sunshine stores and ali selected h1-b cases
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Came as tourists in 2003 and still here in 2012 filing successive UNSUCCESSFUL appeals, motions, and lawsuits.TRANSCRIPT
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SUNSHINE STORES, INC., ET AL.,
Plaintiffs,
VS.
ERIC HOLDER, U.S. Attorney General,ET AL.,
Defendants.
)))) CIVIL ACTION NO.)) 3:09-CV-1352-G))))
MEMORANDUM OPINION AND ORDER
Before the court is the defendants’ motion for summary judgment (docket
entry 47). For the reasons set forth below, the motion is granted.
I. BACKGROUND
This is an immigration case. The plaintiffs are Sunshine Stores Inc. (“Sunshine
Stores”), a Texas-based retailer, and husband and wife Ramzan Ali (“Mr. Ali”) and
Munira Ramzan Ali (“Mrs. Ali”). Plaintiffs’ First Amended Petition to the Original
Complaint for Writ of Mandamus and Declaratory Relief (“Complaint”) ¶¶ 3, 5-6
(docket entry 14). The defendants are Eric Holder, Janet Napolitano, Michael Aytes,
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David Roark, and Mark Hazuda (collectively, United States Citizenship and
Immigration Services or “USCIS”). Id. ¶¶ 1, 7-11.
On October 12, 2003, the Alis were admitted to the United States with B-2
visitor status on a single entry visa. Brief in Support of Defendants’s Motion for
Summary Judgment (“Brief”) at 6 (docket entry 48). Under this visa, they were
authorized to remain in this country until April 11, 2004. Id.
On April 2, 2004, nine days before the scheduled expiration of their initial
visa, the USCIS received the Alis’ first Form I-539 application to extend their
nonimmigrant status (“I-539 #1”). Id. at 7. In this application, the Alis explained
that their stay in the United States would be “temporary,” and that they “do not
intend to stay here longer than [their] authorized time.” Id. They wished to extend
their B-2 visitor status through October 10, 2004. Id.
While the I-539 #1 application was pending, the USCIS received Sunshine
Stores’ Form I-129 petition for a nonimmigrant worker. Id. In this petition,
Sunshine Stores requested that Mrs. Ali’s status be changed from a B-2 visitor to an
H-1B nonimmigrant worker, so that Mrs. Ali could work at Sunshine Stores as an
accountant. Id. Concurrently, Mr. Ali filed a second Form I-539 application (“I-539
#2”), in which he requested that his B-2 visitor status be changed to H-4 dependent
status. Id. at 7-8. Thus, Mr. Ali’s I-539 #2 application was contingent upon Ms.
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Ali’s I-129 application. Id. at 9. Both Alis wished to have their stays in the United
States extended until October 1, 2007. Id. at 7.
On June 15, 2004, USCIS requested that Sunshine submit additional evidence
in support of Mrs. Ali’s I-129 on the question of whether her potential position was a
“specialty occupation.” Id. at 8. On August 19, 2004, USCIS received Sunshine’s
response. Id.
On August 30, 2004, USCIS denied the Alis’ I-539 #1 request for extension of
their B-2 visitor status. Id. A principal reason for the denial was that Sunshine Stores
had filed an I-129 petition on behalf of Mrs. Ali. Id. at 9. The USCIS explained that
this demonstrated that the Alis did not intend to leave the United States. Id. at 9.
On September 1, 2004, USCIS denied Sunshine’s I-129 petition for failure to
establish that the position met the regulatory definition of a “specialty occupation.”
Id. Concurrently, USCIS denied Mr. Ali’s contingent I-539 #2 request to change his
status from a B-2 visitor to an H-4 dependent. Id.
After the USCIS denied the I-539 #1, I-539 #2, and I-129 requests, the
plaintiffs filed a series of motions to reopen and reconsider their applications, as well
as an appeal to the Administrative Appeals Unit. Id. at 10-13. All of the plaintiffs’
motions and appeals were denied. Id.
On July 17, 2009, the plaintiffs filed this suit challenging the USCIS’ decision
on their I-539 and I-129 requests. On September 23, 2011, the defendants filed this
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motion for summary judgment. Summary judgment is proper when the pleadings,
depositions, admissions, disclosure materials on file, and affidavits, if any, “show[]
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FEDERAL RULE OF CIVIL PROCEDURE 56(a), (c)(1). A
fact is material if the governing substantive law identifies it as having the potential to
affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue as to a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.; see also Bazan ex
rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (“An issue is ‘genuine’
if it is real and substantial, as opposed to merely formal, pretended, or a sham.”). To
demonstrate a genuine issue of material fact, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574, 586
(1986). The nonmoving party must show that the evidence is sufficient to support
the resolution of the material factual issues in his favor. Anderson, 477 U.S. at 249
(citing First National Bank of Arizona v. Cities Service Company, 391 U.S. 253, 288-89
(1968)).
When evaluating a motion for summary judgment, the court views the
evidence in the light most favorable to the nonmoving party. Id. at 255 (citing Adickes
v. S.H. Kress & Company, 398 U.S. 144 (1970)). However, it is not incumbent upon
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the court to comb the record in search of evidence that creates a genuine issue as to a
material fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). The
nonmoving party has a duty to designate the evidence in the record that establishes
the existence of genuine issues as to the material facts. Celotex Corporation v. Catrett,
477 U.S. 317, 324 (1986). “When evidence exists in the summary judgment record
but the nonmovant fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court.” Malacara, 353 F.3d
at 405.
II. ANALYSIS
A. Judicial Review of Administrative Agency Decisions
Under the Administrative Procedures Act, 5 U.S.C. § 500 et seq. (“APA”), “[a]
person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.” Id. § 702. In particular, a “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.”
Id. § 706(2)(A). The Fifth Circuit has explained that an agency’s action is arbitrary
and capricious
“if the agency has relied on factors which Congress has notintended it to consider, entirely failed to consider animportant aspect of the problem, offered an explanation forits decision that runs counter to the evidence before the
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agency, or is so implausible that it could not be ascribed toa difference in view or the product of agency expertise.”
Luminant Generation Company, L.L.C. v. United States Environmental Protection Agency,
675 F.3d 917, 925 (5th Cir. 2012) (quoting Texas Oil and Gas Association v.
Environmental Protection Agency, 161 F.3d 923, 955 (5th Cir. 1998)).
