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Treez Inc. filed a motion for a summary judgment in its lawsuit against federal government on Sept. 18, over the denial of an H-1B visa for one of their executives from India.

According to the U.S. Citizenship and Immigration Services (USCIS), the H-1B visa is typically granted to people who want to perform “specialty occupation services of exceptional merit or ability”. Citizenship and Immigration Services. It is a nonimmigrant, temporary visa that is reserved for people with high levels of education.

California-based Trees According to the summary judgment motion filed by the legal team of the company, Ameya Pethe, “a highly skilled and educated software engineer,” was petitioned to the USCIS for H-1B status in December 2021 to work as director of development operations for the company while residing in Missouri. Davis Wright Tremaine LLP Treez filed a lawsuit this week in the U.S. District Court of the Northern District of California on behalf of Treez.

According to the motion, in January 2022 the USCIS approved Treez’s petition for Pethe’s H-1B Status to work as a Software Developer through Jan. 12 2025.

However, when Treez filed an amended petition a few months later–solely to change Pethe’s employment location from Missouri to Pennsylvania–federal government officials sent a request for evidence (RFE) invoking an “illegality rule,” demanding that Treez prove Pethe’s work as a software engineer does not “aid and abet activities” that violate the Controlled Substances Act (CSA), according to the motion.

Treez, which is still fighting for the amended petition to be approved, is now asking the court for a summary judgement before the petition expires less than four months from now.

Treez said that it confirmed with federal officials Pethe’s work did not include cultivating or processing cannabis, or distributing or delivering it. The company also argued that providing software to cannabis businesses that are legal in their state does not constitute “aiding or abetting,” either legally or factually. Treez’s legal department at DWT emphasized in the Motion The USCIS has approved numerous petitions in the past for Treez nonimmigrant workers, including in 2016, 2019, and 2021.

The USCIS has reversed its previous practice with Treez, and denied Pethe’s amended petition for an H-1B visa by October 2022.

“Just like the original Petition” [for Pethe]These other Treez petitions all identified Treez’s nature of business and its connection to state-legal marijuana retailers,” DWT partner John A. Goldmark wrote on the 18th September motion.

“And just as the original petition [for Pethe]”Defendants did not invoke any purported ‘illegality rule’ or provide any indication that they would take the position that Treez’s business was violating federal criminal law–much less anoint themselves as the interpreters and arbiters of federal criminal drug laws,” he wrote. “Defendants didn’t invoke any purported “illegality rule” or give any indication that they would take a position that Treez’s business was in violation of federal criminal law – much less that defendants will anoint themselfs as the arbiters and interpreters of federal criminal drugs laws.”

In October 2022 denial orderKristine R. Crankall, acting director of the USCIS California Service Center determined that Treez’s proposed employment Pethe appears to violate federal law as per the CSA.

Crandall acknowledged the USCIS would “generally defer” to its prior determinations of eligibility for an H-1B Visa if there were “material errors,” “material changes” or “new materials information.” Crandall did not specify which of the three standards was the basis of the deviation from the agency’s previous approvals.

Crandall wrote: “The evidence shows that working for your organisation involves providing marijuana dispensaries business solutions.” “While not actively involved in the manufacture, possession or distribution of marijuana by the beneficiary, he would provide software solutions and business apps to dispensaries at your direction. These solutions and applications include point of sale, inventory management for dispensaries, and omnichannel delivery solutions. These services are designed to maintain and overhaul business solutions in marijuana dispensaries. By providing these services to marijuana dispensaries, the recipient would, in reality, be aiding and abetting a CSA violation.

Treez responded by filing a lawsuit against Crandall, USCIS, U.S. Department of Homeland Security, and USCIS Director Ur Jaddou in November 2022. Treez claimed that the USCIS denied the H-1B Amendment for Peth’s move to Pennsylvania arbitrarily and capriciously on grounds which had nothing to do the amendment.

Treez’s legal department claims that the defendants have wrongly extended a standard of legal aid and abettement for any activities “related” to state-legal cannabis operations.

According to Treez’s report, the government’s “dangerous stance” affects all legal businesses who provide services to customers within the state-legal marijuana industry – from sign makers and ATMs to telephone and internet providers.

According to the DWT lawyers, USCIS officer John Batiste initially approved Treez’s amended Pethe petition in July 2022, but then changed his mind to match his superior. Batiste claimed that Treeze was different from other Software as a Service providers such as Microsoft, Intel IMB and Oracle, according to the DWT lawyers.

According to the DWT lawyers, court-ordered records revealed that the defendants approved a “multitude” of similar petitions over the years despite being aware that these petitioners provided services to state-legal marijuana clients, just as Treez.

The legal team gave the example of a H-1B visa approved for Baker Technologies Inc., a company that “creates a CRM platform that is specifically tailored to legal cannabis industry.” This company hired a database manager to oversee their software.

The DWT attorneys wrote that “Defendants approved an H-1B to hire a’management analysts’ who would conduct direct studies and improve operations in the petitioner’s recreational cannabis dispensaries.”

Treez’s legal team argued the defendants did not follow any rule-making procedure to adopt a “new illegality rule” when they denied Pethe’s amended petition for an H-1B visa. According to DWT attorneys, the defendants instead began “invoking it and applying it to visa requests in a haphazard and irregular manner.”

Treez sought relief in its motion for summary judgement filed this week, arguing that defendants’ denial orders violated the Administrative Procedure Act because they “exceeded their statutory authority, promulgated a new rule with no required procedure, arbitrarily and capriciously denied plaintiffs’ amended H-1B application.”