Innova Solutions, Inc. v. Kathy Baran

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INNOVA SOLUTIONS, INC., No. 19-16849

Plaintiff-Appellant,

D.C. No.

v. 5:17-cv-03674-

VKD

KATHY A. BARAN, Director of

California Service Center, U.S.

Citizenship and Immigration OPINION

Services,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Virginia K. DeMarchi, Magistrate Judge, Presiding

Argued and Submitted November 20, 2020

Pasadena, California

Filed December 16, 2020

Before: Richard A. Paez and John B. Owens, Circuit

Judges, and Morrison C. England, Jr., * Senior

District Judge.

Opinion by Judge Owens

*

The Honorable Morrison C. England, Jr., United States Senior

District Judge for the Eastern District of California, sitting by

designation.

2 INNOVA SOLUTIONS V. BARAN

SUMMARY **

Immigration

The panel reversed the district court’s grant of summary

judgment for the U.S. Citizenship and Immigration Services

(USCIS), and remanded, concluding that USCIS’s denial of

an H-1B temporary worker visa was arbitrary and

capricious.

Innova Solutions, Inc. (Innova) wanted to hire a citizen

of India with a bachelor’s degree as a computer programmer

and petitioned for an H-1B “specialty occupation” visa on

his behalf. Under the relevant regulation, Innova had to

establish that a “baccalaureate or higher degree or its

equivalent is normally the minimum requirement for entry

into the particular position.” Although the Department of

Labor’s Occupational Outlook Handbook (OOH) provides

that “[m]ost computer programmers have a bachelor’s

degree,” and that a bachelor’s degree is the “[t]ypical level

of education that most” computer programmers need,

USCIS concluded that “the OOH does not state that at least

a bachelor’s degree or its equivalent in a specific specialty is

normally the minimum required.”

The panel concluded that USCIS’s denial of the H-1B

visa petition was arbitrary and capricious. First, the panel

explained that there is no daylight between typically needed,

per the OOH, and normally required, per the regulation, and

that USCIS’s suggestion that there is “space” between these

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

INNOVA SOLUTIONS V. BARAN 3

words is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise. The

panel also explained that the regulation is not ambiguous and

deference to such an implausible interpretation is

unwarranted.

Next, the panel concluded that USCIS’s decision was

arbitrary and capricious because it misrepresented the OOH

by stating that it provides that most computer programmers

have a bachelor’s or associate’s degree when, in fact, the

OOH provides that most have a bachelor’s degree.

Finally, the panel concluded that USCIS’s decision was

arbitrary and capricious because USCIS failed to consider

key evidence, namely, the OOH language providing that a

“bachelor’s degree” is the “[t]ypical level of education that

most workers need to enter this occupation.”

COUNSEL

David A. Wulkan (argued), Jonathan R. Sturman, and David

M. Sturman, Law Office of David M. Sturman A.P.C.,

Encino, California, for Plaintiff-Appellant.

Elizabeth D. Kurlan (argued), Assistant United States

Attorney; Sara Winslow, Chief, Civil Division; David L.

Anderson, United States Attorney; United States Attorney’s

Office, San Francisco, California; Joseph H. Hunt, Assistant

Attorney General; William C. Peachey, Director; Glenn M.

Girdharry, Assistant Director; Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C.; for Defendant-Appellee.

4 INNOVA SOLUTIONS V. BARAN

Mary Kenney (argued), Washington, D.C.; Leslie K. Dellon,

Washington, D.C.; as and for Amicus Curiae American

Immigration Council.

OPINION

OWENS, Circuit Judge:

Innova Solutions, Inc. (Innova), a technology company

that provides services including cloud storage and data

analytics, appeals from the district court’s denial of its

challenge to the U.S. Citizenship and Immigration Services’

(USCIS) refusal to issue an H-1B temporary worker visa.

We have jurisdiction under 28 U.S.C. § 1291, and we reverse

and remand.

I. BACKGROUND

Like many leading American technology companies,

Innova needs computer programmers. Innova wanted to hire

Dilip Dodda, a citizen of India with a bachelor’s degree, to

work as one for a three-year period.

