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                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-13015
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:12-cv-00127-RWS


VIRAJ, LLC,
RAMESH BABU NUKATHOTI,

                                                             Plaintiffs-Appellants,

                                     versus

U.S. ATTORNEY GENERAL,
ALEJANDRO MAYORKAS,
(Ali) Director, U.S. Citizenship
and Immigration Services,
SALLY QUILLIAN YATES,
U.S. Attorney United States Attorney’s
Office Northern District of Georgia,

                                                           Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                         ________________________

                               (August 25, 2014)
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Before ED CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges.

PER CURIAM:

      Viraj, LLC appeals from the district court’s grant of summary judgment on

its Administrative Procedure Act and Equal Protection claims following the denial

of the alien worker visa petition that Viraj had filed on behalf of Ramesh

Nukathoti. That petition was denied on the grounds that Nukathoti did not have

the required advanced degree and Viraj failed to establish that it could pay the

proffered wage.

      Viraj contends the determination that Nukathoti lacks an “advanced degree”

was arbitrary and capricious. It argues that because Nukathoti had completed five

years of college in India to receive his master’s degree, which was more than the

four years typically required in the United States for a bachelor’s degree, he has an

advanced degree and the visa should have been granted. Viraj also contends that it

is able to pay the proffered wage and that it was unduly burdened by a request for

evidence that would establish its ability to pay. Finally, Viraj contends that the

district court erred in denying its equal protection claim.

                                           I.

      Viraj is a software development and IT consulting company. In 2007 it filed

an “Application for Permanent Employment Certification” with the Department of

Labor for a software engineer position. That application listed Indian citizen
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Ramesh Nukathoti as the person who would fill that position if Viraj’s certification

were approved and a visa granted. After certification was approved, Viraj filed

with the United States Citizenship and Immigration Services (USCIS) an I-140

Immigration Petition for Alien Worker, seeking a visa for Nukathoti. The alien

worker visa petition listed the proposed employment as a software engineer

position at an annual salary of $50,000. In support of its petition, Viraj submitted

copies of Nukathoti’s three-year bachelor of science and two-year master’s degrees

from a university in India. USCIS denied the petition, finding that Nukathoti did

not meet the educational requirements.

      Viraj appealed that decision to the Administrative Appeals Office (AAO),

which agreed that Nukathoti had failed to meet the educational requirements. The

AAO also found that Viraj had failed to establish that it could afford to pay the

proffered salary because it had not provided the evidence that had been requested.

Furthermore, it had filed 70 alien worker petitions and hundreds of nonimmigrant

petitions and yet its current petition claimed that it had only “35+” employees. The

AAO stated that “[t]he competing obligations stemming from simultaneously

pending immigrant, and nonimmigrant petitions, are relevant to whether the job

offer to [Nukathoti] is even bona fide.”

      Viraj filed a lawsuit under the Administrative Procedure Act, 5 U.S.C.



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§ 702, against the Director of USCIS, the United States Attorney General, and the

United States Attorney for the Northern District of Georgia (collectively, the

government), challenging the denial of its alien worker visa petition. Viraj also

raised an Equal Protection claim. The district court granted summary judgment in

favor of the government, and this is Viraj’s appeal.

                                          II.

         We review de novo the district court’s grant of summary judgment, applying

the same legal standards that bound the district court. Shuford v. Fid. Nat’l Prop.

& Cas. Ins. Co., 

, 1341 (11th Cir. 2007). Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

         Under the Administrative Procedure Act, agency actions, findings, and

conclusions can be set aside if only they are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law” or “unsupported by substantial

evidence.” 5 U.S.C. § 706(2)(A), (E). That standard is “exceedingly deferential,”

Fund for Animals, Inc. v. Rice, 

, 541 (11th Cir. 1996), and when

applying it, this Court has “very limited discretion to reverse an agency decision.”

Leal v. Sec’y, U.S. Dep’t of Health and Human Servs., 

, 1282 (11th

Cir. 2010).

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                                        III.

      An alien may eligible for a visa based on employment in the United States as

an advanced degree professional if certain requirements are met. See 8 U.S.C.

§ 1153(b)(2)(A). First, the employer who intends to hire the alien must file an

alien labor certification application with the Department of Labor, which Viraj did.

8 U.S.C. § 1182(a)(5); 20 C.F.R. § 656.17(a)(1).

      After the Department of Labor certifies the application, the employer must

file with USCIS an I-140 visa petition, which Viraj did on Nukathoti’s behalf. 8

U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(c) & (k)(1). The alien named in the visa

petition must be “a professional holding an advanced degree,” 8 C.F.R.

§ 204.5(k)(3), which is defined as “any United States academic or professional

degree or a foreign equivalent degree above that of a baccalaureate,” 

USCIS interprets that regulation to mean that an alien who does not

have “at least a U.S. bachelor’s degree or a foreign equivalent degree” does not

meet the advanced degree requirement for an alien worker visa. See U.S.

Citizenship & Immigration Servs., Dep’t of Homeland Sec., Adjudicator’s Field

Manual § 22.2(j)(1)(B).



