether the beneficiary is employed in a qualifying role. The list of

5 job duties which are primarily based on broad tasks, which suggest a

general sense of the beneficiary’s heightened degree of discretionary

6 authority but fail to convey an understanding of what the beneficiary

would actually be doing on a daily basis. Other evidence submitted

7 by the petitioner casts further doubt on the nature of the beneficiary’s

duties. . . . The contradictory structures presented for this organization

8 as well as the overall size of the organization indicates that the

beneficiary may be performing non qualifying tasks.

9

10 CAR, pp. 88-89.

11 On June 14, 2019, Sunlift appealed the denial of the Petition by the Director. CAR, pp. 64-

12 74. On July 25, 2019, Sunlift submitted an appellate brief, a letter by Mr. Zhou in response to the

13 denial (“denial response letter”) and additional evidence. CAR, pp. 8-61. In the appellate brief,

14 Sunlift’s counsel highlights Mr. Zhou’s description in his denial response letter of how he led

15 Sunlift from being “a company that lost money to a profitable one,” starting with only one

16 employee in 2014 and growing to a company with “a staff of over a dozen.” CAR, pp. 8-9.

17 According to Sunlift, “[i]n the course of these business changes, [Mr. Zhou’s] job description also

18 had to be adjusted, which explains why there were modifications to his job description at the time

19 of the RFE response.” CAR, p. 9.

20 According to Sunlift, Mr. Zhou’s denial response letter also “explains that the

21 Beneficiary’s position is that of a senior manager, and specifically, a manager of Sunlift’s

22 Business Development function.” CAR, p. 9. It states:

23 [Mr. Zhou’s denial response letter] also explains that the Business

Development activities of Sunlift extend across different business

24 units, including sales, marketing, project management, product

management, and vendor management. Networking, negotiations,

25 partnerships, and cost-savings efforts are also involved. All of these

different departments and activities are driven by and aligned to the

26 business development goals. The Beneficiary has served as the most

senior manager of this function.

27 . . .

response letter], it is ‘unquestionable that the Business Development

1 function managed by [Mr. Zhou] is a clearly defined activity, as it

involves the development and implementation of growth

2 opportunities within Sunlift, and between Sunlift and external

organizations such as its customers. Business Development is often a

3 stand-alone department in many companies, and is the most essential

part of any company. It is the function that helps a company to make

4 profit. In Sunlift’s case, Business Development is absolutely a core

function because its activities brought Sunlift from a business that lost

5 money to a profitable one. Sunlift survived hard times, but now

thrives because it went through multiple changes in its business

6 directions, including an acquisition and adaptation of new strategies,

all of which resulted from [Mr. Zhou’s] decision making in managing

7 this function. As the President of Sunlift, [Mr. Zhou] is also the most

senior member of the Business Development function, who exercises

8 discretion over the function’s day-to-day operations. He manages the

function and relies on his subordinates, i.e. his direct reports and

9 indirect reports to perform the function.

10 CAR, p. 9. The appellate brief goes on to argue that Mr. Zhou satisfies the legal criteria for

11 function managers set forth in an Administrative Appeals Office (“AAO”) decision, Matter of G-

12 Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). CAR, pp. 9-10. It also explains that there

13 is no “discrepancy” between the two organizational charts provided in response to the RFE

14 because one was described as a “previous” organizational chart and the other was described as a

15 “current” organizational chart. CAR, p. 10.

16 On August 10, 2020, the AAO denied Plaintiff’s appeal based on a de novo review of the

17 Director’s decision. CAR, pp. 2-7. Because Sunlift did not contend Mr. Zhou qualified for an EB-

18 1C visa based on employment in an executive capacity, the AAO addressed only whether Mr.