The scope of review of agency actions under Section 706(2)(A) is “very
narrow.” Delta Foundation, Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002)
(quoting Louisiana v. Verity, 853 F.2d 322, 327 (5th Cir. 1988)). “The court’s role is
not to weigh the evidence pro and con but to determine whether the agency decision
‘was based on a consideration of the relevant factors and whether there was a clear
error of judgment.’” Id. (quoting Louisiana, 853 F.2d at 327). “Thus, if the agency
considers the factors and articulates a rational relationship between the facts found
and the choice made, its decision is not arbitrary and capricious.” Id. (quoting Harris
v. United States, 19 F.3d 1090, 1096 (5th Cir. 1994)). “The ‘agency’s decision need
not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave
at least minimal consideration to relevant facts contained in the record.’” Id. (quoting
Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance
Company, 463 U.S. 29, 43 (1983)).
B. Requests under I-129 and I-539 #2
The plaintiffs argue that the USCIS’ denial of their I-129 and I-539 #2
requests was “arbitrary, capricious, and not in accordance with law.” Complaint ¶ 29.
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In particular, they argue, the USCIS was wrong to determine that the position that
Sunshine Stores had for Mrs. Ali was not a “specialty occupation.” Id. ¶ 28. In this
case, the court concludes that the USCIS’ determination that the Sunshine Stores
position was not a “specialty occupation” was not arbitrary and capricious.
1. Legal Standard: What Constitutes a “Specialty Occupation”
Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., a qualified
temporary nonimmigrant alien can come to the United States to work for a
sponsoring employer in a “specialty occupation.” Id. § 1101(a)(15)(H)(i)(b). These
aliens are known as “H-1B” nonimmigrants. 8 C.F.R. § 214.2(h)(1)(ii)(B). If an
employer wishes to employ an H-1B nonimmigrant, the employer must demonstrate
that offered position is a specialty occupation, and that the potential H-1B
nonimmigrant is qualified for the position. See 8 C.F.R. § 214.2(h)(4)(iv)(A).
A “specialty occupation” is one that requires “theoretical and practical
application of a body of highly specialized knowledge, and [the] attainment of a
bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1)(A)-(B).
To qualify as a specialty occupation, the position offered by the employer must meet
one of the four following requirements:
(1) A baccalaureate or higher degree or its equivalent isnormally the minimum requirement for entry into theparticular position;
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(2) The degree requirement is common to the industry inparallel positions among similar organizations or, in thealternative, an employer may show that its particularposition is so complex or unique that it can be performedonly by an individual with a degree;
(3) The employer normally requires a degree or itsequivalent for the position; or
(4) The nature of the specific duties are so specialized andcomplex that knowledge required to perform the duties isusually associated with the attainment of a baccalaureate orhigher degree.
8 C.F.R. § 214.2(h)(4)(iii)(A).
2. Application
In this case, Sunshine Stores filed an I-129 request to change Mrs. Ali to an H-
1B nonimmigrant so she could be employed as an accountant. See Brief at 15. The
USCIS denied the I-129 request on the grounds that Sunshine Stores failed to
demonstrate that the position constituted a “specialty occupation.” Id. After
reviewing the record, the court concludes that the USCIS did not act arbitrarily and
capriciously when it denied Sunshine Stores I-129 application.
First, it is clear that Sunshine Stores did not “normally require[] a degree or its
equivalent for the position.” See 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). This is because
Sunshine Stores had never previously employed anyone as an accountant. Brief at 8.
Second, Sunshine Stores failed to show that a baccalaureate or higher degree
was a normal requirement for that position, or a parallel position in similar
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organizations. See 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(2). After Sunshine Stores
submitted the I-129, USCIS requested additional evidence on whether the position
that Mrs. Ali would fill was a specialty occupation. Brief at 8. The response
contained a lengthy description of what Mrs. Ali would be doing if she filled the
position. Appendix to Brief in Support of Defendants’s Motion for Summary
Judgment (“Appendix”) at 22-74 (docket entry 49). However, the vast majority of
this description was an explanation of what accountants and financial managers do in
general. While many positions for accountants do require advanced degrees,
Sunshine Stores failed to show that the particular position it was offering Mrs. Ali
would normally require such a degree in the industry.
Finally, Sunshine Stores failed to show that the particular position was so
specialized, complex, or unique that it could only be performed by an individual with
a degree. See 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). While the plaintiffs’ complaint
alleges that Sunshine Stores has gross revenues of over $6,000,000, Complaint ¶ 3,
the I-129 filed in 2004 stated that Sunshine Stores’ gross annual income was
“+$100,000”, and that it employed ten individuals, Appendix at 4. However, as the
Administrative Appeals Unit noted, “[n]ot all accounting employment is performed
by degreed accountants.” Appendix at 134. Instead, many accounting tasks are
completed by individuals with “associate degrees or certificates, or who have acquired
their accounting expertise through experience.” Id. After considering the size and
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complexity of Sunshine Stores’ operations, the USCIS reasonably decided that its
accounting needs did not require someone with an advanced degree.
As a result, it was not arbitrary or capricious for the USCIS to deny Sunshine
Store’s I-129 request. Moreover, because Mr. Ali’s I-539 request was contingent on
Sunshine Stores I-129 request, it was not arbitrary or capricious for the USCIS to
deny Mr. Ali’s I-539 request.
C. Requests under I-539 #1
Mr. and Mrs. Ali also argue that the USCIS was arbitrary and capricious in
denying their I-539 #1 request to extend their B-2 nonimmigrant visitor status. In
this application, the Alis stated that they “have substantial ties with India and intend
to return upon completion of our visit.” Appendix at 156. They explain that their
“stay in the United States will be temporary and [they] do not intend to stay here
longer than [their] authorized time.” Id. However, while the I-539 #1 request was
pending, Sunshine Stores submitted the I-129 request on behalf of Mrs. Ali. Brief at
25. As stated in the denial of the I-539 #1 request, “[t]his action strongly suggests
that through your attorneys, you submitted your applications primarily to circumvent
the immigration laws of the United States.” Id.; see also Appendix at 166. As a result,
it was not arbitrary or capricious of the USCIS to deny the Alis’ I-539 #1 request.
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III. CONCLUSION
For the reasons set forth above, the defendants motion for summary judgment
is GRANTED. Judgment will be entered for the defendants.
SO ORDERED.
May 21, 2012.