Innova petitioned for an H-1B “specialty occupation”

visa so Dodda could reside and work in the United States.

See 8 U.S.C. § 1101(a)(15)(H)(i)(b). Under the relevant

statutory and regulatory regime, 1 Innova had to establish that

1

In October 2020, the Department of Homeland Security and

USCIS promulgated an interim final rule that amends the regulatory

criteria for qualifying as a specialty occupation. See Strengthening the

H-1B Nonimmigrant Visa Classification Program, 85 Fed. Reg. 63,918

(Oct. 8, 2020). The new rule does not apply to pending or previously

resolved visa petitions. Id. at 63,918, 63,924. The parties agree the

amended language does not apply in this case.

INNOVA SOLUTIONS V. BARAN 5

the position required “theoretical and practical application of

a body of highly specialized knowledge” and that “[a]

baccalaureate or higher degree or its equivalent is normally

the minimum requirement for entry into the particular

position.” 2 See 8 U.S.C. § 1184(i)(1); 8 C.F.R.

§ 214.2(h)(4)(iii)(A)(1).

USCIS relied on the Department of Labor’s

Occupational Outlook Handbook (OOH) as an

“authoritative source” to determine whether Dodda’s

position “normally” requires a bachelor’s degree. 3

According to the OOH, “[m]ost computer programmers have

a bachelor’s degree in computer science or a related subject;

however, some employers hire workers with an associate’s

degree.” The OOH “Quick Facts” table for computer

programmers similarly provided that a bachelor’s degree is

the “[t]ypical level of education that most workers need to

enter this occupation.”

Despite the OOH’s clear statements that “most”

computer programmers have a bachelor’s degree and that a

2

The implementing regulation provides three other independently

sufficient pathways for demonstrating that a position is in a “specialty

occupation.” See 8 C.F.R. § 214.2(h)(4)(iii)(A)(2)–(4). For example, a

position also qualifies as a “specialty occupation” if the employer

normally requires a degree for the position. See id.

§ 214.2(h)(4)(iii)(A)(3). Only the first criterion is at issue on appeal.

3

The OOH provides hundreds of occupational profiles

describing “the typical duties performed by the occupation” and “the

typical education and training needed to enter the occupation,”

among other information. U.S. Bureau of Labor Statistics,

Occupational Information Included in the OOH (Sept. 1, 2020),

https://www.bls.gov/ooh/about/occupational-information-included-in-t

he-ooh.htm. We refer throughout this opinion to the 2016–2017 version

of the OOH that USCIS cited in its decision.

6 INNOVA SOLUTIONS V. BARAN

bachelor’s degree is the “typical” level of education

“need[ed]” for the position, USCIS concluded that Innova

had failed to show that a computer programmer qualified as

a specialty position:

While the OOH indicates that most computer

programmers obtain a degree (either a

bachelor’s or an associate’s degree) in

computer science or a related field, the OOH

does not state that at least a bachelor’s degree

or its equivalent in a specific specialty is

normally the minimum required for entry into

the occupation. Further, the OOH also

indicates that employers value computer

programmers who have experience, which

can be obtained through internships. 4

Innova challenged USCIS’s denial of the visa in district

court under section 706 of the Administrative Procedure Act,

contending that the decision was arbitrary and capricious.

The district court rejected that argument and granted

summary judgment for USCIS, concluding that “the OOH

description for the Computer Programmer occupation does

not describe the normal minimum educational requirements

of the occupation in a categorical fashion” because “at least

some Computer Programmer positions may be performed by

someone with an associate’s degree.” Innova then appealed.

4

From 2000 to 2017, USCIS followed agency guidance (referred to

as the Way Memo) that “we will generally consider the position of

programmer to qualify as a specialty occupation” under the first

regulatory criterion. In 2017, USCIS issued guidance rescinding the

Way Memo. USCIS did not explicitly rely on the rescission memo in

the instant case but followed its logic.

INNOVA SOLUTIONS V. BARAN 7

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s ruling on cross-

motions for summary judgment. Guatay Christian

Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th

Cir. 2011). “This court also reviews de novo the district

court’s evaluations of an agency’s actions.” San Luis &

Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th

Cir. 2014).

