United States District Court

District of Nevada 

Nevada Real Estate Corp., and Dakki Law v. Tom Ridge, et. al.

Case No. CV-S-04-0949-RCJ-PAL 

The dispute arose from an H-1B petition filed by the Plaintiff, Nevada Real Estate Corporation, for a non-immigrant worker to fill the titled position “Administrative Service Manager.”  After the USCIS California Service Center denied the petition on the basis that the titled position was not a “specialty occupation” as required for the H-1B nonimmigrant, employment based visa, Plaintiff filed an appeal with the Administrative Appeals Office, which dismissed the Plaintiff’s H-1B petition.  The Plaintiff then filed a complaint with the United States District Court, District of Nevada asking the Court to order the Defendants to issue a favorable decision.  The Court agreed with the Plaintiffs and held that the job duties of the position “Administrative Service Manager” met the standards of law and fact to establish a “specialty occupation.”

On August 7, 2001, the Plaintiff filed the H-1B petition in question asking for an H-1B visa approval for the period of September 15, 2001 to September 1, 2004, which the USCIS denied on September 27, 2001.  In the petition, the duties described for this position included detailed responsibilities in the areas of Planning, Organizing, Leadership, and Controlling.  The Plaintiff attached documentation including management charts, financial documentation, and company statements.  Additionally, the Plaintiff submitted documentation of the beneficiary’s baccalaureate degree in management.  Upon receipt of this petition, the USCIS requested further evidence. The Plaintiff responded with third-party advisory letters from two management consultants, letters from two university business professors, and a letter from a CEO of a competing real estate firm all stating that the duties of this position were that of a “specialty occupation” that requires a degreed person in the management field or a person with an equivalent background.

In the opinion, the Court noted that the USCIS California Service Center did not respond to the Plaintiff’s timely filed Motion to Reopen within 45 days as required by federal regulations and instead waited over a year to make a determination on the H-1B petition. Thus, the Court found the Defendant’s actions to be arbitrary, capricious and abuses of discretion resulting in harm to the Plaintiff.  The Court stated that the employment in question more than met the standard of law and facts given, thereby establishing a “specialty occupation” in the management field.  As relief, the Court ordered, on the basis of equitable tolling, that the USCIS grant the non-immigrant worker a visa non-pro tem from September 15, 2001 to September 31, 2005.