___________________________________A. JOE FISHSenior United States District Judge
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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SUNSHINE STORES, INC., §RAMZAN ALI, and §MUNIRA RAMZAN ALI, §
§Plaintiffs, §
§v. § CASE NO. 3:09-CV-1352-G
§ERIC HOLDER, §U.S. ATTORNEY GENERAL, §et. al. §
§ Defendants. §
BRIEF IN SUPPORT OF DEFENDANTS’S MOTION FOR SUMMARY JUDGMENT
JAMES T. JACKSUNITED STATES ATTORNEY
/s/ Angie L. Henson ANGIE L. HENSONAssistant United States AttorneyTX SBN: 094929001100 Commerce Street, Third FloorDallas, Texas 75242Telephone: 214.659.8600Facsimile: 214.659.8807Email: [email protected]
Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 1 of 33 PageID 580
TABLE OF CONTENTSPage(s)
SUMMARY ................................................................................................................................... 1
OVERVIEW OF THE TEMPORARY NONIMMIGRANT WORKER H-IB VISA PROGRAM .................................................................................................................................... 2
UNDISPUTED FACTS ................................................................................................................ 6
REVIEW UNDER THE APA ..................................................................................................... 13
ARGUMENTS AND AUTHORITIES ....................................................................................... 15
CONCLUSION ............................................................................................................................ 29
CERTIFICATE OF SERVICE ................................................................................................... 29
i
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TABLE OF AUTHORITIES
FEDERAL CASES
All Aboard Worldwide Couriers, Inc. v. Attorney General, 8 F. Supp. 2d 379 (S.D. N.Y. 1998) 5
Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N. D. Tex. 1989) ....................................... 14
Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000) ............................................................... 5, 14
Giddings v. Chandler, 979 F.2d 1104 (5th Cir. 1992) ........................................................... 22, 28
Hayward v. United States Department of Labor, 536 F.3d 376 (5th Cir. 2008) ......................... 14
Motor Vehicles Manufacturers Association of the United States v. State Farm MutualAutomobile Insurance Co., 463 U.S. 29 (1983) ........................................................................... 14
Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. 2007) ................................................... 23
Sherwin-Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003) ............................... 22, 28
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir.1988) ......................................... 13, 14, 16, 27
FEDERAL STATUTES
8 C.F.R. §§ 103.3(a)(1)(iii) ........................................................................................................... 4
8 C.F.R. §103.3(a)(1)(iv) ............................................................................................................... 4
8 C.F.R. § 103.5 ........................................................................................................................... 25
8 C.F.R. § 103.5(a)(1)(ii)(A) ....................................................................................................... 26
8 C.F.R. § 214.1(c)(1) .................................................................................................................. 16
8 C.F.R. § 214.1(c)(5) (2003) ...................................................................................................... 23
8 C.F.R. §214.2(h) ......................................................................................................................... 4
8 C.F.R. §214.2(h)(13)(iii) ............................................................................................................. 4
8 C.F.R. §214.2(h)(15)(ii)(B)(1) .................................................................................................... 4
8 C.F.R. §214.2(h)(4)(iii)(A) ............................................................................................... 5, 9, 17
ii
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8 C.F.R. § 214.2(h)(4)(iv)(A) ........................................................................................................ 3
8 C.F.R. § 214.2(h)(8)(ii)(A)(1) .................................................................................................... 3
8 C.F.R. § 214.2l(ii)(M) ............................................................................................................... 16
5 C.F.R. § 701(a)(2) ..................................................................................................................... 23
8 U.S.C. § 1101(a)(15)(H)(i)(b) ..................................................................................................... 2
8 U.S.C. §§ 1103(a)(1) & 1182(n) ................................................................................................. 3
8 U.S.C. §§ 1184(c)(1) ................................................................................................................... 3
8 U.S.C. § 1184(i)(1)(A)-(B) ......................................................................................................... 4
8 U.S.C. § 1258 ............................................................................................................................ 15
8 U.S.C. § 1361 ........................................................................................................................ 5, 16
5 U.S.C. § 701 .............................................................................................................................. 15
5 U.S.C. § 701(a)(2) ............................................................................................................... 14, 15
5 U.S.C. § 706(2)(A) .................................................................................................................... 13
20 C.F.R. § 655.731(a) ................................................................................................................... 3
8 C.F.R. § 214.2(h)(4)(i)(B)(2) ................................................................................................ 3, 16
MISCELLANEOUS
USCIS Adjudicator's Field Manual §31.3(g)(1) ............................................................................ 6
iii
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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SUNSHINE STORES, INC., §RAMZAN ALI, and §MUNIRA RAMZAN ALI, §
§Plaintiffs, §
§v. § CASE NO. 3:09-CV-1352-G
§ERIC HOLDER, §U.S. ATTORNEY GENERAL, §et. al. §
§ Defendants. §
BRIEF IN SUPPORT OF DEFENDANTS’S MOTION FOR SUMMARY JUDGMENT
Eric Holder, United States Attorney General; Janet Napolitano, Secretary, United
States Department of Homeland Security; Michael Aytes, Deputy Director, United States
Citizenship and Immigration Services; David Roark, Director, United States Citizenship
and Immigration Services, Texas Service Center; and Mark Hazuda, Acting Director,
United States Citizenship and Immigration Services, Vermont Service Center, Defendants
(USCIS, collectively), file this Brief in support of their Motion for Summary Judgment.
SUMMARY
Plaintiffs Ramzan Ali (Ramzan) and his wife, Munira Ramzan Ali (Munira)
entered the United States in 2003 on single-entry B-2 visitor visa stamp. In 2004,
Plaintiff Sunshine Stores, Inc. (Sunshine) filed an I-129 Petition for Non-Immigrant
Brief in Support of Defendants’s Motion for Summary Judgment - Page 1
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Worker seeking permission to hire Munira as an accountant. Ramzan filed two I-539
Applications to Extend/Change Non-Immigrant Status, one seeking to extend his and his
wife’s visit as visitors and the other seeking to change his status to an H-4 dependent
which would allow him to stay in the United States with his wife if Sunshine’s I-129 was
granted. USCIS denied the I-129 and both of the I-539s.
The Plaintiffs assert that USCIS erred as a matter of law when it denied the I-129
and I-539s and that its denials were arbitrary and capricious. The granting of I-129s and
I-539s is within the discretion of USCIS. To prove that the denials were arbitrary and
capricious, the Plaintiffs must show that USCIS did not consider relevant factors and that
the decisions were clear errors of judgment. In addition to the decisions on the
applications being discretionary, the denials were appropriate based on the information
Plaintiffs submitted at the time they filed the applications.
The Plaintiffs seek a writ of mandamus, a declaratory judgment and relief under
the Administrative Procedure Act but fail to show entitlement to any relief. There is no
genuine dispute as to any material fact, however, and the Defendants are entitled to
judgment as a matter of law.