19 Zhou would be working in a managerial capacity. CAR, p. 3. It considered evidence regarding

20 Mr. Zhou’s job duties along with evidence of the nature of Sunlift’s business, its staffing levels,

21 and its organizational structure. Id. According to the AAO, Sunlift was required to demonstrate

22 that Mr. Zhou would perform the high-level responsibilities set forth in the statutory definition at

23 INA § 101(a)(44)(A)(i)-(iv), 8 U.S.C. § 1101(a)(44)(A)(i)-(iv), of the INA and that his duties

24 would be primarily managerial. Id. The AAO found that Mr. Zhou did not meet this requirement,

25 explaining its conclusion as follows:

26 In sum, the duty descriptions submitted for the Beneficiary that do not

credibly articulate his daily managerial tasks or establish that he

27 would likely devote a majority of his time to qualifying managerial-

qualifying managerial tasks, including him delegating duties to his

1 claimed subordinates. The Petitioner provides few specific examples

and little documentation to substantiate the development activities the

2 Beneficiary monitored, budgets he set, major contracts he negotiated,

or “market development decisions” he made. Likewise, the Petitioner

3 did not detail or document the financial policies or procedures the

Beneficiary set, strategic planning he oversaw, pay policies he

4 established, strategic alliances or public relationships he promoted, or

media issues he managed. In addition, the Petitioner did not

5 specifically articulate or substantiate with supporting documentation

the corporate or general operating policies or business strategies the

6 Beneficiary implemented, recruitment policies and programs he

ordered, efficiencies in internal business operations he established, or

7 new business lines, sales channels. or products he developed.

8 The Beneficiary’s generic duty descriptions could apply to any

manager acting in any business or industry and they provided few

9 credible details specific to the Petitioner’s operations. This lack of

detail and documentation is particularly noteworthy since the

10 Petitioner asserts that the Beneficiary has been acting in his

managerial role in the United States pursuant to an L-1 A

11 nonimmigrant visa for approximately two years and four months

since November 2015.

12

13 CAR, p. 4.

14 The AAO also rejected Sunlift’s assertion that Mr. Zhou is a “function manager,” finding

15 that Sunlift had not: 1) “clearly defined [Mr. Zhou’s] asserted function”; 2) demonstrated that the

16 business development function was “essential”; or 3) provided evidence that Mr. Zhou managed

17 the function by delegating non-qualifying tasks to subordinates as opposed to performing the

18 function himself. CAR, p. 6. The AAO stated:

19 [T]he Beneficiary’s claimed “business development” function is

explained as being an extensive grouping of generic and seemingly

20 unrelated responsibilities that could apply to any business, including

“sales, promotion, marketing, advertising, project management,

21 business planning, and expansion, distribution strategies, product

management and product strategies, and public relations.” In addition,

22 the Petitioner indicates this function also includes “development of

distribution channels, vendor management, strategic initiatives,

23 business strategic partnerships, marketing development, business

expansion, brand building, exploring new opportunities in external

24 markets,” amongst various other responsibilities. ln other words, the

Beneficiary’s asserted function is not clearly defined, but is explained

25 as any number of potential responsibilities and functions within the

business. Further, as we discussed, the Petitioner provides few

26 examples of the Beneficiary management of his claimed function,

such as the marketing, advertising, distribution, product strategies,

27 vendors, or partnerships he oversaw or managed. In addition, the

business.

1

2 CAR, p. 6.

3 With respect to Sunlift’s evidence regarding staffing and the “current” organizational chart

4 supplied by Sunlift in response to the RFA, the AAO found that there were discrepancies between

5 the organizational chart – which listed 14 employees, and state tax records for the first quarter of

6 2018, which listed only six employees. CAR, p. 5. The AAO further found that Sunlift

7 “provide[d] no evidence to substantiate the Beneficiary exercising personnel authority over his

8 subordinates or the other members of its organizational chart, nor documentation to establish his

9 delegation of duties to them.” CAR, p. 5.

