Itserve Alliance, Inc., Advansoft International, Inc., Allied Informatics Inc.,… v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ITSERVE ALLIANCE, INC., ADVANSOFT
INTERNATIONAL, INC., ALLIED INFORMATICS
INC., TECHSTAR CONSULTING SERVICES INC.,
Plaintiffs
ITECH US, INC., SMARTWORKS, LLC, SAXON
GLOBAL, INC., KOLLASOFT INC., 3S BUSINESS
CORP., VLINK INC., LUCID TECHNOLOGIES INC.,
IT DIVISION INC., DBA APEIRO TECHS, RAPIDIT
INC.,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1052
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01190-RTH, Judge Ryan T. Holte.
______________________
Decided: December 10, 2024
______________________
BRAD BANIAS, Banias Law LLC, Charleston, SC,
argued for plaintiffs-appellants. Also represented by
JONATHAN WASDEN, Wasden Law, Burke, VA.
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ITSERVE ALLIANCE, INC. v. US 2
VINCENT DE PAUL PHILLIPS, JR., Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE
HOSFORD, PATRICIA M. MCCARTHY.
______________________
Before CHEN, STOLL, and CUNNINGHAM, Circuit Judges.
STOLL, Circuit Judge.
Plaintiffs seek a refund on the H-1B petitions they filed
on behalf of their foreign national employees already
admitted to and physically present in the United States
under another nonimmigrant classification.1 This appeal
concerns whether Plaintiffs are entitled to this refund.
Plaintiffs appeal the decision of the United States
Court of Federal Claims granting the Government’s cross-
motion for summary judgment. Plaintiffs argue that the
language “an application for admission as a nonimmigrant
under section 101(a)(15)(H)(i)(b) of the Immigration and
Nationality Act (8 U.S.C. [§] 1101(a)(15)(H)(i)(b)) [(“H-
1B”)], including an application for an extension of such
status” excludes applications filed under that same
statutory section to change the status of a nonimmigrant
who is already in the United States—a so-called change of
status petition. Appellants’ Br. 7–8 (emphasis omitted).
We disagree and thus affirm the trial court’s decision.
BACKGROUND
I
The United States offers many different types of visas.
This case involves H-1B visas awarded to
1 We recognize that some parties are listed as
Plaintiffs and others as Plaintiffs-Appellants. We use
Plaintiffs for simplicity.
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ITSERVE ALLIANCE, INC. v. US 3
nonimmigrants—persons who are not citizens or nationals
of the United States—who are sponsored by employers to
work temporarily in qualified specialty occupations. See
8 U.S.C. § 1101(a)(15)(H)(i)(b). Under the H-1B program,
the employer requests a grant of H-1B status on behalf of
the nonimmigrant by filing a Form I-129 petition with the
United States Citizenship and Immigration Service
(USCIS). See 8 U.S.C. § 1184(c)(1); 8 C.F.R. §§ 103.2(a)(1),
214.2(h)(2)(i)(A). These requests can be made for
nonimmigrants located inside or outside of the United
States.
Relevant to this appeal are three types of Form I-129
petitions: (1) initial grant petitions, (2) change of status
petitions, and (3) extension petitions. As the name implies,
initial grant petitions refer to any petition where an
employer requests on behalf of the nonimmigrant an initial
grant of H-1B status. This petition typically involves a
nonimmigrant currently residing outside of the United
States who will then move to the United States to work
temporarily in a qualified position once H-1B status is
granted. However, initial grant petitions also include
situations where the nonimmigrant already resides inside
of the United States but is placed under H-1B status for
the first time. These are change of status petitions. A
change of status petition refers to when an employer
requests on behalf of the nonimmigrant a change of status
from another nonimmigrant classification to classification
under H-1B. Because change of status petitions grant a
nonimmigrant H-1B status for the first time, they are a
sub-category of initial grant petitions. Finally, extension
petitions request an extension of a nonimmigrant’s already
obtained H-1B status. These extension petitions, like
change of status petitions, involve nonimmigrants already
inside the United States.