OVERVIEW OF THETEMPORARY NONIMMIGRANT WORKER (H-1B) VISA PROGRAM
The Immigration and Nationality Act (INA) provides for the classification of
qualified temporary worker (“nonimmigrant”) aliens who are coming to the United States
to perform services for a sponsoring employer in a “specialty occupation.” 8 U.S.C. §
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1101(a)(15)(H)(i)(b). These aliens are classified as “H-1B” nonimmigrants. Employers
seeking to employ foreign nationals under the H-1B program must demonstrate that the
proffered position is a specialty occupation, and that the alien beneficiary qualifies for the
specialty occupation position. 8 C.F.R. § 214.2(h)(4)(iv)(A). The determination of
whether an employer’s position qualifies as a specialty occupation has been delegated to
the Secretary of Homeland Security. 8 U.S.C. §§ 1103(a)(1) & 1184(c)(1).
Before filing a petition with USCIS to classify an alien beneficiary as an H-1B
nonimmigrant, the petitioning employer must file a labor condition application (LCA)
with the Department of Labor (DOL). 8 U.S.C. §§ 1182(n), 1184(c)(1). When filing an
LCA, the employer must agree, among other things, to pay a prevailing wage identified
by DOL to the prospective H-1B employee. 20 C.F.R. § 655.731(a). Once an employer
receives a certified LCA from DOL, the employer files its petition, Form I-129, with
USCIS, along with supporting documentation concerning the claimed specialty
occupation position and the alien beneficiary’s qualifications. Nonetheless, a certified
LCA issued by DOL is not a determination that the position at issue is a specialty
occupation. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The certified LCA simply establishes the
employer’s responsibility to comply with certain prevailing wage requirements and to
maintain certain working conditions. 8 U.S.C. § 1182(n).
If the USCIS adjudicator makes a favorable determination, the employer’s H-1B
petition is approved and can have a validity period up to three years. 8 C.F.R. §
214.2(h)(8)(ii)(A)(1). After three years, an employer may request an extension of stay
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for the H-1B nonimmigrant for an additional three years. 8 C.F.R. §
214.2(h)(15)(ii)(B)(1). Aliens are limited to a six- year period in H-1B status, 8 C.F.R. §
214.2(h)(13)(iii), except under specific statutorily defined exceptions.
If the USCIS adjudicator determines that the employer’s H-1B petition should be
denied, the employer has the right to appeal the decision to the USCIS Administrative
Appeals Office (AAO). 8 C.F.R. §§ 103.3(a)(1)(iii) & § 214.2(h)(12)(i). The AAO is an
appellate body located within its own division of USCIS, separate from the adjudication
arm of the agency, which is located under the Domestic Operations Director. 8 C.F.R. §
103.3(a)(1)(iv).
Specialty Occupations
“Specialty occupation” means an occupation that requires a “theoretical and
practical application of a body of highly specialized knowledge, and [the] attainment of a
bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for
entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1)(A)-(B). The
regulations further define specialty occupation as an
occupation which requires theoretical and practical application of a body ofhighly specialized knowledge in fields of human endeavor including, butnot limited to . . . accounting . . . and which requires the attainment of abachelor’s degree or higher in a specific specialty, or its equivalent, as aminimum for entry into the occupation in the United States.
8 C.F.R. §214.2(h). In order to qualify as a specialty occupation within the meaning of
the statute, the position must meet one of the following criteria:
( 1 ) A baccalaureate or higher degree or its equivalent is normally the
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minimum requirement for entry into the particular position;( 2 ) The degree requirement is common to the industry in parallel positionsamong similar organizations or, in the alternative, an employer may showthat its particular position is so complex or unique that it can be performedonly by an individual with a degree;( 3 ) The employer normally requires a degree or its equivalent for theposition; or( 4 ) The nature of the specific duties are so specialized and complex thatknowledge required to perform the duties is usually associated with theattainment of a baccalaureate or higher degree.
8 C.F.R. §214.2(h)(4)(iii)(A).
The burden of proof rests on the employer and the alien beneficiary to establish
that the proffered position is a specialty occupation and that the alien beneficiary
qualifies for the specialty occupation. 8 U.S.C. § 1361. The employer may not make an
end run around the specialty occupation requirement by hiring an alien with a college
education for a position that does not require such a high level. Cf. Defensor v. Meissner,
201 F.3d 384, 387-88 (5th Cir. 2000).
After receiving the employer’s I-129 H-1B petition, certified LCA, and other
supporting documents, USCIS adjudicators make a case-by-case, fact-sensitive,
determination of whether the job at issue in the petition is a specialty occupation. See All
Aboard Worldwide Couriers, Inc. v. Attorney General, 8 F. Supp. 2d 379, 382 (S.D. N.Y.
1998).
In order to assess the issue of whether a position offered is a specialty occupation,
USCIS adjudicators are instructed to consider all facts surrounding the petition, including
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“the beneficiary’s education and work experience, the nature of the petitioner’s business,
industry practice, and salary.” USCIS Adjudicator’s Field Manual § 31.3(g)(1).1 USCIS
adjudicators are also instructed to consult the Bureau of Labor Statistics’s Occupational
Outlook Handbook (OOH) as a source for determining industry standards. Id.
UNDISPUTED FACTS
1. Ramzan and Munira Ali (“the Alis,” collectively) were issued B-2 visitor visa
stamps in their passports by the United States Consulate in Chennai (Madras), India on
August 18, 2003. The B-2 visa stamps were valid until November 17, 2003, for a single
entry into the United States. (Appendix at 161-62.)2
2. On October 12, 2003, the Alis were admitted to the United States in B-2 visitor
status on the single-entry visas, with authorization to remain until April 11, 2004. (Id. at
159-60.)
1The Adjudicator’s Field Manual is publically available athttp://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm.
2The appendix is composed of excerpts from the Administrative Records. The completeAdministrative Records are on file with this Court.
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3. On April 2, 2004, USCIS received the Alis’s Form I-539, Application to
Extend/Change Nonimmigrant Status (I-539 #1), requesting an extension of their B-2
visitor status through October 10, 2004. (Id. at 154.)
4. The Alis included the following statement in their request for extension of their
B-2 visitor status: “We have substantial ties with India and intend to return upon
completion of our visit . . . We will not be working in United States and have substantial
means to support ourselves and take care of any expenses that may occur. Our stay in
United States will be temporary and we do not intend to stay here longer than our
authorized time.” (Id. at 156.)
5. Included in the April 2, 2004, request for extension of their B-2 visitor status
was a brief letter from Donald R. Samuel, M.D., dated March 2, 2004, stating that
Munira had recently had surgery and was under his medical care. Dr. Samuel’s letter
also stated that it was not advisable for Munira to travel at that time but that he would
advise when she could travel safely. (Id. at 163.)
