UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DMAX, LTD., LLC, et al.,

Plaintiffs,

vs.

U.S. DEPARTMENT OF HOMELAND 

SECURITY, et al.,

Defendants.

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Case No. 3:17-cv-00429

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

“Experience is the teacher of all things,” as Julius Caesar observed,2 but work 

experience will not always gain an immigrant or alien lawful permanent residence in the 

United States. Plaintiff Tetsuya Onozato, a Japanese citizen, and his employer, Plaintiff 

DMAX, LTD., LLC (a manufacturer of diesel engines), encountered this situation when 

Defendants denied the I-140 Immigrant Petition DMAX filed on Mr. Onozato’s behalf.

Plaintiffs bring the instant case claiming that Defendants arbitrarily and 

capriciously denied DMAX’s I-140 Petition in violation of the Administrative Procedures

Act. Id. at 2. They seek declaratory relief establishing that Defendants’ decision was 

arbitrary and capricious (1) by irrationally deviating from U.S. Citizenship and 

Immigration Service’s policy and procedure, and (2) in holding Plaintiffs to a higher 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

2 Commenaril de Bello Civili (Commentaries on the Civil War), 2.8 (50 BCE).
2

evidentiary burden and imposing novel evidentiary requirements on them in excess of 

statutory jurisdiction, authority, or limitation. Plaintiffs also seek injunctive relief 

requiring Defendants to reopen the administrative proceedings concerning Mr. Onozato. 

(Doc. #1, PageID #12).

The case is presently before the Court upon Defendants’ Motion to Dismiss 

Plaintiffs’ Complaint under Fed. R. Civ. P. 12(b)(6) and the parties’ related briefing. 

(Doc. #s 24, 27, 31).

II. Background

Because Defendants seek a Rule 12(b)(6) dismissal, the Court accepts as true the 

Complaint’s well-pleaded factual allegations, construes the Complaint in Plaintiffs’

favor, and draws all reasonable inferences in Plaintiffs’ favor. Bickerstaff v. Lucarelli, 

830 F.3d 388, 396 (6th Cir. 2016). Although “the court primarily considers the 

allegations in the complaint..., matters of public record, orders, items appearing in the 

record of the case, and exhibits attached to the complaint, also may be taken into 

account.” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (citation and 

emphasis omitted). Proceeding in this manner reveals the following.

A. DMAX’s Application for Certification

Plaintiffs face a very difficult immigration problem in light of a single key fact

they acknowledge in their Complaint: Mr. Onozato “does not hold a bachelor’s degree

....” (Doc. #1, ¶ 20). This problem developed when, after employing Mr. Onozato as a 

Maintenance Engineer for several years (at least), DMAX decided to help him secure a 

professional employment-based visa, known as an EB-3 visa. See Doc. #1, PageID #s 
3

37, 43-44, 78, 83. DMAX’s first task in securing this professional visa was to apply for 

and obtain certification from the U.S. Department of Labor. See 20 C.F.R. § 656.17(a)(1)

(“[A]n employer who desires to apply for a labor certification on behalf of an alien must 

file a completed Department of Labor Application for Permanent Employment 

Certification form (ETA Form 9089).”). To obtain certification, DMAX needed to 

“demonstrate to the [Department of Labor] that no U.S. worker is available to fill the 

position and that, by filling the position with an alien worker, the wages and working 

conditions of similarly employed domestic workers are not adversely affected.” 

Sunshine Rehab Services, Inc. v. U.S. Citizenship and Immigration Services, No. 09-

13605, 2010 WL 3325442, at *2 (E.D. Mich. Aug. 20, 2010) (discussing 8 U.S.C. § 

1182(a)(5)(A)).

In December 2015, DMAX submitted to the Department of Labor the required 

ETA Form 9089 Application for Permanent Employment Certification on Mr. Onozato’s 

behalf. (Doc. #1, PageID #s 32-45). In the Application DMAX described its attempts to 

recruit a professional Maintenance Engineer other than Mr. Onozato. DMAX also 

explained that it needed to hire a Maintenance Engineer with the minimum education of 

something “other” than a bachelor’s degree or any level of educational degree (from high 

school to doctorate). Id. at 33. The something “other,” as DMAX put it, was a 

“Bachelor’s degree equivalent as determined by credentials agency[.]” Id. at 34. DMAX 

also needed its Maintenance Engineer to have “96 months of progressively advanced 

experience of controls systems used in Japanese machine tools.” Id. DMAX made clear 
4

in its Application that Mr. Onozato had a combination of education and work experience

sufficient to qualify him to be its Maintenance Engineer. Id. at 37.