When the nonimmigrant resides outside the United
States and USCIS approves the H-1B petition, the
nonimmigrant is then generally required to obtain an H-
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ITSERVE ALLIANCE, INC. v. US 4
1B visa from a United States consulate to enter through a
port of entry and request “admission” into the United
States as an H-1B nonimmigrant. See 8 U.S.C.
§§ 1201(a)(1)(B), 1202(c); 22 C.F.R. §§ 41.53(a)(2),
41.101(a). The Immigration and Nationality Act (INA),
8 U.S.C. § 1101 et seq., refers to this process as making an
“application for admission”:
The term “application for admission” has reference
to the application for admission into the United
States and not to the application for the issuance of
an immigrant or nonimmigrant visa.
Id. § 1101(a)(4). And the INA defines the term “admission”:
The terms “admission” and “admitted” mean, with
respect to an alien, the lawful entry of the alien into
the United States after inspection and
authorization by an immigration officer.
Id. § 1101(a)(13)(A).
Along with filing the petition, employers must pay all
requisite fees. 8 C.F.R. § 103.2(a)(1). These requisite fees
include a filing fee and a fraud prevention and detection fee
(the “Fraud Fee”). The Fraud Fee is required with initial
grant petitions, which includes change of status petitions,
as well as employers seeking authorization for an H-1B
nonimmigrant to change employers. 8 U.S.C.
§ 1184(c)(12)(A)(i)–(ii). Separately, if the employer
qualifies as a 50/50 employer,2 then Congress has
2 “50/50 employers” refers to entities employing over
50 employees with over half comprising nonimmigrant
workers in H-1B or L-1 status. See Act of Aug. 13, 2010,
Pub. L. No. 111-230, § 402(b), 124 Stat. 2485, 2487 (2010);
Consolidated Appropriations Act, 2016, Pub. L. No. 114-
113, § 402(g), 129 Stat. 2242, 3006 (2015). Plaintiffs here
are 50/50 employers.
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ITSERVE ALLIANCE, INC. v. US 5
mandated that “the combined filing fee and [Fraud Fee]” is
“increased by $4,000” (the “enhanced fee”) under Public
Law No. 114-113 (“2015 Enhanced Fee Statute”). Under an
earlier statute, Congress mandated that the filing fee and
Fraud Fee were increased by $2,000 for 50/50 employers
through Public Law No. 111-230 (the “2010 Enhanced Fee
Statute,” and collectively, the “Enhanced Fee Statutes”).
The 2010 Enhanced Fee Statute increased, for 50/50
employers, the filing fee and Fraud Fee required to be
submitted with an H-1B “application for admission”:
(b) Notwithstanding any other provision of this Act
or any other provision of law, during the period
beginning on the date of the enactment of this Act
and ending on September 30, 2014, the filing fee
and fraud prevention and detection fee required to
be submitted with an application for admission as
a nonimmigrant under section 101(a)(15)(H)(i)(b)
of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)(b)) shall be increased by $2,000
for applicants that employ 50 or more employees in
the United States if more than 50 percent of the
applicant’s employees are such nonimmigrants or
nonimmigrants described in section 101(a)(15)(L)
of such Act.
Pub. L. No. 111-230, § 402(b) (emphasis added). In 2015,
Congress extended the timeframe for collecting the
enhanced fee under the 2010 Enhanced Fee Statute and
simultaneously increased that fee to $4,000:
(b) Temporary H-1b Visa Fee Increase--
Notwithstanding section 281 of the Immigration
and Nationality Act (8 U.S.C. 1351) or any other
provision of law, during the period beginning on the
date of the enactment of this section and ending on
September 30, 2025, the combined filing fee and
fraud prevention and detection fee required to be
submitted with an application for admission as a
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ITSERVE ALLIANCE, INC. v. US 6
nonimmigrant under section 101(a)(15)(H)(i)(b) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)(b)), including an application for
an extension of such status, shall be increased by
$4,000 for applicants that employ 50 or more
employees in the United States if more than 50
percent of the applicant’s employees are such
nonimmigrants or nonimmigrants described in
section 101(a)(15)(L) of such Act.