6. Sunshine is a company involved in convenience store retail sales. On June 11,
2004, while the I-539 #1 was pending, USCIS received Form I-129, Petition for a
Nonimmigrant Worker, filed by Sunshine on behalf of Munira for the position of
Accountant. The petition requested that Munira’s status be changed from B-2 visitor to
H-1B nonimmigrant worker and that the H-1B status be extended until October 1, 2007.
(Id. at 3-4, 11.)
7. Ramzan concurrently filed another Form I-539, Application to Extend/Change
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Nonimmigrant Status (I-539 #2), requesting that his status be changed from B-2 visitor to
H-4 dependent and that the H-4 status be extended until October 1, 2007. (Id. at 76.)
8. On June 15, 2004, USCIS issued a Request for Additional Evidence (RFE) on
the I-129 requesting evidence that the position requested in the petition was a specialty
occupation as defined in the RFE and that it was the industry standard as it related to
Sunshine’s organization to hire individuals with a baccalaureate or equivalent for the
position in the petition. It also requested information and documentary evidence on who
performed Sunshine’s accounting services in the past, as well as that individual’s
qualifications, and evidence that Munira was in a valid non-immigrant status. Sunshine
was given 12 weeks to respond. (Id. at 16-17.)
9. On August 19, 2004, USCIS received Sunshine’s RFE response. Sunshine
stated that it had not previously employed any person in the position of accountant prior
to hiring Munira and was unable to provide documentary evidence regarding a history of
minimum requirements for the position. Sunshine also stated that Munira’s duties
resembled those set forth in the DOL’s OOH for the positions of financial manager,
accountant/auditor and budget analyst, and attached the corresponding portion of the
OOH but did not otherwise answer the questions posed in the RFE. (Id. at 19-71.)
10. On August 30, 2004, USCIS denied the Alis’s I-539 #1 request for
extension of their B-2 visitor status. The request was denied because the Alis did not
provide sufficient information regarding the nature of Munira’s medical treatment, such
as the type of treatment she received, the anticipated date of release from medical care,
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whether the treatment was unavailable in her home country, whether she was unable to
fly home due to the ongoing medical treatment, and evidence of her paid medical bills.
Further, USCIS noted that an I-129 Petition for a Nonimmigrant Worker had been filed
on behalf of Munira, contrary to her statement in the B-2 extension request that she
would not be working in the United States. Based on the record, the Alis did not meet
their burden of proof in demonstrating that they intended to depart the United States and
that their request for an extension of their B-2 visitor status was not merely an attempt to
prolong their stay indefinitely. (Id. at 165-66.)
11. On September 1, 2004, USCIS denied Sunshine’s I-129 filed on behalf of
Munira because Sunshine failed to establish that the offered position of accountant met
the regulatory definition of “specialty occupation.” The denial explained that the critical
element is not the title of the position or an employer’s self-imposed standard. Sunshine
did not submit documentary evidence to satisfy the criteria in 8 C.F.R. §
214.2(h)(4)(iii)(A). Therefore, given the size, scope and complexity of Sunshine’s
organization, as well as the duties of an accountant in relation to Sunshine’s business, this
position did not qualify as a specialty occupation. (Id. at 71-74.)
12. Concurrent with the I-129 denial, USCIS also denied Ramzan’s I-539 #2
request to change status from B-2 visitor to H-4 dependent. His request for change of
status to H-4 was contingent upon the approval of Munira’s change of status. Since the
I-129 filed on behalf of Munira was denied, Ramzan’s request to change status to H-4
was consequently denied. (Id. at 80.)
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13. On October 5, 2004, untimely Motions to Reopen on both the I-129 on
behalf of Munira and the I-539 #2 were filed. Sunshine made additional assertions about
its business but did not provide evidence of its actual size, number of retail stores owned,
its finances, or how it was determined that it needed a full-time accountant. (Id. at 81-
99.)
14. Also on October 5, 2004, the Alis, through new counsel, filed a Motion to
Reopen the denial of their I-539 #1 request for extension of their B-2 visitor status. The
new counsel did not submit Form G-28, Notice of Entry of Appearance as Attorney or
Representative. The Alis argued that (1) it was error for USCIS to deny the I-539 #1
extension request without first requesting additional documentation on Munira’s medical
condition, and (2) USCIS is permitted to presume preconceived intent to engage in
employment only if the I-129 had been filed within 60 days of her initial entry as a B-2
visitor or within 60 day of filing her B-2 extension of her visitor status. Attached to the
Motion to Reopen was a brief letter from Donald R. Samuel, M.D., dated September 30,
2004, which stated that: Munira was under his care from November 2003 through April
28, 2004; she had a cesarean section on February 4, 2004; she was not advised to travel
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for 8 weeks after surgery; and the baby was approved for travel in May 2004 at Munira’s
post-partum visit on April 28, 2004. (Id. at 168-70.)
15. On December 3, 2004, USCIS denied both Motions to Reopen/Reconsider on
the I-129 for Munira and I-539 #2 change of status for Ramzan as untimely filed and
because the grounds originally stated in the denials had not been overcome. (Id. at 101-
06.)
16. On December 16, 2004, USCIS dismissed the Alis’s Motion to Reopen their
I-539 #1 extension of their B-2 visitor status and upheld the original denial. The Motion
to Reopen was not properly filed, as neither the affected party (i.e. the Alis) nor the
attorney or representative of record had signed the motion. (The new counsel had not
filed Form G-28, Notice of Appearance as Attorney or Representative and, therefore, was
not counsel of record.) Further, upon review of the entire record, the Alis failed to
overcome the basis for the original denial, which was based on their attempt to prolong
their stay in the United States indefinitely. (Id. at 172.)
17. On December 23, 2004, Sunshine filed Form I-290B Appeal to the
Administrative Appeals Unit (AAU, now Administrative Appeals Office or AAO),
requesting review of the I-129 denial and indicated that a brief and/or evidence would be
submitted to the AAO within 30 days. (Id. at 107-08.)
18. On January 18, 2005, an extension of 30 days to file a brief in support of the
appeal was requested. On February 21, 2005, another extension of five business days to
submit the brief in support of the appeal was requested. These extensions were granted,
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with the appeal brief due on February 28, 2005. (Id. at 109-14.)
19. On February 25, 2005, the AAO received the appeal brief. Sunshine asserted
that it had submitted evidence to show the proposed position of accountant is a specialty
occupation and cited to the OOH. (Id. at 115-26.)