DMAX further reported in its Application that it had offered Mr. Onozato the 

position of Maintenance Engineer, id. at 35; that this was a “professional occupation,”

id.; that Mr. Onozato’s bachelor’s degree equivalent was satisfied by the combination of 

his engineering studies at the University of Florida and his experience while working for 

DMAX in a position substantially comparable to that of Maintenance Engineer, id. at 37;

and that it currently employed Mr. Onozato. DMAX recounted that Mr. Onozato’s 

former employer (Isuzu Motors) had assigned him to work at DMAX as Maintenance 

Engineer from 2005 to 2011. Id. at 38. Mr. Onozato’s work during that time required 

him to engage in many specialized activities as Maintenance Engineer. DMAX’s

Application explains:

Mr. Onozato was assigned for North America Engine Project at 

DMAX-Ltd as a Maintenance Engineer to advise the Crankshaft Line; 

provided engineering support for the daily production activities as an adviser 

for the Crankshaft line; supported the Maintenance members’ skills 

improvement and machine repairs; created maintenance procedure manuals; 

negotiated with Japanese machine makers for machine issues; worked on 

Block, Crank, Connecting Rod Line Machines: NTC, Nissin, Toyoda, 

Nachi, Marposs, Dowa, JGC, Fanuc, and Omron. Also involved in training 

EST, MST, GL; identify and manage repair, rebuild, replace projects and 

provide input to MTTR, MTBF, spare parts, operating costs[.]

(Doc. #1, PageID #44).

DMAX’s Application also set forth Mr. Onozato’s earlier work experience (from 

1994 to 2004) with other employers, noting that he worked in maintenance and 

machinery repair. During that time, Mr. Onozato earned “qualifications” as a “Level 2 
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electronic equipment assembly technician qualification” and a “Level 2 maintenance 

electrical system qualification.” Id. at 45.

In May 2016, the Department of Labor certified DMAX’s Application. Id. at 28. 

This means, in Plaintiffs’ view, that Mr. Onozato’s “sixteen years of work experience..., 

has been certified by the Department of Labor to be the equivalent of a U.S. bachelor’s 

degree, or its foreign equivalent.” Id. at ¶20. Whether this is a correct understanding of 

the Department of Labor’s certification is central to the parties’ present dispute.

B. DMAX’s USCIS I-140 Petition 

Two months later, with its Department of Labor Certification in hand, DMAX 

turned to the U.S. Citizenship and Immigration Services (USCIS) by filing an I-140 

Petition For An Alien Immigrant Worker on Mr. Onozato’s behalf. Its Petition asked 

USCIS to grant Mr. Onozato a professional EB-3 visa. DMAX supported its I-140 

Petition not only with the Department of Labor certification but also with an evaluation 

written by James Klausner, Ph.D., Professor of Mechanical and Aerospace Mechanical 

Engineering at the University of Florida. (Doc. #1, PageID #s 86-90). Dr. Klausner

wrote, in part:

“It is my opinion that the position of Maintenance Engineer is a specialty 

position, and the nature of the specific duties are so specialized and complex 

that the knowledge required to perform these duties is usually associated with 

a[n] attainment of a minimum of a bachelors degree in Mechanical 

Engineering, or a related field. Additionally, Mr. Onozato is, without a 

doubt, well-suited for the position of Maintenance Engineer having achieved 

the equivalent of a Bachelor of Science degree in Mechanical Engineering.”

Id. at ¶21 (quoting Exhibit F, PageID #s 89-90).
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In April 2017, a USCIS Director denied DMAX’s I-140 Petition based on its 

conclusion that the Department of Labor’s certification “cannot support the requested 

immigration visa classification.” (Doc. #1, PageID #19). The Director reasoned that 

DMAX’s description of a Maintenance Engineer required “something less than a United 

States bachelor’s degree (or its foreign equivalent) ... [and] does not qualify as a 

profession.” Id. at 18.