Under the Administrative Procedure Act, we must set

aside agency action “found to be arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). An action is arbitrary and

capricious if the agency “entirely failed to consider an

important aspect of the problem, offered an explanation for

its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” Nat’l

Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,

658 (2007) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

To survive a challenge, the agency must articulate “a

satisfactory explanation” for its action, “including a rational

connection between the facts found and the choice made.”

Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019)

(citation omitted). We may not attempt to make up for

deficiencies in the decision by “supply[ing] a reasoned basis

for the agency’s action that the agency itself has not given.”

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127

(2016) (citation omitted).

8 INNOVA SOLUTIONS V. BARAN

B. USCIS’s Denial of the H-1B Visa Petition Was

Arbitrary and Capricious

The OOH is the only source upon which USCIS relied to

conclude that a bachelor’s degree is not “normally” required

for computer programming positions like Innova’s. The

OOH stated that “[m]ost computer programmers have a

bachelor’s degree in computer science or a related subject.”

The OOH also listed a bachelor’s degree as the “[t]ypical

level of education that most workers need to enter” the

computer programmer occupation.

USCIS’s decision in light of that evidence was arbitrary

and capricious. Mirroring the regulatory language, the

decision explains: “the OOH does not state that at least a

bachelor’s degree or its equivalent in a specific specialty is

normally the minimum required for entry into the

occupation.” Although the OOH, a career education

resource published by a different agency, did not use the

precise language of the H-1B regulation, it made clear that a

bachelor’s degree is not only common but typically needed.

There is no daylight between typically needed, per the OOH,

and normally required, per the regulatory criteria.

“Typically” and “normally” are synonyms. Normally,

Merriam-Webster Thesaurus, https://www.merriam-

webster.com/thesaurus/normally. The Supreme Court uses

these words interchangeably in the same sentence. 5 So do

5

See, e.g., Rapanos v. United States, 547 U.S. 715, 744 (2006) (“In

contrast to the pollutants normally covered by the permitting requirement

of § 1342(a), ‘dredged or fill material,’ which is typically deposited for

the sole purpose of staying put, does not normally wash downstream.”

(citation omitted) (emphases added)); Miller v. Albright, 523 U.S. 420,

469 (1998) (Ginsburg, J., dissenting) (“These generalizations pervade

the opinion of Justice Stevens, which constantly relates and relies on

INNOVA SOLUTIONS V. BARAN 9

we. 6 So does the United States Solicitor General. 7 And so

does the federal government. 8

USCIS’s contrary reasoning is beyond saving. There is

no “rational connection” between the only source USCIS

cited, which indicated most computer programmers have a

bachelor’s degree and that a bachelor’s degree is typically

needed, and USCIS’s decision that a bachelor’s degree is not

normally required. See Dep’t of Com., 139 S. Ct. at 2569

(citation omitted); Next Generation Tech., Inc. v. Johnson,

328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) (noting that the

court “is at a loss to see a ‘rational connection’” in the same

context). USCIS’s suggestion that there is “space” (which

we understand to connote a difference in meaning) between

these words is “so implausible that it could not be ascribed

to a difference in view or the product of agency expertise.”

Defs. of Wildlife, 551 U.S. at 658 (citation omitted). While

it is theoretically possible that there is “space” between

what ‘typically,’ or ‘normally,’ or ‘probably’ happens ‘often.’”

(emphases added)).

6

See, e.g., United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157,

1168 (9th Cir. 2017) (“[M]ere nondisclosure of evidence is typically not

enough to constitute fraud on the court, and perjury by a party or witness,

by itself, is not normally fraud on the court.” (internal quotation marks

and citation omitted) (emphases added)); United States v. Flores-Blanco,

623 F.3d 912, 915 (9th Cir. 2010).

7

See Brief for the United States at 3, Boyle v. United States,

556 U.S. 938 (2009) (No. 07-1309) (“After scouting for banks likely to

have vulnerable and cash-rich night-deposit boxes, typically located in

retail areas, like shopping malls, the group would normally execute

robberies in the early morning hours.” (internal citations omitted)

(emphases added)).

