Drishticon, Inc. v. United States Citizenship and Immigration Service

Background

Drishticon, an information-technology company with offices in Silicon Valley and Mumbai, filed an employment-based immigration petition in June 2018. The petition sought to classify its employee, Vijayalekshmy Radhakrishnan, as eligible for an EB-1C visa for certain multinational executives and managers. Drishticon proposed that she work in the United States as a “Senior Manager Advance Technology,” the same position she had held beginning in May 2017.

In December 2020, United States Citizenship and Immigration Services (USCIS) notified Drishticon that it intended to deny the petition. USCIS cited site visits that found no employees at the Mumbai office and no employees assigned to the California headquarters, as well as a State Department investigation that concluded Drishticon had provided false information about its projects. USCIS denied the petition in May 2023, and its Administrative Appeals Office upheld that denial. Drishticon then filed this action, and both sides moved for summary judgment, a procedure used to resolve a case when the material facts do not require a trial.

Legal Standard

The court reviewed USCIS’s decision under the Administrative Procedure Act. Under that law, an agency decision must be set aside if it is arbitrary, capricious, an abuse of discretion, or otherwise unlawful. The court explained that its review was limited to the administrative record and that it could not substitute its judgment for the agency’s. The court reviewed legal issues independently and reviewed factual findings for substantial evidence.

Analysis

Notice of adverse information. Drishticon argued that USCIS violated 8 C.F.R. § 103.2(b)(16)(i) by withholding critical information and giving vague or incorrect notice. The regulation generally requires the agency to inform a petitioner about derogatory information unknown to the petitioner and provide an opportunity to respond.

The court found that USCIS had informed Drishticon about the Mumbai and California site visits, the results of those visits, the State Department investigation, and specific unverified contracts. Although the notice could have been more precise about contract-payment discrepancies, the court concluded that Drishticon was aware of the information against it, which satisfied the regulation.

Managerial nature of the United States position. USCIS found that Drishticon had not shown that Radhakrishnan’s proposed work would be primarily managerial or executive and concluded that the position appeared similar to that of a first-line supervisor. USCIS relied on discrepancies in staffing and organizational structure, concerns about the actual number and location of employees, incomplete payroll information, site visits to empty offices, and Radhakrishnan’s job description.

The court concluded that USCIS had considered the relevant evidence, including organizational charts, tax forms, employee statements, payroll information, and job descriptions. It found a rational connection between that evidence and USCIS’s conclusion that Drishticon had not proved that Radhakrishnan would serve in a qualifying managerial or executive role. The court also rejected Drishticon’s argument that supervising professional employees alone established qualifying managerial status.

Managerial nature of the India position. Drishticon also had to show that Radhakrishnan previously worked abroad in a qualifying managerial or executive capacity. The court found that USCIS reasonably relied on payroll data showing limited staffing, site visits to empty offices, and Radhakrishnan’s job description. The payroll data indicated that, between April 2016 and December 2020, the company had only one employee for five months, two employees for eleven months, and three employees for nineteen months.

The court determined that these facts reasonably raised questions about whether Drishticon was operating as a business, whether Radhakrishnan had subordinates, and whether her role involved qualifying managerial work. The court also noted that Drishticon said her foreign and United States duties were the same, while the submitted job descriptions primarily described duties she would perform in the United States. The court found that USCIS considered the evidence Drishticon identified and made a rational decision based on the record.

Continuous business requirement. The petition also required proof that the prospective United States employer had been doing business for at least one year and was the same employer, subsidiary, or affiliate of the overseas employer. “Doing business” meant the regular, systematic, and continuous provision of goods or services.

For Drishticon India, USCIS relied on limited staffing, the absence of employees during a site visit, and payroll and tax forms that were contradictory, appeared fabricated, or were unauthenticated. USCIS acknowledged that Drishticon had submitted significant evidence of business dealings and that the Indian company still existed. The court nevertheless held that relevant evidence supported USCIS’s conclusion, even though the evidence could support another rational interpretation.

For Drishticon United States, USCIS cited the lack of independent, objective, verified, or certified documents. The record contained contracts, tax forms, invoices, payroll records, and evidence of three active Wells Fargo accounts, but many documents were incomplete, unverified, or insufficient to establish regular, systematic, and continuous business activity. The court concluded that the bank accounts might show banking transactions but did not establish the required level of business activity.

Disposition

The court denied Drishticon’s motion for summary judgment and granted USCIS’s cross-motion for summary judgment. The clerk was directed to enter judgment in favor of USCIS and close the case.