DMAX appealed the Director’s decision to the USCIS’s Administrative Appeals 

Office (AAO). Id. at PageID #s 6, 22-26. The AAO’s decision indicates that DMAX did 

not argue that Mr. Onozato’s education met or equaled the requirements for a 

“professional” classification. DMAX instead sought succor in the “skilled worker” 

classification. The AAO responded negatively:

[T]he Petitioner [DMAX] asserts that the Director should have considered 

the petition under the requirements for skilled worker classification and 

approved the petition for the classification. We do not agree. In part 2 of the 

Form I-140, the Petitioner checked box at 1.e stating that the petition was 

being filed for a professional. The Petitioner did not check box at 1.f stating 

that the petition was being filed for a skilled worker. A Petitioner may not 

make material changes to a petition already filed to make it conform to 

USCIS requirements for eligibility and approval. See Matter of Izummi, 22 

I & N Dec. 169 (Assoc. Comm’r 1998). Therefore, the Director was correct 

in not considering the alternative classification of skilled worker now 

claimed by the Petition on appeal.

(Doc. #1, PageID #24).

DMAX also tried to convince the AAO that the Director should have sent a 

Request For Evidence if there was uncertainty as to which classification DMAX was 

applying for. Id. This argument failed in the AAO. The AAO observed that DMAX 

checked a single box in its I-140 Petition that “is only for a professional...,” and DMAX 
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did not check the box for “skilled worker.” Id. at 24-25. This, the AAO found, left 

“USCIS not unsure about which classification category the Petitioner was applying for, 

and there was no issue to clarify with an RFE [Request For Evidence].” Id. at 25.

In conclusion, the AAO held the Department of Labor’s certification did not 

establish that Mr. Onozato qualified for a professional visa “because the terms of the 

labor certification permit an individual to qualify for the job with less than a U.S. 

baccalaureate degree or foreign equivalent degree....” Id. at 25. The AAO further found 

that Mr. Onozato does not have a bachelor’s degree or foreign equivalent degree “as 

required to be eligible for classification as a professional.” Id.

Although the AAO denied DMAX’s Petition in November 2017, Plaintiff alleges 

that the USCIS granted Mr. Onozato an H1-B visa on December 1, 2017. Plaintiffs’ 

Complaint does not describe the specific category of this H1-B visa. (Doc. #1, ¶ 23). 

Regardless, an H1-B visa may be granted to “an alien ... to come to the United States 

temporarily to perform services or labor for, or to receive training from, an employer, if 

petitioned for by that employer....” 8 C.F.R. § 214.(h)(1); see 8 U.S.C. § 101(a)(15).

Mr. Onozato’s H1-B visa turns out to be rather slippery because, as Plaintiffs explain, 

Mr. Onozato “is now at the end of the 6 year H1[-]B visa status...,” (Doc. #1, ¶6), and 

the “approval [of his H1-B visa] is dependent on the approval of Plaintiffs’ I-140 petition. 

Without the I-140 petition approval, [Mr.] Onozato’s legal status in the United States will 

expire and he will be forced to leave the country.” Id. at ¶23.

III. Rule 12(b)(6) And The APA

To survive Defendants’ Rule 12(b)(6) Motion, DMAX’s Complaint “must contain 
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(1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic

recitation of a cause of action’s elements,’ and (3) allegations that suggest a ‘right to 

relief above a speculative level.’ ” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 

488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 

S.Ct. 1955 (2007)). A Complaint must also contain “more than mere ‘labels and 

conclusions....’ ” Stein v. HHGREGG, Incorporated, 873 F.3d 523, 528 (6th Cir. 2017)

(quoting, in part, Twombly, 550 U.S. at 555 (2007)).

The Administrative Procedures Act provides judicial relief from a final 

administrative decision in limited circumstances. “The reviewing court shall ... hold 

unlawful and set aside agency action, findings, and conclusions found to be--arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 

706(2)(A).

An agency decision is arbitrary and capricious if the agency fails to examine 

relevant evidence or articulate a satisfactory explanation for the 

decision. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 42–43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The reviewing court 

“may not supply a reasoned basis for the agency’s action that the agency 

itself has not given.” Id. at 43, 103 S.Ct. 2856. However, “[e]ven when an 

agency explains its decision with less than ideal clarity, a reviewing court 

will not upset the decision on that account if the agency’s path may 

reasonably be discerned.” Alaska Dep't of Env't Conservation v. EPA, 540 

U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004).

Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006).

