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APA claims are not subject to exhaustion requirements unless specifically required by statute or regulation. Where the APA applies, an appeal to 'superior agency authority' is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. On the other, Section 704 of the APA states in relevant part that "agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. Because the APA provides a limited cause of action to review "final agency action" without such agency action a plaintiff would not have a claim under the APA. Moreover, under the APA, a court must set aside an agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
The H-1B visa program permitted employers to temporarily employ foreign, nonimmigrant workers in specialty occupations. Before obtaining a visa, an employer must obtain certification from the Department of Labor that it has filed a labor condition application in the specific occupational specialty. The employer must then file an H-1B visa petition on behalf of the alien worker, which showed that the proffered position satisfied the statutory and regulatory requirements. A specialty occupation was defined as an occupation that required theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in a specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. Defendant U.S. Citizenship and Immigration Services (USCIS) regulations have further defined four criteria, each sufficiently independent, to determine whether a profession qualifies as a specialty occupation. The petitioner bore the burden of proving that his or her occupation fell within one of the four categories. Plaintiff LexisNexis was an umbrella corporation with several key markets. LexisNexis USA was an unincorporated division of plaintiff RELX Inc. Plaintiff was a provider of comprehensive information and business solutions to professionals in a variety of areas- legal, risk management, corporate, government, law enforcement, accounting, and academic. Plaintiff Subhasree Chatterjee worked as a Data Analyst in plaintiff’s engineering Center for Excellence and was on the United States on a F-1 student visa with STEM OPT (Optional Practical Training). Plaintiff employee was the subject of the H-1B petition filed by plaintiff employer and was directly impacted by the agency decision denying her an H-1B visa. Plaintiffs brought this action against defendants Kathy Baran, Director of the California Service Center, USCIS, U.S. Department of Homeland Security, and other government officials and entities under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Plaintiffs alleged that defendants violated the Administrative Procedure Act (APA) when they denied plaintiff’s H-1B petition on behalf of plaintiff employee. Pending before the Court were plaintiffs' motion for summary judgment seeking an order from this Court directing USCIS to grant the H1-B petition and to place it on H1-B visa status. Defendants filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim.
Having considered the submissions of the parties, the administrative record, the relevant law, and the arguments of the parties during the motion hearing, the court denied defendants' motion to dismiss and granted plaintiffs' motion for summary judgment. The court ruled that defendants’ argument that the Court lacked jurisdiction because plaintiffs failed to exhaust administrative remedies failed since there was no exhaustion requirement for plaintiffs' claim. APA claims were not subject to exhaustion requirements unless specifically required by statute or regulation. Thus, absent a statutory or regulatory requirement, courts have no authority to require parties to exhaust administrative procedures before seeking judicial review. In this case, there was no requirement that plaintiffs seek an appeal of a denied visa before seeking judicial review. Hence, the motion to dismiss for lack of subject-matter jurisdiction was denied. Moreover, defendant’s motion to dismiss for failure to state a claim was likewise denied as the court ruled that the plaintiffs had sufficiently demonstrated that the agency's attempt to reopen plaintiffs' petition did not render the agency decision nonfinal. Under the circumstances presented, defendants failed to follow its own regulation related to reopening the case, defendants' failure to request any new evidence for the agency to consider, and defendants' failure to provide any reason for why the agency chose to reopen the case, the Court was left with no choice but to conclude that the agency has reopened the case in name only. Thus, the Court found the agency action to be final. Accordingly, Plaintiffs were entitled to the relief sought since defendants' denial of the H1-B petition was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.