Pub. L. No. 114-113, § 402(g) (annotated to show 2015
amendments).
II
In January 2020, Plaintiffs filed a complaint in the
United States District Court for the District of Columbia.
The case was subsequently transferred to the United
States Court of Federal Claims in April 2021. Once in the
Court of Federal Claims, Plaintiffs filed an amended
complaint seeking a declaratory judgment and order
compelling the United States to return the fees that USCIS
unlawfully exacted in violation of the Enhanced Fee
Statutes. In September 2021, Plaintiffs filed a motion for
summary judgment, arguing that USCIS violated the
terms of the Enhanced Fee Statutes by exacting enhanced
fees from 50/50 employers filing change of status petitions,
which, Plaintiffs contend, are not “application for
admission.” In response, the Government filed a cross-
motion for summary judgment, arguing that Congress
intended to apply the enhanced fees to all H-1B petitions
subject to the Fraud Fee, including change of status
petitions.
The Court of Federal Claims denied Plaintiffs’ motion
for summary judgment and granted the Government’s
cross-motion for summary judgment. The trial court found
that “[w]hen the statutory definitions of ‘application for
admission’ and ‘admission’ are used, the result is
incongruous with the text’s imposition of an increased fee,
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ITSERVE ALLIANCE, INC. v. US 7
and the statutory definitions, therefore, must not apply to
the [Enhanced Fee] Statutes.” ITServe All., Inc. v. United
States, 161 Fed. Cl. 276, 300 (2022). As such, the trial court
looked to “[t]he plain language,” which in its view,
“suggests ‘application’ can mean ‘petition,’ as stated in
8 C.F.R § 1.2, and ‘admission’ can mean ‘status,’ as an H-1B
nonimmigrant.” Id. The trial court also found that the
statutory structure of the Enhanced Fee Statutes “supports
USCIS’s authority to impose the increased fee on change of
status petitions because those petitions are already subject
to the fraud fee.” Id. Based on this interpretation, the trial
court concluded that the Government was entitled to
judgment as a matter of law and accordingly granted the
Government’s cross-motion for summary judgment.
Plaintiffs appeal. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
“[A]n illegal exaction occurs . . . when the ‘plaintiff has
paid money over to the Government . . . and seeks return
of all or part of that sum’ that was ‘improperly paid,
exacted, or taken from the claimant in contravention of the
Constitution, a statute, or a regulation.’” Boeing Co.
v. United States, 968 F.3d 1371, 1383 (Fed. Cir. 2020)
(quoting Virgin Islands Port Auth. v. United States,
922 F.3d 1328, 1333 (Fed. Cir. 2019)). We review a grant of
summary judgment by the United States Court of Federal
Claims de novo. Anderson v. United States, 23 F.4th 1357,
1361 (Fed. Cir. 2022). We also review the trial court’s
statutory interpretation de novo. Lambro v. United States,
90 F.4th 1375, 1378 (Fed. Cir. 2024).
“In statutory construction, we begin with the language
of the statute.” Kingdomware Techs. v. United States,
579 U.S. 162, 171 (2016) (internal quotation marks and
citation omitted). “[W]e are not guided by a single sentence
or member of a sentence, but look to the provisions of the
whole law, and to its object and policy.” Dole v. United
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ITSERVE ALLIANCE, INC. v. US 8
Steelworkers of Am., 494 U.S. 26, 35 (1990) (quoting
Massachusetts v. Morash, 490 U.S. 107, 115 (1989)). If the
statutory language provides a clear answer, the inquiry
ends there. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,
438 (1999). “Beyond the statute’s text, [the traditional
tools of statutory construction] include the statute’s
structure, canons of statutory construction, and legislative
history.” Timex V.I., Inc. v. United States, 157 F.3d 879,
882 (Fed. Cir. 1998).