IV. Discussion

A. Exhaustion and Waiver

Defendants contend that Plaintiffs’ Complaint should be dismissed under Rule 
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12(b)(6) because Plaintiffs failed to exhaust their administrative remedies. This argument

implies, at a minimum, that Plaintiffs either skipped a step in the immigration process or 

failed to pursue a potentially available administrative remedy before seeking judicial 

relief. Defendants, however, do not point to a particular administrative step or potential 

remedy that Plaintiffs missed or failed to exhaust before bringing this case. As a result, 

there is no basis for concluding that Plaintiffs failed to exhaust their administrative 

remedies in a manner that bars them from seeking judicial review. Cf. EG Enterprises, 

Inc. v. Department of Homeland Sec., 467 F.Supp.2d 728, 732 (E.D. Mich. 2006) (“there 

is no statutory requirement that a petitioner exhaust its administrative remedies before 

filing suit in United States District Court, and the ‘Supreme Court has recognized that, in 

cases governed by the [APA], section 10(c) of the APA, 5 U.S.C. § 704, ... limits the 

discretion of courts to impose exhaustion requirements.’” (brackets in original; citations 

omitted)).

Defendants fare somewhat better, yet ultimately without success, when arguing, 

“A party may not challenge agency action that was not presented to the agency during 

administrative proceedings.” (Doc. #24, PageID #217). Defendants reason that because 

Plaintiffs failed to raise their present arguments in the AAO, they have waived their 

present arguments.

Defendants’ argument—properly read as invoking “issue exhaustion”—is born 

from waiver: “The administrative waiver doctrine, commonly referred to as an issue 

exhaustion, provides that it is inappropriate for courts reviewing agency decisions to 

consider arguments not raised before the administrative agency involved.” Coalition for 
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Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 461-62 (6th Cir. 2004). 

Issue exhaustion thus relates to individual issues not raised before an agency rather than 

some broader judicial-review-defeating exhaustion problem. “Courts decline to consider 

issues not raised before an agency because to do otherwise would ‘deprive the [agency] 

of an opportunity to consider the matter, make its ruling, and state the reasons for its 

action.’” Id. at 462 (quoting, in part, Unemployment Comp. Comm'n v. Aragon, 329 U.S. 

143, 155, 67 S.Ct. 245 (1946)).

It should be noted that the parties’ briefing on the waiver issue is overly concise.

As will be seen in the next paragraph, Defendants identify only a single argument that 

Plaintiffs allegedly failed to raise in the AAO. Plaintiffs’ approach does not mention that 

single argument. They instead rely on the discretionary nature of administrative 

exhaustion discussed in Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 599 (6th Cir. 

2014). See Doc. #27, PageID #s 240-41. The parties would have done well to further 

develop their respective analyses on the waiver issue. This aside, Plaintiffs’ Complaint is 

the focal point of the parties’ present Rule 12(b)(6) dispute, and a return there is more 

worthwhile.

Plaintiffs’ Complaint contains a section titled “Legal Analysis” in which they 

challenge—on several grounds—the AAO’s finding that Mr. Onozato did not qualify for 

a professional visa. (Doc. #1, ¶s 25-35). Although Plaintiffs might or might not have 

waived some of these contentions, it is unnecessary to delve into each to see if it is 

waived because Defendants identify only a single argument that Plaintiffs allegedly failed 

to raise in the AAO. Defendants explain, “DMAX now reverts to its argument that [Mr.]
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Onozato’s experience is equivalent to a U.S. bachelor’s degree. The Court should not 

resolve an issue that the AAO ... did not have an opportunity to address.” (Doc. #24, 

PageID #218).

The AAO’s ultimate “Conclusion” (actually two conclusions) states:

The labor certification does not support the classification of professional, as 

requested in the Form I-140 petition, because the terms of the labor 

certification permit an individual to qualify for the job with less than a U.S. 

baccalaureate or foreign equivalent degree. Furthermore, the record 

indicates that [Mr. Onozato] does not have a bachelor’s degree or a foreign 

equivalent degree, as required to be eligible for professional classification.

(Doc. #1, PageID #25).

Defendants’ waiver argument shaves too much from the AAO’s decision. The 

AAO plainly found that Mr. Onozato does not have the education level to be eligible for 

professional classification. See id. The AAO, moreover, knew that DMAX was relying 

on Mr. Onozato’s work experience and education to qualify him for the professional 

classification. Indeed, the something “less than” to which AAO referred meant Mr. 