20. On July 27, 2006, the AAO dismissed the appeal and affirmed the
determination that Sunshine failed to establish it would employ Munira in a specialty
occupation. The AAO pointed out that some of the listed duties did not relate to
Sunshine’s business, such as coordinating efforts with sales representatives to target new
sales territories and advising sales representatives in matters such as import and export
regulations. The AAO further stated that, while the size of the company is not relevant in
determining whether a position qualifies as a specialty occupation, the level of income
generated by Sunshine had a direct and substantial bearing on the scope and depth of the
proposed duties of accountant. Sunshine’s gross annual income of “+$100,000” and
employment of 10 persons in the convenient store retail business did not necessitate the
hiring of an accountant with a bachelor’s degree in accounting. (Id. at 127-35.)
21. On August 29, 2006, Sunshine filed a Motion to Reopen/Reconsider the
AAO’s decision. (Id. at 136-43.)
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22. On November 17, 2006, USCIS dismissed Sunshine’s Motion to
Reopen/Reconsider, as the evidence submitted did not overcome the basis for denial. (Id.
at 144-46.)
23. On February 8, 2008, the AAO dismissed Sunshine’s Motion to
Reopen/Reconsider. The motion did not meet the regulatory requirements for a motion
to reopen since it did not reference any new facts in support of the I-129 but merely
included an opinion letter based on facts already in existence. Further, the motion did not
meet the requirements of a motion to reconsider because it did not establish that the prior
decision was based on an incorrect application of law. (Id. at 147-50.)
24. On March 11, 2008, Sunshine, through [another] new counsel, filed a final
Motion to Reopen and Reconsider with a brief attached. On March 18, 2009, USCIS
dismissed the Motion to Reopen and Reconsider, as the motion did not present any new
facts or establish that the prior decision was based on an incorrect application of law or
USCIS policy. (Id. at 151-52.)
REVIEW UNDER THE APA
“Under the APA, the administrative record is reviewed to determine whether the
challenged action was arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with law.” State of Louisiana v. Verity, 853 F.2d 322, 326 (5th Cir.1988); see
5 U.S.C. § 706(2)(A). Under this “very narrow” standard of review, the Court may not
“weigh the evidence in the record pro and con.” Verity, 853 F.2d at 327. Instead, the
Court’s “role is to review the agency action to determine whether the decision ‘was based
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on a consideration of the relevant factors and whether there was a clear error of
judgment.’” Id. (quoting Motor Vehicles Mfrs. Ass’n of the United States v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “A reviewing court is not to substitute its
judgment for that of the agency, and the court is to show proper deference to agency
expertise.” Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 535 (N. D. Tex. 1989).
“Thus, if the agency considers the factors and articulates a rational relationship between
the facts found and the choice made, its decision is not arbitrary or capricious.” Verity,
853 F.2d at 327. “Indeed, the agency’s decision need not be ideal, so long as it is not
arbitrary or capricious, and so long as the agency gave at least minimal consideration to
relevant facts contained in the record.” Id. (footnote omitted). See also Hayward v.
United States Dept. of Labor, 536 F.3d 376, 379-80 (5th Cir. 2008) (same). “[A] federal
agency’s interpretation of a statute whose administration is entrusted to it is to be
accepted unless Congress has spoken directly on the issue . . . Even if statutory or
regulatory language is ambiguous, deference is usually given to the agency’s
interpretation.” Defensor, 201 F.3d at 386. The APA, however, does not apply to agency
action that “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
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ARGUMENTS AND AUTHORITIES
The I-129 and I-539 #2
Sunshine filed an I-129 on June 11, 2004, seeking to hire Munira into a “specialty
occupation,” as an accountant. USCIS denied the I-129 because Sunshine failed to show
that it was the industry standard for its business, or for businesses of like size and
description, to employ a full-time accountant. Sunshine exhausted its administrative
remedies in an unsuccessful effort to get the denial overturned. Sunshine now appeals the
denial through the use of the Administrative Procedure Act (APA), 5 U.S.C. § 701.
Sunshine, however, is not entitled to relief.
A. The Decision to Deny Was Not An Error as a Matter of Law.
The grant or denial of an I-129 is at the discretion of USCIS. 8 U.S.C. § 1258.
Because the decision is discretionary, the denial of the I-129 cannot be an error as a
matter of law. Moreover, the APA does not apply to agency action committed by law to
agency discretion. 5 U.S.C. § 701(a)(2).
B. The Decision to Deny Was Not Arbitrary and Capricious.
Even if the APA did apply here, however, the decision to deny the I-129 was not
arbitrary and capricious. USCIS gave Sunshine an opportunity to amend or supplement
its application in order to obtain a positive adjudication of the I-129. In the RFE, USCIS
specifically set out the definitions and standards used to determine if an occupation is a
specialty occupation and asked for specific information from Sunshine to show that the
position it had open was for a specialty occupation. Sunshine failed to provide the
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requisite information. USCIS considered the factors involved in establishing an
occupation as a specialty occupation. It also clearly articulated the reasons why it made
the decision to deny the I-129. The reasons given were rationally related to the facts.
The denial was not arbitrary and capricious. See Verity, 853 F.2d at 327.
Anyone who makes application for admission into the United States has the burden
of proof “to establish that he is eligible to receive such visa . . . or is not inadmissible . . .
and is entitled to the nonimmigrant . . . status claimed. If such person fails to establish to
the satisfaction of [USCIS] that he is eligible” he shall not be admitted. 8 U.S.C. § 1361.
An employer who seeks to hire a nonimmigrant temporary worker as an
accountant in a “specialty occupation” must apply for an H-1B visa on behalf of the
nonimmigrant it wishes to hire. Application is made through a Form I-129. 8 C.F.R. §
214.1(c)(1). “The director shall determine if the application involves a specialty
occupation as defined in section 214(i)(1) of the Act [8 U.S.C. 1184(i)(1)] .” 8 C.F.R. §
214.2(h)(4)(i)(B)(2). “Director means a Service Center director with delegated authority
at 8 CFR 103.1.” 8 C.F.R. § 214.2l(ii)(M).
In the case at hand, Sunshine could not show that a bachelor’s degree or its
equivalent was the normal minimum requirement for entry into the “accountant” position
it had open because it had never hired anyone for that position. (Appendix at 32.) For the
same reason, it could not show that it normally required a degree for the position. For
Sunshine to have been successful on its I-129, therefore, it had to show that (1) it was
common in the industry in parallel positions among similar organizations that bachelor’s
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degrees were required, (2) the particular position was so complex or unique that it could
have been performed only by someone with a degree, or (3) the nature of the specific
duties were so specialized and complex that knowledge obtained by acquiring a bachelors
degree was required to perform them. 8 C.F.R. § 214.2(h)(4)(iii)(A) (emphasis added).
Sunshine did not make the requisite showing.
On its initial application, Sunshine said only that the proposed duties were to
“collect, analyze and manage financial data; oversee and direct financial operations.”
