United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on Plaintiff Ecomac USA,
LLC's Motion for Summary Judgment [Doc. 14] and Defendant
United States Citizenship and Immigration Services'
Cross-Motion for Summary Judgment [Doc. 15]. Plaintiff
responded to Defendant's Cross-Motion [Doc. 16] and
Defendant replied [Doc. 18].
16, 2017, the Plaintiff Ecomac USA LLC (“Ecomac
USA” or “Plaintiff”) brought this action
pursuant to the Administrative Procedure Act (APA), 5 U.S.C.
§§ 500, et. seq, seeking judicial review
of a final agency action. [Doc. 1]. Specifically, the
Plaintiff seeks relief under 5 U.S.C. § 706, alleging
that Defendant United States Citizenship and Immigration
Services' (USCIS or “Defendant”) denial of
Plaintiff's I-129 petition for L-1A nonimmigrant
classification for its beneficiary, Luiz Coracini
(“Coracini”), under the Immigration and
Nationality Act (INA or the “Act”), 8 U.S.C.
§§ 1101, et. seq, was “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. § 706(2)(A).
[See Doc. 1 at ¶ 12].
October 2, 2017, Plaintiff filed a motion for summary
judgment. [Doc. 14]. On November 8, 2017, Defendant filed a
cross-motion for summary judgment. [Doc. 15]. Both parties
contend that the material facts in this matter are not in
dispute. [Docs. 14, 15]. Plaintiff concedes these facts
“are reflected in the Certified Administrative
Record [ ] on file with the Court.” [Doc.
14]. Defendant specifically contends that the Court's
review is limited to the Administrative Record. [Doc. 15].
STANDARD OF REVIEW
the USCIS grants or denies a petition for nonimmigrant worker
classification, the decision is subject to judicial review
under the APA. See 5 U.S.C. § 702. As such, the
Court may set aside the agency's action only if it is
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” 5 U.S.C.
§ 706(2); N.C. Wildlife Federation v. N.C. Dept. of
Transp., 677 F.3d 596, 601 (4th Cir. 2012). “This
involves a searching and careful, but ultimately narrow and
highly deferential, inquiry.” Webster v. U.S. Dept.
of Agriculture, 685 F.3d 411, 422 (4th Cir. 2012)
(citations omitted). “Because this case involves the
review of agency action pursuant to the APA, the Court's
review is confined to the administrative record on which the
agency's decision was based.” Southern Four
Wheel Drive Ass'n v. U.S. Forest Service,
No. 2:10-cv-15, 2012 WL 4106427, at *2 (W.D. N.C. Sept. 19,
2012) (Reidinger, J.) (citations omitted). In the end, if the
agency has followed proper procedure, and if there is a
rational basis for its decision, the reviewing court will not
disturb its judgment. Id. (citing Hodges v.
Abraham, 300 F.3d 432, 445 (4th Cir. 2002)).
parties have moved for summary judgment. “Under APA
section 706(2) review, the court does not employ the usual
summary judgment standard.” Id. (quoting
Center for Sierra Nevada Conservation v. U.S. Forest
Service, 832 F.Supp.2d 1138, 1148 (E.D.Cal. 2011))
(other citations omitted). Rather,
Under the APA, it is the role of the agency to resolve
factual issues to arrive at a decision that is supported by
the administrative record, whereas “the function of the
district court is to determine whether or not as a matter of
law the evidence in the administrative record permitted the
agency to make the decision it did.” Summary judgment
thus serves as the mechanism for deciding, as a matter of
law, whether the agency action is supported by the
administrative record and otherwise consistent with the APA
standard of review.
University Medical Center, Inc. v. Sebelius, 856
F.Supp.2d 66, 76 (D.D.C. 2012) (quoting Occidental
Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.
FACTS FROM THE ADMINISTRATIVE RECORD
Manutencao de Maquinas e Equipamentos Ltda. (“Ecomac
Brazil”) is a limited liability company located in
Franco da Rocha, Sao Paulo, Brazil. [AR 49, 61, 65]. Luiz
Coracini is the president, chief executive officer, and
general manager of Ecomac Brazil. [AR 50, 78, 102]. Coracini
owns Ecomac Brazil with his wife, Vera L.F. Coracini, who is
the vice president. [AR 102, 107]. Ecomac Brazil installs,
maintains, and repairs HVAC, refrigeration, air treatment and
other types of industrial machinery. Ecomac Brazil also
manufactures machinery and equipment for specific industrial
uses. [AR 61, 65]. The total staff of Ecomac Brazil includes
six employees and eight “contractors.” [AR 103,
105]. Ecomac Brazil provides its services to a variety of
entities, including its largest client, Petrobras, a
semi-public Brazilian multinational corporation in the
petroleum industry headquartered in Rio de Janiero, Brazil.