Onozato’s work experience combined with his less than a baccalaureate education. The 

AAO, moreover, described some of Mr. Onozato’s work experience and acknowledged

the professor’s opinion that Mr. Onozato’s “16 years of experience and professional 

training in mechanical engineering was equivalent to a bachelor of science degree in 

mechanical engineering from an accredited college or university in the United States.”

Id. Because the AAO was well aware that DMAX sought to qualify Mr. Onozato under 

the professional classification by dint of his education and work experience, it was not 

deprived of the opportunity to consider this possibility, make its ruling, and state its 
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reasoning. See Coalition for Gov’t Procurement, 365 F.3d at 462. As a result, 

Defendants’ waiver argument lacks merit.

Even if the opposite were true, it is not all that clear that Plaintiffs presently assert 

Plaintiffs’ claim as Defendants frame it—i.e., that the AAO’s decision was arbitrary and 

capricious because Mr. Onozato’s work experience plus education qualify him for a 

professional visa. Plaintiffs do not raise this argument in their Response (Doc. #27), and 

their claims as pled in their Complaint do not seem to do so either. See Doc. #1, ¶s 37-

39. 

In their Response, Plaintiffs report that their Complaint alleges, “Defendants 

acted arbitrarily and capriciously in deviating from established USCIS policy and 

regulations regarding the adjudication of I-140 petition.” (Doc. #27, PageID #238) 

(citing Doc. #1, ¶s 37-39). They next explain, “In sum, Plaintiffs alleged that Defendant 

held Plaintiffs to a higher evidentiary burden that the standard and required 

‘preponderance of the evidence determined by USCIS policy and regulation. Plaintiff 

also alleged different legal standards created by two agencies within the Department of 

Homeland Security created this very legal schism for which they now seek relief.” Id. 

(citing Doc. #1, ¶s 37-39). Neither of these arguments indicate that Plaintiffs are 

presently asserting that Mr. Onozato’s is entitled to a professional visa based on his work 

experience plus education or that the AAO’s conclusion otherwise was arbitrary and 

capricious. And, the relief Plaintiffs seek does not include a declaration that Plaintiff 

qualifies for a professional visa by his education and work experience. See Doc. #1, ¶s 

40-47.
13

Accordingly, Defendants’ waiver contentions lack merit. Regardless, even if

waiver bars Plaintiffs’ present claims, it causes no harm or prejudice to Defendants to 

review Plaintiffs’ Complaint under Rule 12(b)(6) because Plaintiffs’ claims fail as a 

matter of law.

B. Arbitrary and Capricious

Defendants contend that a Rule 12(b)(6) dismissal is warranted because Plaintiffs’ 

Complaint does not state a facially plausible violation of the Administrative Procedures 

Act. Defendants reason that in the circumstances described in the Complaint, “no relief 

can be granted by this Court.” (Doc. #24, PageID # 218).

Plaintiffs contend that Rule 12(b)(6) dismissal is unwarranted because they “have 

stated federal claims upon which relief may be granted, highlighting the schism between 

two different interpretations of immigration law, by two agencies under purview of the 

U.S. Department of Homeland Security.” (Doc. #27, PageID #s 241). This section of 

Plaintiffs’ Response to Defendants’ Rule 12(b)(6) Motion does not go much further. See

id. at 241-42. They instead rest on “notice pleading,” and its “requirement of only a 

concise statement rather than evidentiary facts.” Id. at 242. And they conclude that their 

Complaint “particularly states facts that support each element of Plaintiffs’ claims and 

thus withstands Defendants’ Motion to Dismiss.” Id. 

This Court may review an agency’s final decision under the Administrative 

Procedure Act. 5 U.S.C. § 706(2)(A). An administrative decision must be set aside if it 

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the 

law.” 5 USC § 706(2)(A). “An agency decision is arbitrary and capricious if the agency 
14

fails to examine relevant evidence or articulate a satisfactory explanation for the 

decision.” Bangura v. Hansen, 434 F.3d 487, 502 (6th Cir. 2006) (citation omitted). 

Fleshing this out a bit, the agency’s decision is arbitrary and capricious when:

[T]he agency has relied on factors which Congress has not intended it to 

consider, entirely failed to consider an important aspect of the problem, 

offered an explanation for its decision that runs counter to the evidence 

before the agency, or is so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.

Integrity Gymnastics & Pure Power Cheerleading, LLC v. USCIS, 131 F.Supp.3d 721, 

726 (S.D. Ohio 2015) (Marbley, D.J.) (quoting, in part, Motor Vehicle Mfrs. Assoc. v. 