We are tasked with a narrow question in this
appeal: whether the statutory language “an application for
admission as a nonimmigrant under [H-1B], including an
application for an extension of such status,”
Pub. L. No. 114-113, § 402(g), excludes change of status
petitions. We hold that this phrase does not exclude change
of status petitions. Because a strict application of the
statutory definitions for “application for admission” and
“admission” would contradict the phrase “including an
application for extension of such status” and thus render
this language meaningless, we hold the ordinary meaning
of “application for admission as a nonimmigrant under [H-
1B], including an application for an extension of such
status” applies. And the ordinary meaning of this phrase
does not exclude change of status petitions. This
interpretation of the statute also accords with agency
practice, the backdrop against which Congress legislated.
I
Starting with the text of the statute, the enhanced fee
is “required to be submitted with an application for
admission as a nonimmigrant under [H-1B], including an
application for an extension of such status.”
Pub. L. No. 114-113, § 402(b). Here, the INA defines the
terms “application for admission” and “admission.”
8 U.S.C. § 1101(a)(4), (a)(13)(A). And, as Plaintiffs argue,
“[w]hen a statute includes an explicit definition, we must
follow that definition, even if it varies from that term’s
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ITSERVE ALLIANCE, INC. v. US 9
ordinary meaning.” Stenberg v. Carhart, 530 U.S. 914, 942
(2000); see also Appellants’ Br. 19–24. As such, we look to
the statutory definitions.
The phrase “application for admission” refers to “the
application for admission into the United States,” 8 U.S.C.
§ 1101(a)(4), and the term “admission” itself means “with
respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an
immigration officer.” Id. § 1101(a)(13)(A). Plaintiffs assert
that, read with both definitions in the statute, the phrase
“application for admission” refers to the applications for
physical entry of the nonimmigrant into the United States
from outside the United States. See Appellants’ Br. 19–21.
They explain that because change of status petitions
involve only nonimmigrants already inside the United
States who do not need to present themselves for inspection
into the United States, it follows that change of status
petitions are not subject to the enhanced fees under the
Enhanced Fee Statutes. See Appellants’ Br. 21–22.
Plaintiffs’ interpretation, however, does not square with
the fact that Congress further included in the 2015
Enhanced Fee Statute “application[s] for an extension of
[H1-B] status”—applications that, like change of status
petitions, are granted only for nonimmigrants already
inside the United States who have H1-B status. See
Pub. L. No. 114-113; 8 C.F.R. § 214.2(h)(15)(i), (ii)(B). In
fact, Plaintiffs’ proposed construction results in a
contradiction. It cannot be that Congress relied on a strict
application of the statutory definitions to limit the
collection of the enhanced fees only to “applications for
admission” from nonimmigrants outside of the United
States when Congress simultaneously set forth that the
collection of the enhanced fees also applies to “applications
for extension of such status” for nonimmigrants already in
the United States. A correct interpretation must give
meaning to the entire clause.
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ITSERVE ALLIANCE, INC. v. US 10
“It is ‘a cardinal principle of statutory construction’
that ‘a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.’” TRW Inc.
v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan
v. Walker, 533 U.S. 167, 174 (2001)). To resolve the
contradiction triggered by Plaintiffs’ proposed
construction, we would have to read “including an
application for an extension of such status” to mean
“including an application for an extension of such status
only when the nonimmigrant is not in the United States at
the time of the application.” We decline to read in this
condition without an express statement to that effect from
Congress. It is “our duty to refrain from reading a phrase
into the statute when Congress has left it out.” Keene Corp.
v. United States, 508 U.S. 200, 208 (1993). “[W]ere we to
adopt [Plaintiffs’] construction of the statute,” the express
inclusion of applications for an extension would be
rendered “void, or insignificant.” Duncan, 533 U.S. at 174.
