United States District Court, S.D. New York
Sanjay Chaubey, Esq., New York, NY, For Petitioner.
Arvind Gupta, Mumbai, MH, India, Respondent (Pro Se).
Shane Patrick Cargo, Assistant United States Attorney, U.S. Attorneys Office Southern District of New York, New York, NY, For Respondent Thomas E. Perez, Secretary of the United States Department of Labor.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Compunnel Software Group, Inc. ("Compunnel") seeks judicial review under the Administrative Procedure Act from an Administrative Review Board ("ARB") order. Arvind Gupta opposed Compunnel's petition and filed a series of fourteen counterclaims against Compunnel. In October, 2014, this Court dismissed Compunnel's petition without prejudice because the ARB had not yet issued a final decision. Gupta's First, Second, Third, Seventh, and Ninth counterclaims were dismissed for the same reason. Compunnel then filed a motion to dismiss the remaining counterclaims, which I treat as a motion for judgement on the pleadings pursuant to Rule 12(c). Gupta filed a cross motion for judgement on the pleadings. For the reasons stated below, Compunnel's motion for judgement on the pleadings is granted and the case is DISMISSED.
A. Factual Background
On December 1, 2006, Compunnel filed a Labor Condition Application (the "LCA") as a necessary step for securing Gupta's H-1B employment under the Immigration and Nationality Act ("INA"). To secure Gupta's employment, Compunnel also filed an H-1B petition with the United States Citizenship and Immigration Service ("USCIS"). Gupta signed an Employment Agreement (the "Agreement") with Compunnel sometime in February 2007.
The Agreement specified that Compunnel "had the right... to cancel the Agreement with or without notice to the Employee" if Gupta showed incompetence or nonprofessional conduct, breached the Agreement, or violated the Employee Manual. It further specified that the Agreement would terminate upon the mutual agreement of Gupta and Compunnel, the death of Gupta, or upon the occurrence of anything which constituted cause as defined by the Employee manual. The Agreement did not state a salary that Gupta was to be paid, nor did it state under what circumstances Gupta would be paid. It also did not say how long the employment relationship would last.
USCIS approved Compunnel's LCA and H-1B petition and returned them to the parties on March 1, 2007. According to the approval notice, Gupta was granted status to work in the United States exclusively for Compunnel from February 27, 2007 until April 30, 2009. Up until June 11, 2007, Gupta worked productively on third-party projects around the country while paid by Compunnel. After this, Gupta entered a period of "nonproductive status, " where he did not work on any projects and was not paid. From December 11, 2007 until March 31, 2008, Gupta worked on another third party project for which he was paid by Compunnel. After this project, Gupta never again worked productively for Compunnel, and was not paid during these nonproductive periods.
On January 21, 2009, Compunnel provided Gupta with a plane ticket to India. On February 19, 2009, at Compunnel's request, USCIS automatically revoked Compunnel's petition. On April 30, 2009, Gupta's H-1B petition expired, and he returned to Mumbai, India where he has resided since. On February 24, 2010, Gupta received an update on his H-1B status from Compunnel, explaining that his H-1B form could not be filed until the company found a client for Gupta.
B. Procedural History
1. Administrative ...