United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S EMERGENCY
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
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”) 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
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].
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].
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].
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.
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).
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).
Likelihood of Success on the Merits
Applicable Legal Principles
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).
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 ...