As such, “an application for admission” cannot limit the
universe of applications to those only involving
nonimmigrants outside the United States. We therefore
reject Plaintiffs’ strict adherence to the statutory
definitions.
II
Without the benefit of applicable statutory definitions,
we return to resolve the ordinary meaning of the
phrase: “an application for admission as a nonimmigrant
under [H-1B], including an application for an extension of
such status.” See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 228 (2012)
(“[W]here the [statutorily defined] meaning would cause a
provision to contradict another provision, whereas the
normal meaning of the word would harmonize the two, the
normal meaning should be applied.”). We understand this
phrase to include initial grant petitions, which include
change of status petitions, and extension petitions—
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ITSERVE ALLIANCE, INC. v. US 11
regardless of whether the nonimmigrant is located inside
or outside of the United States. First, we address
“application for admission” before turning to the amended
language “including an application for an extension of such
status.”
With respect to “application for admission,” we look to
the general definitions of “application” and “admission” to
aid our understanding of their ordinary meaning. The
general definition for “application” as a noun includes
“request” or “petition.” Application, Merriam-
Webster.com, https://www.merriam-
webster.com/dictionary/application. And “admission” is
defined as “the right or permission to join or enter a place,
a group, etc.” Admission, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/admission.
As such, the ordinary meaning for an “application for
admission” is a request or petition for the right to join or
enter a group. Nothing from this ordinary meaning
requires, let alone connotes, the inside-outside of the
United States distinction that Plaintiffs necessarily rely on
to exclude change of status petitions.
Moreover, this ordinary meaning for “application for
admission” is consistent with long-standing USCIS
practice governed by the statute. In the unique context of
this case, the “application” is the Form I-129 petition,
which employers file on behalf of their nonimmigrant
employee to request a grant of H-1B status, i.e., the right
to enter a group of H-1B status holders. In truth, each
party in this case seems to understand “application for
admission” to refer to the Form I-129 petition. Both
Plaintiffs and the Government repeatedly refer to the Form
I-129 petition filed by employers with USCIS to request a
grant of H-1B status for their nonimmigrant employee
when discussing the “application for admission.” See, e.g.,
Appellants’ Br. 5–6, 21, 35–36 (“The employer specifically
notifies USCIS of its request to have the foreign national
physically enter the United States by checking the
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ITSERVE ALLIANCE, INC. v. US 12
appropriate box on USCIS’s standard Form I-129.”);
Appellee’s Br. 5–9 (explaining that the employer files a
Form I-129 petition with USCIS, on behalf of the
nonimmigrant identified in the petition, and is required to
pay the enhanced fees when it files the Form I-129
petition), 24–25 (“Employers file petitions with USCIS on
Form I-129, as we explained above. The question is
therefore whether the word ‘application’ as used in the text
should be construed as a petition to correspond with the
Form I-129 petitions filed by employers. The answer is
that it must . . . .”). Moreover, employers complete the
Form I-129 for all H-1B petitions, including change of
status petitions, regardless of whether the nonimmigrant
is inside or outside of the United States. Applicants simply
check different boxes for the type of petition being filed.
J.A. 75, 128; Appellants’ Br. 36–37, Appellee’s Br. 42. With
this practice in mind, we continue to see no reason to
exclude change of status petitions from the ordinary
meaning of “application for admission.”
More persuasive to our understanding of the ordinary
meaning for “application for admission” is Congress’s
insertion of “including applications for an extension of such
status” in the 2015 Enhanced Fee Statute. This
amendment bolsters our understanding of the statute in
two respects. First, the word “including” follows
“application for admission as a nonimmigrant under [H-
1B]” and introduces a non-exhaustive list of applications
for admission that are subject to the enhanced fee. Because
Congress specified a non-exhaustive list of applications for
admission that are subject to the enhanced fee, we
understand “application for admission” to be the umbrella
term that refers to all petitions for H-1B status. Second,
this amendment precludes Plaintiffs’ inside-outside of the
United States argument. The non-exhaustive list of
“applications for admission” includes at least “applications
for an extension of [H1-B] status,” i.e., extension petitions.