State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 

(1983)).3

The AAO’s decision was not arbitrary and capricious for several reasons. First, 

the INA permits professional EB-3 visas to issue to “[q]ualified immigrants who hold a 

baccalaureate degree and who are members of the professions.” 8 U.S.C. §

1153(b)(3)(A)(ii). Immigration regulations define a “professional” as “a qualified alien 

who holds at least a United States baccalaureate degree or foreign degree equivalent.” 8 

C.F.R. § 204.5(l)(2). Neither the INA nor the regulatory definition of “professional” 

mention or allow work experience or training plus education to qualify an immigrant for 

the professional EB-3 visa. Plaintiffs acknowledge in their Complaint that Mr. Onozato 

does not hold a bachelor’s degree (Doc. #1, ¶ 20), as the AAO correctly observed, id. at 

 3 Although an agency’s factual findings are reviewed under the substantial-evidence standard, see 

Integrity Gymnastics, 131 F.Supp.3d at 726, Plaintiffs’ Response does not challenge the AAO’s factual 

findings.
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PageID #25. Consequently, it was not arbitrary and capricious for the AAO to conclude 

that Mr. Onozato was ineligible for a professional visa. Cf. Digital Realty Trust, Inc. v. 

Somers, __U.S.__, 138 S.Ct. 767, 776-77 (2018) (“‘When a statute includes an explicit 

definition, we must follow that definition,’ even if it varies from a term’s ordinary 

meaning.” (citation omitted)).

Second, neither the INA nor its accompanying regulations provide a means to 

qualify for a professional visa by work experience or training plus education less than a 

bachelor’s degree. The regulations point instead to a U.S. bachelor’s or foreign-degree

mandate to qualify for a professional visa by requiring “evidence that the alien holds a 

United States baccalaureate degree or a foreign equivalent degree,” which “shall be in the 

form of an official college or university record showing the date the baccalaureate was 

awarded and the area of concentration of study.” 8 C.F.R. § 204.5(l)(3)(ii)(C). The 

AAO, moreover, correctly cited two cases for the rule that a single four-year bachelor’s 

degree or its foreign equivalent is statutorily required to qualify for a professional visa. 

(Doc. #1, PageID #24 (citing SnapNames.com, Inc. v. Chertoff, No. 06-65-MO, 2006 WL 

3491005, at *10 (D. Or. 2006) (“it is within the agency’s authority to conclude a single 

equivalent degree is required [to secure a professional visa].”); Maramjaya v. U.S. 

Citizenship and Immigration Services, No. 06-2158, 2008 WL 9398947, at *6 (D.D.C.

2008) (“The Court finds entirely reasonable USCIS’s determination that a four-year 

degree was required [for a professional visa].”). Because the AAO’s decision was in line 

with this single-degree rule and held true to the applicable regulation, its decision was not 

arbitrary and capricious
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Third, Plaintiffs’ arguments do not demonstrate that the AAO’s decision was 

arbitrary and capricious. Plaintiffs contend in their Complaint that two decisions—

Matter of Ajani, 12 I. & N. 649, 1967 WL 14098 (Reg’l Commr’s 1967) and Matter of 

Gowani, 13 I. & N. Dec. 8, 1968 WL 14031 (Reg’l Comm’r 1968)—identify law that is 

contrary to the AAO’s decision. In Ajani, the petitioner was a teacher who lacked 

academic courses or actual teaching experience. Yet, he qualified as a “teaching 

professional” based on his “high education in the field[s] of Arabic language and 

journalism..., and his many years of actual work experience in related fields.” 12 I. & N. 

649, 1967 WL 14098. In Gowani, the Board of Immigration Appeals found, 

“Considering the petitioner’s high education in the field of Arabic language and 

journalism and many years of actual work experience in related fields, ... the petitioner is 

qualified for the preference classification he seeks.” 13 I. & N. Dec. 8, 1968 WL 14031.