10 The AAO also rejected Sunlift’s reliance on Mr. Zhou’s decisions in 2016 to “replace[ ]

11 stone fabrication as [Sunlift’s] main source of business income;” “create[ ] new business units and

12 hire[ ] employees with relevant experience;” and “continue[ ] to move the company’s focus

13 towards higher value rebuilding and construction projects;” and his decision in 2017 to

14 “streamline financial efficiency by closing the showroom and warehouse for the stone fabrication

15 side of the busines,” finding that “these generic examples provided by [Mr. Zhou] appear to

16 describe him making one time decisions as the owner of a business, but not as a function manager

17 who is daily in charge of a business development function as claimed.” CAR, p. 6.

18 C. Contentions of the Parties

19 In Sunlift’s motion, it contends it has met the requirements for demonstrating that Mr.

20 Zhou is a function manager and that both the Director’s May 14, 2019 decision and the AAO’s

21 August 10, 2020 decision should be reversed on the grounds that they are “arbitrary, capricious, an

22 abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedures

23 Act (“APA”), 5 U.S.C. § 706(2)(A). Plaintiff’s Motion at 4. Sunlift “disputes that the evidence

24 submitted in support of its petition seeking to qualify [Mr. Zhou] as a multinational transfer acting

25 in a managerial capacity is deficient[and] maintains that evidence submitted in support of its

26 original petition in February 2018, in its response to USCIS’s Request for Evidence submitted in

27 March 2018, and in support of its appeal submitted in July 2019 collectively meet its burden of

1 6-7. Sunlift notes in passing that while non-binding, the decisions approving his L-1A non

2 immigrant visa petitions, which rely on the same definition of “managerial capacity,” support its

3 argument that the denial of the Petition at issue in this case was arbitrary and capricious. Id. at 5.

4 USCIS opposes Sunlift’s motion and seeks summary judgment in its favor affirming the

5 denial of the Petition, arguing that substantial and probative evidence supports its conclusion that

6 Sunlift did not meet its burden. Defendants’ Motion at 2. USCIS contends the scope of judicial

7 review under the APA is narrow and that a reviewing court is not empowered to substitute its

8 judgment for that of the agency. Id. at 5 (Citizens to Preserve Overton Park v. Volpe, 401 U.S.

9 402, 416 (1971)). Moreover, it asserts, courts are especially deferential in the context of

10 immigration policy. Id. (citing Jang v. Reno, 113 F.3d 1074, 1077 (9th Cir. 1997)). So long as the

11 agency’s decision is supported by substantial evidence, USCIS contends, it must be upheld. Id. at

12 6. That requirement is met here as to the AAO denial of the Petition, USCIS argues. Id. at 7. It

13 rejects Sunlift’s argument that the Director’s denial is also subject to review, arguing that the APA

14 provides for review only of final agency action. Id. (citing Herrera v. U.S. Citizenship & Immigr.

15 Servs., 571 F.3d 881, 885 (9th Cir. 2009)).

16 USCIS also argues that the Court should not consider the agency’s prior approvals of

17 Sunlift’s L-1A nonimmigrant visa petitions filed on behalf of Mr. Zhou because “Congress did not

18 intend for USCIS ‘to be bound by its initial determination that an employee is a manager for

19 purposes of granting a temporary visa when an application for a permanent visa is filed.’” Id. at

20 12 (quoting Nat’l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1476 (5th Cir. 1989)). Further, it

21 asserts, there is no dispute that the USCIS’s previous approvals of Plaintiff’s L-1A non immigrant

22 petitions are not “service precedent decisions.” Id. at 12-13 (citing 8 C.F.R. § 103.3(c); Seven

23 Star, Inc. v. United States, 873 F.2d 225, 227 (9th Cir. 1989); Mott Thoroughbred Stables, Inc. v.

24 Rodriguez, 87 F. Supp. 3d 237, 244 (D.D.C. 2015)). According to USCIS, “[a]s ‘many cases

25 where I–140 petitions [seeking EB-1C classification] were denied involved aliens who already