(Appendix at 5.) In its attachment to the application, instead of listing or explaining the
duties that would be specifically required of the person filling its position, Sunshine
provided what appeared to be a copied list of the duties often associated with an
accountant’s position from the OOH. (Id. at 12-13.) Sunshine made no effort to connect
the lists to the actual job in question.
On June 15, 2004, USCIS sent Sunshine a “Request for Additional Evidence.” In
the request, it set out the definition and requirements for the specialty occupation of
accountant. (Id. at 16-17.) The request also asked for specific information, including:
evidence showing “that the occupation is a specialty occupation as definedabove . . . evidence that it is the industry standard as it relates to[Sunshine’s] organization to hire individuals with a baccalaureate orequivalent for this position . . . the name of the individual who providedaccounting services for Sunshine in the past and documentary evidence thatthe individual had a bachelor’s degree, if he did.
(Id. at 17.) (Emphasis added). Sunshine was given 12 weeks to respond to the request.
In its response to the Request for Evidence, Sunshine provided an even longer list of job
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duties of, and courses taken by, financial managers, accountants, auditors, and budget
analysts in the abstract and compared its listing to information in publications from the
DOL. (Id. at 34-70.) No connection between that list and Sunshine’s business in
particular or the type and size of a business like Sunshine was attempted. Further,
Sunshine did not provide the name of the individual who had previously provided
accounting services.
On September 1, 2004, USCIS denied the application for the I-129. The Director
explained the denial, stating:
the information you submitted does not adequately establish that theposition meets the criteria of a specialty occupation. This office requestedthat the petitioner submit documentary evidence to establish that it is theindustry standard among similar organizations to require the attainment of abachelor’s degree to perform the duties of an accountant. The evidencesubmitted did not establish that a baccalaureate or higher degree or itsequivalent is normally the minimum requirement for entry as an Accountantas it relates to your organization and the industry.
It is not enough for the petitioner to copy the duties that are regularlyassociated with a specialty occupation and then say the beneficiary will beperforming those duties. The service recognizes that certain Accountantpositions are a specialty occupation however, given the size, scope andcomplexity of the petitioners’s organization3, as well as the duties of anaccountant as it relates to the petitioners business, this position does notqualify as a specialty occupation. The beneficiary has not established that abachelor degree is common to the industry in parallel positions amongsimilar organizations or, in the alternative, that the employer showed that itsparticular position is so complex or unique that it can be performed only by
3In their complaint, Plaintiffs assert that Sunshine’s gross annual revenue is more than$6,000,000.00. USCIS has no knowledge of Sunshine’s present gross earnings, but even if that is anaccurate figure, it is irrelevant for purposes of the I-129 it filed seven years ago. In the I-129, Sunshinestated that its gross annual income was “+$100,000.00” and that it employed ten individuals. (Appendixat 4.)
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an individual with a degree.
The critical element is not the title of the position or an employer’s selfimposed standard, but whether the position actually requires theoretical andpractical application of a body of highly specialized knowledge, and theattainment of a bachelor’s degree in the specific specialty as the minimumfor entry into the occupation as required by the act.
The petitioner must establish that the position realistically requiresknowledge, both theoretically and applied, which is almost exclusivelyobtained through studies at the institution of higher learning. The depth ofknowledge and length of studies required are best typified by a degreegranted by such an institution at the baccalaureate level. It must bedemonstrated that the position requires a precise and specific course ofstudy, which relates directly and closely to the position in question.
(Id. at 71-74.) The I-539 #2 was denied at the same time because Ramzan’s request to
change status was contingent on the I-129 filed on behalf of Munira. (Id. at 80.)
On appeal from the denial, the AAO’s written dismissal of the appeal clearly
showed that it considered the relevant factors involved in granting or denying an I-129
and clearly articulated the reasons for its decision:
To the extent that they are described in the record, some of the dutiesappear to involve some level of accounting. However, not all positions thatinvolve accounting and are labeled by the employing firm as accountantpositions require a four-year degree in accounting or a related field. Thecritical question is whether performance of the particular position inquestion involves the theoretical and practical application of highlyspecialized accounting knowledge that is attained only by at least abachelor’s degree or its equivalent in accounting or a related specialty.
Not all accounting employment is performed by degreed accountants.Therefore, the performance of duties requiring accounting knowledge doesnot necessarily establish a proffered position as a specialty occupation. Thequestion is not whether the petitioner’s position requires knowledge ofaccounting principles, which it does, but rather whether it is one thatnormally requires the level of accounting knowledge that is signified by at
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least a bachelor’s degree, or its equivalent, in accounting or a relatedspecialty.
. . .
While the size of a petitioner’s business is normally not a factor indetermining the nature of a proffered position, both level of income andorganizational structure are appropriately reviewed when a petitioner seeksto employ an H-IB worker as an accountant. In cases where a petitioner’sbusiness is relatively small, the AAO reviews the record for evidence thatits operations are, nevertheless, of sufficient complexity to indicate that itwould employ the beneficiary in an accounting position requiring a level offinancial knowledge that may be obtained only through a baccalaureatedegree in accounting or its equivalent.
(Id. at 131-32.)
The AAO pointed out that, in the RFE, Sunshine was given an opportunity to
provide evidence to establish that the proffered position was a specialty occupation.
Instead of taking advantage of the opportunity, however, Sunshine merely provided a
more extensive description of the duties of an accountant, in general, many of which did
not seem to be related to Sunshine’s business. It was not apparent to the Director or the
AAO how duties such as coordinating efforts with sales representatives to target new
sales territories and advising sales representatives in matters such as import and export
regulations related to the position at Sunshine. Sunshine also failed to provide evidence
of the industry standard as it relates to its organization, the name of the person(s) who
had previously provided accounting services for Sunshine, and whether he or she had a
bachelor’s degree.
The AAO further pointed out that Sunshine neither provided an explanation of the
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processes and knowledge that Munira would apply in the performance of the proposed
position, nor described or provided examples of specific matters of its business and
explained how Munira’s work on such matters would correlate with highly specialized
knowledge only attained by achieving a bachelor’s degree, or its equivalent, in a specific
specialty. (Id. at 133.) The record showed that Sunshine is a company involved in
convenience store retail sales, employed ten persons, and earned a gross annual income of
“+$100,000.” (Id. at 134.) Sunshine failed to provide evidence to support its assertion
that it had numerous daily financial transactions that necessitated the hiring of a person
with a bachelor’s degree in accounting. Indeed, the only evidence of record regarding
financial transactions are tax documents supporting Sunshine’s claims that it has ten
employees. (Id.) There are no tax documents regarding its income and no evidence that
it has more than one convenience store, as Sunshine alleged in the petition. (Id.)