Yet, neither Ajani’s nor Gowani’s inclusion of work experience as consideration in 

determining whether the petitioner qualified as a member of the professions survive the 

Immigration and Nationality Act of 1990, Pub. L. No. 101-649 (1990) and its 

accompanying regulations. As previously explained, current immigration law explicitly 

requires a bachelor’s degree or foreign equivalent and does not permit work experience 

combined with some education to qualify a non-U.S. citizen for a professional visa. See

8 U.S.C. § 1153(b)(3)(A)(ii); see also 8 C.F.R. § 204.5(l)(3)(ii)(C).

According to Plaintiffs, the Department of Labor’s certification conclusively 

established that Mr. Onozato’s work experience and education qualify him for a 

professional visa. They see a schism between the different language the Department of 
17

Labor and the USCIS use in this situation. They have a point about the different 

language each agency uses, but it does not help them show the AAO’s decision was 

arbitrary and capricious. First, their point.

Plaintiffs rely on a Department-of-Labor regulation that permits certification based 

on certain “alternative requirements....” (Doc. #1, PageID #9). The regulation instructs:

(i) Alternative experience requirements must be substantially equivalent to 

the primary requirements of the job opportunity for which certification is 

sought; and

(ii) If the alien beneficiary already is employed by the employer, and the alien 

does not meet the primary job requirements and only potentially qualifies for 

the job by virtue of the employer’s alternative requirements, certification will 

be denied unless the application states that any suitable combination of 

education, training, or experience is acceptable.

20 C.F.R. § 656.17(h)(4). Relying on this, Plaintiffs argue:

Plaintiff [Mr.] Onozato, who is currently employed by Plaintiff DMAX, does 

not meet the primary job requirements and only potentially qualifies for the 

job by virtue of the alternative requirements. Due to this, [Department of 

Labor] granted certification because the application specifically stated that 

Plaintiff DMAX would accept any equally suitable combination of education 

and/or experience, which would qualify an applicant to perform the duties of 

the job offered.

(Doc. #1, ¶30). 

Yet, accepting that the USCIS did not follow this Regulation when determining 

that Mr. Onozato did not qualify for the professional visa does not demonstrate that the 

AAO’s decision was arbitrary and capricious. Plaintiffs cite no authority that finds error 

when an administrative agency follows its own regulations rather than the regulation of 

another agency.
18

It is also a fruitful line of thinking to ask, “What did the Department of Labor 

certify?” Plaintiffs maintain that it certified him as qualified for the professional visa 

based on 20 C.F.R. § 656.17(h)(4) and the alternative requirements DMAX described in 

its Application—namely, his work experience amounting to “96 months of progressively 

advanced experience of controls systems used in Japanese tools.” Plaintiffs find this 

experience “was substantially equivalent to the primary requirement of bachelor’s degree, 

or its foreign equivalent, plus experience.” (Doc. #1, ¶30).

The AAO rejected this contention, finding:

The labor certification does not support the classification of professional, as 

requested in the Form I-140 petition, because the terms of the labor 

certification permit an individual to qualify for the job with less than a U.S. 

baccalaureate degree or foreign equivalent degree....

(Doc. #1, PageID #25). In other words, in the AAO’s view, the fact that the Department 

of Labor certified DMAX’s Application did not qualify Mr. Onozato for a professional 

visa under the USCIS’s regulation. This was not arbitrary and capricious because the 

functions the Department of Labor and the USCIS perform in the professional-visa 

process differ significantly. The Department Labor’s makes only an occupational 

assessment of an employer’s Application for a professional visa. Its task is to assess (1)

whether there are insufficient workers who are able, willing, and qualified to perform the 

skilled or unskilled job at issue, presently the maintenance-engineer job DMAX 

described in its Application; and (2) whether employing Mr. Onozato “will not adversely 

affect the wages and working conditions of workers in the United States similarly 

employed.” 8 U.S.C. § 1182(a)(5)(I). Congressional purpose, here, is to maximize the 
19

number of U.S. jobs available to U.S. citizens. “[T]he plain language, as well as the 

legislative history of..., the labor certification requirements ... reflect a clear 

congressional concern for protecting the interests of American labor over those of foreign 

workers.” Pai v. U.S. Citizenship and Immigration Services, 810 F.Supp.2d 102, 111 

(D.D.C. 2011). The Department of Labor’s application form addresses this concern by 

seeking from the employer details from the available job and information about the 

employer’s efforts to advertise it and thus potentially hire an American worker instead of 

a foreign worker. See Doc. #1, PageID #s 65-68.

In contrast, the USCIS has a gatekeeper function in this situation. It may issue 

professional visas, but it may not exceed the professional-visa quota that Congress sets. 

See 8 U.S.C. § 1153(b)(3)(A). No shock, then, that the USCIS has narrow qualification 

criteria—a bachelor’s degree or foreign-equivalent degree—for securing a professional 

visa.