26 enjoyed classification in L nonimmigrant status,’ many courts have heard the same argument that

27 Plaintiff references here – and rejected it.” Id. at 13 (quoting Q Data Consulting, Inc. v. INS, 293

1 Talent, LLC v. Wolf, 448 F. Supp. 3d 644, 653 (W.D. Tex. 2020); Mahalaxmi Amba Jewelers v.

2 Johnson, 652 F. App’x 612, 618 (10th Cir. 2016); Noble House, Inc. v. Wiles, No. CV 12-7816-

3 PA-RZx, 2013 WL 1164093, at *7 (C.D. Cal. Mar. 19, 2013); Nat’l Hand Tool Corp., 889 F.2d at

4 1476)).

5 In its reply brief, dkt. 19, Sunlift does not challenge USCIS’s assertion that the Court’s

6 review is limited to the final agency action, that is, the AAO’s denial of the Petition and not the

7 denial by the Director. Nor does it dispute that the prior approval of an L-1A non immigrant visa

8 for Mr. Zhou has no binding effect or cite any case where a court has pointed to such a decision to

9 show that a subsequent denial of an EB-1C visa was arbitrary and capricious, an abuse of

10 discretion or otherwise contrary to the law under the APA. It reiterates its argument that it has met

11 its burden by showing that the evidence and information supplied in support of the Petition

12 establishes that Mr. Zhou is a function manager under the INA.

13 III. ANALYSIS

14 A. Legal Standards Under the APA

15 The APA provides for judicial review of final agency actions. See 5 U.S.C. §§ 702 and

16 704. Under the APA, a reviewing court “shall . . . hold unlawful and set aside agency action,

17 findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise

18 not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of review under this standard is

19 “narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

20 Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Nevertheless, the

21 agency must examine the relevant data and articulate a satisfactory explanation for its action

22 including a ‘rational connection between the facts found and the choice made.’” Id. (quoting

23 Burlington Truck Lines v. United States, 371 U.S. 156, 168, (1962)). Typically, this requires

24 courts to “‘consider whether the decision was based on a consideration of the relevant factors and

25 whether there has been a clear error of judgment.’” Id. (quoting Bowman Transp. Inc. v. Arkansas-

26 Best Freight System, 419 U.S. 281, 285 (1974); and citing Citizens to Preserve Overton Park v.

27 Volpe, 401 U.S. 402, 416 (1971)).

1 capricious if the agency has relied on factors which Congress has not intended it to consider,

2 entirely failed to consider an important aspect of the problem, offered an explanation for its

3 decision that runs counter to the evidence before the agency, or is so implausible that it could not

4 be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n

5 of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. “In recognition of the agency’s

6 technical expertise the court usually defers to the agency’s analysis, particularly within its area of

7 competence.” Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010); see

8 also Jang v. Reno, 113 F.3d 1074, 1077 (9th Cir. 1997) (A court’s review is “especially deferential

9 in the context of immigration policy.”). Agency action is not entitled to such deference, however,

10 “when the agency’s decision is without substantial basis in fact” or there is no “rational connection

11 between the facts found and the determinations made.” Arizona Cattle Growers’ Ass’n v. Salazar,

12 606 F.3d at 1163 (citing Earth Island Inst. v. Hogarth, 494 F.3d 757, 766 (9th Cir. 2007)).

13 An agency’s factual findings are reviewed for substantial evidence. Family Inc. v. U.S.

14 Citizenship and Immigration Services, 469 F.3d 1313, 1315 (9th Cir. 2006). “Substantial

15 evidence” is defined as “such relevant evidence that a reasonable mind might accept as adequate

16 to support a conclusion.” Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938).

17 Even if it is possible to draw two inconsistent conclusions from the evidence contained in the

18 record, this does not render the agency’s findings unsupported by substantial evidence. Consolo v.