8

See, e.g., 30 C.F.R. § 580.30; 33 C.F.R. § 203.71; 40 C.F.R.

§ 98.128; 45 C.F.R. § 1801.4.

10 INNOVA SOLUTIONS V. BARAN

normally, most, and typically, that space is at best molecular,

and nowhere near big enough for the doublespeak freight

train that USCIS tries to drive through it.

In response, USCIS points to OOH language stating that

“some employers hire workers with an associate’s degree.”

But the fact that some computer programmers are hired

without a bachelor’s degree is entirely consistent with a

bachelor’s degree “normally [being] the minimum

requirement for entry.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)

(emphasis added); see also Taylor Made Software, Inc. v.

Cuccinelli, 453 F. Supp. 3d 237, 246 (D.D.C. 2020)

(“[USCIS] cannot simply rely on the OOH’s recognition that

an unspecified number of contrary cases exist. That is not a

rational treatment of the language in the OOH.”) Normally

does not mean always. 9 See Normally, Cambridge

Dictionary (2019), https://dictionary.cambridge.org/us/dict

ionary/english/normally (defining “normally” as “usually or

regularly” and “usually, or in most cases” (emphasis

added)); see also United States v. Corey, 232 F.3d 1166,

1180 (9th Cir. 2000) (distinguishing “normally” from

“always”); Riverbend Farms, Inc. v. Madigan, 958 F.2d

1479, 1488 (9th Cir. 1992) (same); 5 C.F.R. § 551.202(h)

(same). While agencies are entitled to deference in

interpreting their own ambiguous regulations, this regulation

is not ambiguous and deference to such an implausible

interpretation is unwarranted. See Kisor v. Wilkie, 139 S. Ct.

2400, 2414 (2019) (limiting Auer deference to regulations

9

That USCIS recently issued an interim final rule amending this

regulation to delete the word “normally” from the first criterion so that

that a bachelor’s degree is “always the requirement” for the occupation

confirms this common sense reading of the prior regulatory language.

See 85 Fed. Reg. at 63,926. As discussed above, this amendment does

not impact the instant appeal.

INNOVA SOLUTIONS V. BARAN 11

that are “genuinely ambiguous, even after a court has

resorted to all the standard tools of interpretation”); Mejia v.

Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002) (noting that an

agency “does not have the discretion to misapply the law.”).

USCIS’s unreasonable reading of the regulatory language

here is therefore arbitrary and capricious. See Salehpour v.

INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“Where the

objective criteria of a regulation are clearly met, there is no

room for an agency to interpret a regulation so as to add

another requirement.”).

On appeal, USCIS tries to distance itself from the

“authoritative source” upon which it chose to rely

exclusively in its decision. USCIS contends that the OOH

alone cannot establish “whether an occupation qualifies per

se as a specialty occupation” because “[i]n some instances,

as with the Computer Programmer occupation here, it is not

a sufficient source of information.” In other words, where

the OOH states that some positions do not require a

bachelor’s degree, USCIS does not consider the OOH a

“sufficient source of information.” That argument is related

to the basis for the district court’s decision: because some

computer programmers are hired with associate’s degrees,

Innova “had the burden to show that the particular position

offered to Mr. Dodda was among the Computer Programmer

positions for which a bachelor’s degree was normally

required.”

These arguments are flawed. First, by demanding

additional proof anytime some positions within an

occupation require less than a bachelor’s degree, USCIS

again improperly equates “normally” with “always.” These

contentions also misconstrue the regulation and flout

USCIS’s own approach to applying it. While it is true that

the regulation refers to the requirement of a bachelor’s

12 INNOVA SOLUTIONS V. BARAN

degree “for entry into the particular position,” 8 C.F.R.

§ 214.2(h)(4)(iii)(A)(1) (emphasis added), USCIS

determined that Dodda’s “particular position” is indeed

computer programmer, and not a sub-group within that

classification. As USCIS told the district court, this is the

first of two steps in USCIS’s analysis of the first regulatory

criterion.

