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Parzenn Partners, LLC v. Baran

United States District Court, D. Massachusetts

November 19, 2019

PARZENN PARTNERS, LLC, Plaintiff,
v.
KATHY A. BARAN, in her Official Capacity, Director of the California Service Center, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security; KENNETH CUCCINELLI, in his Official Capacity, Acting Director, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security; KEVIN MCALEENAN, in his Official Capacity, Acting Secretary, U.S. Department of Homeland Security; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; and U.S. DEPARTMENT OF HOMELAND SECURITY, Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF'S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Plaintiff Parzenn Partners, LLC (“Parzenn”) challenges the denial of an H-1B nonimmigrant specialty worker visa (“H-1B visa”) application submitted on behalf of one of its employees, Dhvanish Shah. Currently pending before the Court is Parzenn's Emergency Motion for Temporary Restraining Order and Preliminary Injunction through which Parzenn seeks a stay of the U.S. Citizenship and Immigration Services (“USCIS”)[1] decision denying Parzenn's application for an H-1B visa, enjoining USCIS from taking any adverse action against Parzenn or Mr. Shah, and ordering USCIS to maintain the state of affairs as it existed on September 10, 2019, for the duration of this proceeding. [ECF Nos. 17, 17-1]. For the following reasons, Parzenn's motion for a preliminary injunction [ECF No. 17] is DENIED.

         I. BACKGROUND

         Parzenn is a startup business advisory services firm that works with clients from various industries. [ECF No. 17-2 ¶¶ 2-3]. Mr. Shah, a native and citizen of India, is one of Parzenn's co-founders and one of its few employees. [ECF No. 1-5 at 93 (organizational chart); ECF No. 17-3 ¶ 1]. He received a Masters in Business Administration from Babson College in May 2018. [ECF No. 17-3 ¶ 3]. Mr. Shah also holds a Bachelor of Commerce degree from Narsee Monjee Institute of Management Studies. [ECF No. 1-5 at 102]. After receiving his MBA, Mr. Shah began work at Parzenn once he was granted valid F-1 OPT employment authorization. [ECF No. 1-5 at 48; ECF No. 17-3 ¶¶ 4-5].

         On January 18, 2019, Parzenn filed a petition with USCIS to obtain an H-1B visa for Mr. Shah so that he could work as an entry-level Operations Research Analyst/Consultant for a term of three years. [ECF No. 1-4 at 2]. On February 1, 2019, USCIS issued a Request for Evidence (“RFE”) concerning Mr. Shah's eligibility for an H-1B visa after determining that he owned a 50% equity stake in the company. [Id. at 2-3]. Parzenn timely complied with the RFE. [Id. at 2]. On March 11, 2019, USCIS denied Parzenn's petition because it found that Mr. Shah owned or controlled the petitioning company. [Id. at 2-5].

         On April 11, 2019, Parzenn filed a second petition for an H-1B visa for Mr. Shah. [ECF No. 1-5]. On April 26, 2019, USCIS issued an RFE for information regarding inter alia whether Mr. Shah's position as an Operations Research Analyst/Consultant qualified as a “specialty occupation” within the meaning of the Immigration and Nationality Act (“INA”). [ECF No. 1-6 at 1, 7-13]. On June 13, 2019, Parzenn timely complied with the RFE. [ECF No. 1-7]. On June 27, 2019, USCIS denied Parzenn's petition on the ground that Parzenn had failed to demonstrate that the Operations Research Analyst/Consultant position was a “specialty occupation.” [ECF No. 1-8].[2]

         On July 11, 2019, Parzenn initiated this action. [ECF No. 1]. Defendants answered the complaint on September 13, 2019. [ECF No. 14]. On October 16, 2019, Parzenn filed the instant motion for a preliminary injunction. [ECF No. 17]. On October 21, 2019, the Court held a status conference and set a briefing schedule for the pending motion. [ECF No. 19]. On November 4, 2019, Defendants opposed the motion for a preliminary injunction. [ECF No. 20]. On November 7, 2019, Parzenn filed a reply brief. [ECF No. 22]. Also on November 7, 2019, the Court heard argument on the motion. [ECF No. 23].

         II. DISCUSSION

         A. Legal Standard

         “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Parzenn, as the moving party, bears the burden of satisfying each of these elements. See Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003).

         Courts do not afford equal weight to the four factors. Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013). Rather, the movant's likelihood of success on the merits “is the main bearing wall of the four-factor framework.” Id. at 10 (quotation marks and citation omitted). In the First Circuit, “proving likelihood of success on the merits is the ‘sine qua non' of a preliminary injunction.” Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 173 (1st Cir. 2015) (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)). “[I]f the moving party cannot demonstrate that [it] is likely to succeed in [its] quest, the remaining factors become matters of idle curiosity.” Id. (quoting New Comm Wireless Servs., 287 F.3d at 9).

         B. Likelihood of Success on the Merits

         1. Applicable Legal Principles

         The INA permits qualified non-citizen temporary workers to work in the United States if they are sponsored by an employer in a “specialty occupation.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). A specialty occupation is “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) 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.” 8 U.S.C. § 1184(i)(1). The related regulation provides:

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

8 C.F.R. § 214.2(h)(4)(ii).

         An employer can establish that an employee performs a specialty occupation by showing that the employee's position meets one of four criteria:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position [(“Criteria One”)];
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an ...

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