19 Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). Under this standard, the Court may not reweigh the

20 evidence. State of Cal., Dep't of Educ. v. Bennett, 843 F.2d 333, 338 (9th Cir. 1988). Thus, a court

21 must affirm the agency’s decision unless the evidence is “so compelling that no reasonable fact

22 finder could fail to find the facts were as [the plaintiff] alleged.” Singh v. Reno, 113 F.3d 1512,

23 1514 (9th Cir. 1997).

24 “In reviewing an administrative agency decision, ‘summary judgment is an appropriate

25 mechanism for deciding the legal question of whether the agency could reasonably have found the

26 facts as it did.’ ” City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.

27 1997) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985)). Because a

1 was based, the usual standard for summary judgment under Rule 56 of the Federal Rules of Civil

2 Procedure does not apply. Occidental Eng’g Co. v. INS, 753 F.2d at 769-770. Instead, in APA

3 cases, “the function of the district court is to determine whether or not as a matter of law the

4 evidence in the administrative record permitted the agency to make the decision it did.” Id. at 769.

5 B. Application of Legal Standards

6 As discussed above, to establish eligibility for an EB-1C visa as a “function manager” a

7 petitioner must establish that “(1) the function is a clearly defined activity; (2) the function is

8 ‘essential,’ i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to

9 perform, the function; (4) the beneficiary will act at a senior level within the organizational

10 hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion

11 over the function’s day-to-day operations.” Matter of G- Inc., Adopted Decision 2017-05 (AAO

12 Nov. 8, 2017), ECF No. 17-1 at 5. The AAO found that Sunlift had not met its burden, focusing

13 on the first three of these requirements. In particular, it found that Sunlift had not “clearly

14 defined” Mr. Zhou’s asserted function, demonstrated that it was an essential function or shown

15 that he primarily managed this function rather than performing it himself. CAR, p. 7. Applying

16 the deferential standards set forth above, the Court finds that the AAO’s decision2 is supported by

17 substantial evidence and is rationally related to its conclusion.

18 The descriptions of Mr. Zhou’s job in the initial Petition, the RFE response and the denial

19 response letter set forth broad categories of duties but provide little detail as to his day-to-day

20 activities to show that he devotes the majority of his time to qualifying managerial activities or

21 delegates non-managerial tasks to subordinates. See CAR, pp. 9, 101-123, 424-425. Nor do the

22 documents supplied provide a picture of his day-to-day duties. Sunlift provided a small number

23 of bids/estimates, a lease, and acquisition papers for B&B Marble, but did not provide emails or

24 other documentary evidence reflecting many of the tasks described by Sunlift, including

25 formulating policies, conducting financial analyses and coordinating with Sunlift’s parent

26

2 Because the APA provides for judicial review only of final decisions and Sunlift does not

27

dispute that the decision of the Director is not a final decision, the Court reviews only the AAO

1 company. “Specifics are required to establish managerial or executive capacity.” Brar Bros. Farm

2 v. Napolitano, No. C11-358-RSM, 2012 WL 3887073, at *6 (W.D. Wash. Aug. 8, 2012). Instead,

3 the job duties and function Sunlift claims Mr. Zhou performs are described in largely generic

4 terms and while Sunlift offered a handful of examples showing that Mr. Zhou sometimes engages

5 in managerial activities, this evidence does not compel the conclusion that his duties are primarily

6 managerial, as is required. See Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1071 (9th

7 Cir. 2008) (affirming denial of L1-A classification where “record contain[ed] evidence that [the

8 beneficiary] performed managerial tasks [but did] not compel the conclusion that such tasks

9 comprised his primary responsibilities”).