And extension petitions involve nonimmigrants who are
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ITSERVE ALLIANCE, INC. v. US 13
already inside the United States; they do not involve
physical admission. Thus, the “fee required to be
submitted with an application for admission” cannot turn
on physical admission into the United States and limit the
universe of petitions to those involving only
nonimmigrants outside of the United States. Like
extension petitions, change of status petitions involve only
nonimmigrants inside of the United States. Based on
Congress’s amendment, we fail to see why change of status
petitions should be excluded from the universe of petitions
covered by the Enhanced Fee Statutes. Instead, it appears
Congress intended to collect the enhanced fees regardless
of whether the nonimmigrant’s physical location is inside
or outside of the United States.
Finally, “[w]hen Congress used the materially same
language in [the statute], it presumptively was aware of
the longstanding [administrative] interpretation of the
phrase and intended for it to retain its established
meaning.” Lamar, Archer & Cofrin, LLP v. Appling,
584 U.S. 709, 721–22 (2018) (first citing Lorillard v. Pons,
434 U.S. 575, 580–81 (1978) (“Congress is presumed to be
aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts
a statute without change . . . .”), and then citing Bragdon
v. Abbott, 524 U.S. 624, 645 (1998) (“When administrative
and judicial interpretations have settled the meaning of an
existing statutory provision, repetition of the same
language in a new statute indicates, as a general matter,
the intent to incorporate its administrative and judicial
interpretations as well.”)).
Here, it is evident from the 2015 amendment itself that
Congress was aware of the USCIS practice to collect fees
on petitions for H-1B status because Congress directly
legislated that the enhanced fee applied to extension
petitions. Indeed, the 2015 amendment added extension
petitions under the umbrella of “application for admission,”
to which the increased fee applies. See U.S. Citizenship
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ITSERVE ALLIANCE, INC. v. US 14
and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request
Requirements, 84 Fed. Reg. 62280, 62322 (Nov. 14, 2019)
(explaining that USCIS applied the 2010 increased fee “to
petitions for an initial grant of status or requesting a
change of employer, but not to extension petitions filed by
the same employer on behalf of the same employee.”). And
to add extension petitions under the umbrella of
“application for admission,” Congress would need to know
the petitions to which the enhanced fee originally applied.
This original group of petitions included initial grant
petitions, which include change of status petitions. This
suggests Congress likely knew of the USCIS practice to
collect fees on change of status petitions. Yet Congress still
re-enacted the statute without altering the phrase
“application for admission,” suggesting that Congress was
aware the enhanced fee would apply to change of status
petitions in accordance with the USCIS practice. If
Congress disagreed with how the statute was being
applied, it could have changed the language of the statute,
and it did not. Cf. Lorillard, 434 U.S. at 580–81.
For the reasons above, we conclude that the most
reasonable interpretation of the statute does not exclude
change of status petitions from the language “an
application for admission as a nonimmigrant under [H-1B],
including an application for an extension of such status.”
We therefore find the Enhanced Fee Statutes authorize
USCIS to collect the enhanced fees from employers filing
change of status petitions on behalf of their nonimmigrant
employees already inside the United States under another
status. Plaintiffs’ illegal exaction claim thus fails as a
matter of law. Accordingly, we affirm the trial court’s grant
of summary judgment in favor of the Government.
CONCLUSION
We have considered Plaintiffs’ remaining arguments
and find them unpersuasive. For the reasons stated above,
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ITSERVE ALLIANCE, INC. v. US 15
we affirm the trial court’s grant of the Government’s cross-
motion for summary judgment.
AFFIRMED
COSTS
No costs.
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