[See AR 50].
Ecomac USA is a wholly-owned subsidiary of Ecomac Brazil. [AR
49, 50]. On October 23, 2014, Plaintiff, by and through
Coracini, filed the Articles of Organization for Plaintiff
with the North Carolina Secretary of State. [AR 139-41]. On
June 30, 2015, Plaintiff filed with the USCIS a Form I-129
petition, together with an L Classification Supplement
(collectively “Petition”), seeking L-1A manager
or executive classification for Coracini, the beneficiary.
[AR 41-52]. Plaintiff also submitted certain documents in
support of its Petition. [See AR 53-148]. At the
time, Coracini was living in Forest City, North Carolina, and
had B-2 nonimmigrant status [AR 43, 54], which allows for
temporary entry into the United States for tourism, pleasure
or visiting. L-1A classification would allow Coracini to
remain in the United States for a period of one year in order
for Plaintiff to temporarily employ Coracini as a managing
member to open Ecomac USA, a “new office” of
Ecomac Brazil, in the United States. [AR 3]. Plaintiff seeks
to open and operate this new office to assemble dosage
regulation devises for various industries. [AR 3, 45]. The
Petition lists the dates of Coracini's intended
employment with Plaintiff as October 1, 2015 to September 30,
2016. [AR 45].
September 17, 2015, after reviewing the Petition and
supporting documents, the USCIS sent Plaintiff a Request for
Evidence (RFE). [AR 165]. The RFE advised Plaintiff of all of
the requirements for obtaining L-1A classification for
Coracini and the evidence that Plaintiff still had to submit
in order to satisfy those requirements. [AR 165-70]. Namely,
the RFE stated that Plaintiff: (1) had failed to submit
“any evidence” that “sufficient physical
premises to house the new office [had] been secured;”
(2) had failed to submit sufficient evidence to show that
Coracini had at least one continuous year of full-time
employment that was either managerial or executive with a
qualifying organization within the three years before the
petition was filed; and (3) had failed to submit sufficient
evidence that “the new office will support an executive
or managerial position within one year of petition
approval.” [AR 167-70]. The RFE outlined what evidence
Plaintiff could submit that would be deemed sufficient to
satisfy each of these requirements. The RFE also set December
13, 2015 as Plaintiff's deadline to respond. [AR 165,
167-70]. On December 9, 2015, Plaintiff responded to the RFE
with additional documents. [See AR 171-318]. On
April 27, 2016, the USCIS issued a decision denying
Plaintiff's Petition on the ground that, even with the
additional documents submitted, Plaintiff failed to satisfy
each of the three requirements enumerated in the RFE. [AR
about May 20, 2016, Plaintiff appealed this decision to the
Administrative Appeals Office (AAO), arguing that the
“petition should be reevaluated under a standard of
balanced fairness. Not on unbased [sic] negative
conclusory speculations.” [AR 26]. On October 14, 2016,
the AAO issued a non-precedent decision dismissing
Plaintiff's appeal. [AR 3-17]. In addition to citing the
three grounds that formed the basis of the USCIS'
original denial of Plaintiff's Petition, the AAO cited as
an additional ground for dismissing the appeal that Plaintiff
failed to show the requisite employer-employee relationship
between the Plaintiff and the beneficiary as required by
§ 101(a)(15)(L) for intracompany transferees. [AR 16].
The AAO concluded, “[t]he petition will be denied and
the appeal dismissed for the above stated reasons, with each
considered as an independent and alternative basis for the
Complaint, Plaintiff alleges that Defendant erred in reaching
each of the three conclusions Defendant made in support of
its denial of Plaintiff's Petition. [See Doc. 1
at ¶¶ 14-17]. Plaintiff contends,
“Defendant's actions in this case have been beyond
arbitrary, capricious, abusive, and contrary to law, thus
rendering them subject to correction by this Court under 5
U.S.C. §706.” [Id. at ¶ 12].
Plaintiff requests that the Court enter ...