10 The Court rejects Sunlift’s argument that past approval of L1-A visas for Mr. Zhou show

11 that the denial of the EB-1C visa Sunlift now seeks was arbitrary and capricious. Sunlift does not

12 dispute that the prior approvals have no binding effect on USCIS. Further, numerous courts have

13 rejected this argument. See, e.g., Decor Team LLC v. McAleenan, No. CV-19-05346-PHX-MTL,

14 2021 WL 661974, at *3-4 (D. Ariz. Feb. 19, 2021); Noble House, Inc. v. Wiles, No. CV 12-7816

15 PA RZX, 2013 WL 1164093, at *7 (C.D. Cal. Mar. 19, 2013); Q Data Consulting, Inc. v. I.N.S.,

16 293 F. Supp. 2d 25, 30 (D.D.C. 2003). In Décor Team LLC, the court reasoned as follows:

17 [A]s a general matter, USCIS is not bound by its previous decisions.

See Seven Star, Inc. v. United States, 873 F.2d 225, 227 (9th Cir.

18 1989) (“[A] decision by an administrative agency in one case does not

mandate the same result in every similar case in succeeding years.”).

19 There is an exception for administrative decisions specifically

designated as precedential. 8 C.F.R. § 103.3(c). Here, no party asserts

20 that the prior L-1A visa approvals were precedential; as such, these

decisions are not binding with respect to the I-140 petition. Cf. R.L.

21 Inv. Ltd. Partners v. I.N.S., 86 F. Supp. 2d 1014, 1024–25 (D. Haw.

2000), aff'd, 273 F.3d 874 (9th Cir. 2001) (“It would be ridiculous to

22 require the INS to grant a petition because it had previously granted a

similar petition by mistake. That is precisely why unpublished

23 decisions do not create precedent. The agency recognizes that they

may be unimportant for wider purposes or, for that matter, may be

24 questionable.”). To “conclude otherwise would impermissibly shift

the burden from the petitioner, who bears the burden to establish

25 entitlement to the visa, to USCIS to show that an earlier decision was

mistaken.” Healthy & Nat. Trading LLC v. United States Dep't of

26 Homeland Sec., No. CV 14-2332 PA, 2014 WL 12564125, at *4 (C.D.

Cal. Nov. 12, 2014), aff'd sub nom. 691 F. App'x 437 (9th Cir. 2017).

27

work, temporarily, for the same company in the United States in a

1 managerial, executive, or specialized position.” ... In contrast, “an

approved J-140 petition is part of a three-step process for obtaining an

2 EB-1C visa, which affords lawful permanent residency.” . . . Courts

have noted this distinction in confirming that USCIS is not bound by

3 its L-1A visa determinations in assessing a subsequent I-140 petition.

See, e.g., Noble House, Inc. v. Wiles, No. CV 12-7816 PA RZX, 2013

4 WL 1164093, at *7 (C.D. Cal. Mar. 19, 2013) (“The benefits

associated with the granting of an I-140 petition—permanent

5 residence—are sufficiently distinct from the status provided by a L-

1A visa—temporary non-immigrant status—that the results of

6 USCIS's analysis of an I-140 petition need not automatically mimic

the conclusion USCIS reached when it approved an L-1A visa

7 application[.]”). For these reasons, the Court agrees with Defendants

that USCIS’s prior approvals of [the beneficiary’s] L-1A visas do not,

8 in themselves, render the subsequent denial of the I-140 petition

9 arbitrary or capricious.

10 || 2021 WL 661974, at *3-4. The undersigned agrees with the reasoning in Décor Team LLC and

11 therefore concludes that past approval of Mr. Zhou’s L-1A visas are insufficient to establish that

«12 || the denial of the Petition was arbitrary and capricious.

13 In sum, the Court finds that USCIS’s denial of the Petition was not arbitrary and

v 14 capricious, an abuse of discretion, or otherwise not in accordance with law.

15 || IV. CONCLUSION

16 For the reasons set forth above, Plaintiff's Motion is DENIED. Defendants’ Motion is

= 17 GRANTED. The Clerk is instructed to enter judgment in favor of Defendants.

18 IT IS SO ORDERED.

19

20 || Dated: July 22, 2021

21

22 €

J PH C. SPERO

23 ief Magistrate Judge

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