Given the different administrative functions these two agencies perform, and the 

USCIS’s narrow qualifying criteria for a professional visa, the AAO correctly recognized 

that the Department of Labor’s “certification does not support the classification of 

professional..., because the terms of the labor certification permit an individual to qualify 

for the job with less than a U.S. baccalaureate degree or foreign equivalent degree.” 

(Doc. #1, PageID #25). As a result, it was not arbitrary and capricious for the AAO to 

deny DMAX’s I-140 Petition on this basis.

Turning to Dr. Klausner’s expert opinion, Plaintiffs contend that his opinion 

should have qualified Mr. Onozato for a professional visa. Although Dr. Klausner
20

strongly supported Mr. Onozato’s ability to work as a Maintenance Engineer by dint of 

his education and work experience, Dr. Klausner’s opinion conflicts with the 

qualification criteria for a professional visa. Again, without a bachelor’s degree, Mr. 

Onozato’s work experience, training, and education did not qualify him for a professional 

visa under 8 U.S.C. § 1153(b)(3)(A)(ii). Consequently, it was not arbitrary and 

capricious for the AAO to reject Dr. Klausner’s opinion.

Construing Plaintiffs’ Complaint in their favor, they also look to 8 U.S.C. §

101(a)(32) and 8 C.F.R. § 204.5(k)(2) for help in establishing that Mr. Onozato qualifies 

for the professional visa. This immigration statute and regulation define the term 

“profession” to include a list of jobs, including “engineers.” “Thus, a maintenance 

engineer position is already recognized as a professional occupation,” according to 

Plaintiffs. (Doc. #1, ¶ 27). Plaintiffs do not develop this argument further or provide 

supporting citations. 

Again, the criteria needed to obtain a professional visa required Mr. Onozato to 

hold a bachelor’s degree or foreign-equivalent degree. This remains so regardless of 

DMAX’s job title, “Maintenance Engineer.” Additionally, DMAX described the job 

qualifications of its Maintenance Engineer to require something other than a bachelor’s 

degree, meaning work experience—especially 96 months of progressively advanced 

experience of controls systems used in Japanese tools. Consequently, the fact that 

DMAX included the word “engineer” in the job title does not satisfy the criteria for a 

professional visa.

In Plaintiffs’ remaining effort to show that the AAO’s decision was arbitrary and 
21

capricious, they argue that the AAO held them to a higher “evidentiary standard” than the 

preponderance-of-evidence standard required by USCIS policy and regulations. They 

explain, “A review of the Certified Administrative Record will establish that both the 

USCIS and AAO did not consider the relevant factors and did not articulate a rational 

connection between the facts found and the conclusions made in the decision.” (Doc. #1, 

¶38). Plaintiffs cite Matter of Chawathe, 25 I. & N. Dec. 369, 2010 WL 4144591 (Oct. 

20, 2010) (citation omitted) to support that the USCIS must apply the preponderance-ofevidence standard and that this standard requires a visa petitioner to demonstrate “that the 

applicant’s claim is ‘probably true,’ where the determination of ‘truth’ is made based on 

the factual circumstances of each individual case.” Id. at 375-76, 2010 WL 4144591, *6 

(citing, in part, Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (other citations 

omitted)). Assuming Chawathe is correct on these points, Plaintiffs have not alleged 

plausible facts showing that the AAO derived a higher than preponderance-of-evidence 

standard from a particular USCIS policy or regulation. See Doc. #1, ¶s 30-35, 37-39; 

Doc. #27, PageID #s 240-42. They also do not indicate what factors the AAO failed to 

consider or why the rationale it provided failed to contain a rational connection between 

the facts and its conclusions. See id. At best, Plaintiffs’ Complaint raises only 

conclusory assertions without sufficiently specific information to support a plausible 

claim that the AAO’s decision was arbitrary and capricious regarding Plaintiffs’ burden 

of proof, the factors it failed to consider, or its rationale. See Stein, 873 F.3d at 528 (“

‘labels and conclusions’ ... will not do” under Rule 12(b)(6)).

Accordingly, for all the above reasons, Defendants’ Motion to Dismiss is well 
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taken.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendants’ Motion to Dismiss (Doc. #24) be GRANTED; and

2. The case be terminated on the docket of the Court.

January 7, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. A party may respond to another party’s objections within 

FOURTEEN days after being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).