Second, “the agency categorically determines whether

the educational requirements of that occupation group in the

OOH normally requires for entry at least a bachelor’s degree

in a specific specialty.” Therefore, by USCIS’s own

admission, showing that the matching occupational group in

the OOH normally requires a bachelor’s degree satisfies the

regulation. No additional proof about whether the position

falls within some sub-group is required. By requiring Innova

to show its “particular position . . . was among the Computer

Programmer positions for which a bachelor’s degree was

normally required,” the district court’s ruling functionally

requires visa petitioners to demonstrate that their particular

position actually requires a bachelor’s degree. That

approach is plainly inconsistent with the language of the first

regulatory criterion and USCIS practice. Moreover, it

conflates the first criterion, which only asks whether the

position normally requires a bachelor’s degree, and the third

criterion, which asks whether the employer normally

requires a bachelor’s degree for the position. Compare

8 C.F.R. § 214.2(h)(4)(iii)(A)(1), with id.

§ 214.2(h)(4)(iii)(A)(3). And as both parties acknowledge,

the four criteria are independent—a petitioner need only

satisfy any one criterion to establish that a position is in a

“specialty occupation.” Id. § 214.2(h)(4)(iii)(A).

USCIS’s decision was also arbitrary and capricious

because in misrepresenting the OOH, it “offered an

INNOVA SOLUTIONS V. BARAN 13

explanation for its decision that [ran] counter to the evidence

before [it].” Defs. of Wildlife, 551 U.S. at 658 (citation

omitted). We have required agency decisions to accurately

reflect the evidentiary record. See Cerrillo-Perez v. INS,

809 F.2d 1419, 1422 (9th Cir. 1987) (“[W]hen important

aspects of the individual claim are distorted or disregarded,

the BIA has abused its discretion.” (internal quotation marks

and citation omitted)).

According to the USCIS decision, the OOH stated that

“the [computer programmer] occupation allows for a wide

range of educational credentials, including an associate’s

degree to qualify.” But rather than suggesting a “wide

range,” the OOH stated: “Most computer programmers have

a bachelor’s degree in computer science or a related subject;

however, some employers hire workers with an associate’s

degree.” The USCIS decision continues: “the OOH

indicates that most computer programmers obtain a degree

(either a bachelor’s or an associate’s degree) in computer

science or a related field.” But as the district court

acknowledged, that “mischaracterizes the OOH.” The OOH

did not state that most computer programmers have either a

bachelor’s or an associate’s degree, but rather that most

“have a bachelor’s degree in computer science or a related

subject.”

While a factual error is not necessarily fatal to an agency

decision, whether most programmers have a bachelor’s (as

opposed to either a bachelor’s or associate’s) degree is the

core question upon which USCIS’s determination here

hinged. Because we may only affirm on the basis provided

by the agency, SEC v. Chenery Corp., 332 U.S. 194, 196

(1947), and in any case, the agency has not disavowed this

view, this serious misconstruction of the only source

considered was arbitrary and capricious.

14 INNOVA SOLUTIONS V. BARAN

Finally, USCIS failed to consider key evidence. A

decision is arbitrary and capricious if the agency “entirely

failed to consider an important aspect of the problem.” Defs.

of Wildlife, 551 U.S. at 658 (citation omitted). “We will

defer to an agency’s decision only if it is ‘fully informed and

well-considered.’” Sierra Club v. Bosworth, 510 F.3d 1016,

1023 (9th Cir. 2007) (citation omitted). The OOH listed

“bachelor’s degree” as the “[t]ypical level of education that

most workers need to enter this occupation.” That language

speaks directly to the question whether a bachelor’s degree

is normally required for computer programmers. Indeed, it

preempts USCIS’s core argument on appeal: that “there is a

difference between workers in a particular occupation

‘having’ a degree and what the industry (including other

employers) normally ‘requires,’” and that the OOH only

establishes the former. Despite appearing at the top of the

OOH’s landing page for computer programmers, this OOH

language was not mentioned anywhere in USCIS’s decision.

USCIS’s failure to consider evidence so central to the

inquiry is yet another (and independent) reason why its

decision was arbitrary and capricious, and why we must

reverse.

REVERSED AND REMANDED.