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      In the present case USCIS’s denial of Viraj’s alien worker visa petition on

the ground that Nukathoti did not possess an advanced degree was not arbitrary,

capricious, or an abuse of discretion. Because Congress did not define “advanced

degree,” see 8 U.S.C. § 1153(b)(2)(A), USCIS had the authority to interpret the

statutory language and develop regulations to fill the gap. See Wright v. Everson,

, 654 (11th Cir. 2008). USCIS’s regulation defining “advanced

degree” as “any United States academic or professional degree or a foreign

equivalent degree above that of a baccalaureate,” 8 C.F.R. § 204.5(k)(2), is not

contrary to the plain language of the statute. See 

that regulation, it is reasonable and within USCIS’s authority

to conclude that Nukathoti’s three-year bachelor of science degree was not

equivalent to a United States bachelor’s degree and that his two-year master of

science degree was not equivalent to a United States master’s degree. See Matter

of Shah, 17 I. & N. Dec. 244, 245 (BIA 1977) (determining that a three-year Indian

bachelor’s degree was not the equivalent of a United States bachelor’s degree,

which usually requires four years of study). Viraj argues that “above . . . a

baccalaureate” degree, 8 C.F.R. § 204.5(k)(2), means any master’s degree that is

achieved after more than four years of study. Although that is one way to

reasonably interpret the regulation, it fails to establish that USCIS’s interpretation

is plainly erroneous or inconsistent with the regulation. See Sierra Club v.

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Johnson, 

, 1274 (11th Cir. 2006) (“An agency’s interpretation of its

own regulations is controlling unless plainly erroneous or inconsistent with the

regulation.”) (quotation marks omitted).

       Nor did the agency’s decision to rely on the Electronic Database for Global

Education (EDGE) and to discount the letters from professors and academic

credential evaluations that Viraj submitted make the denial of the visa petition

arbitrary or capricious. 1 Deciding which materials to rely on was within the

agency’s discretion, and it was entitled to give the letters and evaluations less

weight in light of the fact that they differed from the information provided in

EDGE, which is a respected source of information. See Matter of Caron Int’l, Inc.,

19 I. & N. Dec. 791, 795 (BIA 1988) (“[S]ince the [agency] is responsible for

making the final determination regarding a beneficiary’s eligibility for the benefit

sought, where an opinion is not in accord with other information or is in any way

questionable, the [agency] is not required to accept or may give less weight to that

evidence.”).



       1
         The district court described EDGE as “a web-based resource for the evaluation of
foreign education credentials created by the American Association of Collegiate Registrars and
Admissions Officers.” It noted USCIS’s observation that, “unlike other foreign credential
evaluators, ‘[a]uthors for EDGE are not merely expressing their personal opinions. Rather, they
must work with a publication consultant and a Council Liaison with AACRAO’s National
Council on the Evaluation of Foreign Educational Credentials.’” The district court pointed out
that EDGE had determined that a master of science degree from India is comparable to a United
States bachelor’s degree.

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       Because it was not arbitrary or capricious for USCIS to deny Viraj’s alien

worker visa petition on the ground that Nukathoti lacked the necessary educational

qualifications, we need not address the issues raised regarding Viraj’s ability to pay

the proffered wage. See 8 C.F.R. § 204.5(g)(2) & (k)(3) (providing that in order

for an I-140 alien worker visa petition to be granted, the employer must establish

both that the alien it seeks to employ is an advanced degree professional and that it

has the ability to pay the proffered wage).2

                                                 IV.

       We review de novo constitutional challenges to agency orders. Toro v.

Sec’y, U.S. Dep’t of Homeland Sec., 

, 1230 (11th Cir. 2013). Under

rational basis review, an agency’s interpretation of its own regulation violates the

Equal Protection Clause only if the interpretation is not rationally related to any

legitimate governmental objective. See Cook v. Wiley, 

, 1323 (11th

Cir. 2000); see also Resendiz-Alcaraz v. U.S. Att’y Gen., 

, 1271

(11th Cir. 2004) (“[F]ederal classifications that distinguish among groups of aliens

are subject only to rational basis review.”). To have a rational basis, a

classification distinguishing among groups of aliens “must be reasonable, not

arbitrary, and must rest upon some ground of difference having a fair and
       2
          Viraj also argues that the denial of its visa petition was arbitrary or capricious because it
was inconsistent with prior unpublished USCIS decisions, but those decisions have no
precedential value and are not a proper basis for denying USCIS the deference it is due. See,
e.g., De la Rosa v. U.S. Att’y Gen., 

, 1336 (11th Cir. 2009); Chan v. Reno, 

, 1073 (9th Cir. 1997).
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substantial relation to the object of the legislation, so that all persons similarly

circumstanced shall be treated alike.” Fernandez-Bernal v. U.S. Att’y Gen., 

, 1312 (11th Cir. 2001) (quoting Stanton v. Stanton, 

, 14, 

, 1377 (1975)).

      Viraj contends that its visa petition was denied because of “cultural

discrimination,” and it asserts that USCIS probably would not reject a two-year

master’s degree issued by a United States university if that degree were preceded

by the same three-year Indian bachelor’s degree that Nukathoti had. That

contention is unavailing. Viraj presented evidence of four Indian students who

have United States master’s degrees preceded by three-year Indian bachelor’s

degrees. Nukathoti does not have those credentials. Viraj has provided no

evidence that visa petitions for aliens with Indian master’s degrees were denied

based on race or national origin or on any basis other than the legitimate

determination that the foreign degree was not equivalent to an advanced degree, as

required by the regulation. “[M]ere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.

England, 

, 1326 (11th Cir. 2005). The district court properly granted

summary judgment to the government on Viraj’s equal protection claim.

      AFFIRMED.



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