Further, although whether a position qualifies as a specialty occupation is not dependent
on the petitioning entity’s size, the level of income generated by the petitioner has a direct
and substantial bearing on the scope and depth of the proposed duties. (Id.)
Responsibility for income of $100,000 differs vastly from responsibility associated with a
far larger income or from a firm that is responsible for the accounting work of many
clients. (Id.)
The AAO’s sustaining of the denial of the I-129 was well-reasoned and factually
specific. Sunshine failed to provide the appropriate evidence to support its I-129.
C. Mandamus Relief is Not Available.
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Because it is USCIS’s decision to determine if the application should be granted,
and the granting of an I-129 is within the discretion of USCIS, Sunshine also fails to
show any right to a writ of mandamus. “Mandamus is an appropriate remedy ‘only when
the plaintiff’s “claim is clear and certain and the duty of the officer is ministerial and so
plainly prescribed as to be free from doubt.”’ Thus, mandamus is not available to review
the discretionary acts of officials.” Giddings v. Chandler 979 F.2d 1104, 1108 (5th Cir.
1992) (internal citations omitted). Sunshine does not have a clear right to relief, and
USCIS’s decision on the I-129 was not ministerial. Moreover, the decision on the I-129
was within the discretion of USCIS. The Plaintiffs are not entitled to a writ of
mandamus.
D. Declaratory Relief is Not Available.
The Plaintiffs also cannot show a right to relief under the Declaratory Judgment
Act. Sherwin-Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003). A
declaratory judgment is inappropriate solely to adjudicate past conduct. Sherwin-
Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003).
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E. No Relief is Available.
The I-539 #2 filed concurrently with the I-129 was dependent on the I-129.
(Appendix at 80.) Because the denial of the I-129 was appropriate, the concurrent denial
of the I-539 #2 was similarly appropriate.
There is no genuine issue of material fact regarding what evidence was submitted
to USCIS for the I-129 and the basis for the denial. USCIS properly denied the
applications. USCIS is entitled to judgment as a matter of law.4
The I-539 #1
A. The Decision to Deny Was Not An Error as a Matter of Law.
The grant or denial of an I-539 is at the discretion of USCIS. “Where an applicant
or petitioner demonstrates eligibility for a requested extension, it may be granted at the
discretion of the Service. There is no appeal from the denial of an application for
extension of stay filed on Form I-129 or I-539.”5 8 C.F.R. § 214.1(c)(5). Because the
decision is at the discretion of the USCIS, the denial of the I-539 #1 cannot be an error as
a matter of law. Moreover, the APA does not apply to agency action committed to
agency discretion. 5 C.F.R. § 701(a)(2).
B. The Decision to Deny Was Not Arbitrary and Capricious.
4Plaintiffs also asked for approval of their applications nunc pro tunc. Even if USCIS had abusedits discretion when it denied the applications, Plaintiffs cannot obtain approval nunc pro tunc. This Courtdoes not have authority to approve the I-129 and I-539 nunc pro tunc. Romero-Rodriguez v. Gonzales,488 F.3d 672 (5th Cir. 2007).
5The regulation was word-for-word the same at the time the Alis’s application was denied. 8C.F.R. § 214.1(c)(5) (2003).
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The B-2 visitor authorization on which Ramzan and Munira Ali entered the United
States in October of 2003 expired on April 11, 2004. Nine days before the expiration of
their visitor status, on April 2, 2004, they filed an I-539 Application to Extend
Nonimmigrant Status, seeking to extend their visit until October 10, 2004. (Id. at 154.)
They stated on the application that “[w]e will not be working in the United States . . . Our
stay in United States will be temporary and we do not intend to stay here longer than our
authorized time.” (Id. at 156.) In the letter that accompanied the I-539 #1, the Alis’s
attorney stated, “Mr. Ali is requesting an extension of his visa in order to have additional
time to visit friends and family and assist his wife during her recovery period.” (Id. at
158.) Included in the Application package was a letter from a doctor, dated 30 days
earlier on March 2, 2004, which stated, “The patient stated above is currently under my
medical care. She recently had surgery and I do not feel that it is advisable for her to
travel at this time. We’ll advise your company when we feel that this patient can travel
safely.” (Id. at 163.) Nothing was stated on the I-539 #1 form itself that indicated that
Munira had had surgery or was ill. Neither the attorney’s letter nor the doctor’s letter
revealed why Munira was under medical care.
On August 30, 2004, USCIS denied the I-539 #1. (Id. at 165-66.) In the denial
letter, the Director specifically pointed out the information that should have been
provided regarding Munira’s medical situation if they had wanted to use it as a reason to
extend their B-2 visitors status. No information was provided as to (1) the type of
treatment she was undergoing and when that treatment would end, (2) whether Munira
Brief in Support of Defendants’s Motion for Summary Judgment - Page 24
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could obtain that type of care in her home country, (3) whether she was unable to fly
because of her medical condition, and (4) proof of her actual medical bills. (Id. at 165.)
In the denial letter, the Director also (1) cited the statement on the I-539 #1 that the
Alis would not be working in the United States and (2) referenced the I-129 petition filed
on behalf of Munira indicating the exact opposite. (Id. at 165-66.) The Director stated
that “[t]his action strongly suggests that through your attorneys, you submitted your
applications primarily to circumvent the immigration laws of the United States.” (Id. at
166.)
The I-539 #1 was denied because the Alis did not prove that they intended to
depart the United States. (Id.) They failed to establish that the purpose for which they
had been admitted to the country had not been accomplished and that their request for an
extension of stay was not merely an attempt to prolong their stay indefinitely. (Id.) The
Alis were directed to make immediate arrangements to depart the United States. (Id.)
There is no appeal from the denial of an I-539. 8 C.F.R. § 103.5. The Alis were
informed that they had no appeal rights but that they could file a motion to reopen or
reconsider the application within 30 days of the decision to deny. (Appendix at 166.)
The Alis filed a motion to reopen the application after the deadline, on October 5, 2004.
(Id. at 168.) Attached to the motion to reopen was another letter from Munira’s doctor
explaining that Munira had had a cesarean section on February 4, 2004, and was advised
not to travel for eight weeks after the surgery. (Id. at 170.) The doctor also advised that
the Alis’s baby was approved for travel in May, 2004. (Id.)
Brief in Support of Defendants’s Motion for Summary Judgment - Page 25
Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 29 of 33 PageID 608
The attorney who filed the motion to reopen was not the same one who had filed
the I-539 #1 and was not the attorney or representative of record. (Id. at 172.) The Alis
did not sign the motion themselves. (Id.) The regulations require that “A motion must be
in writing and signed by the affected party or the attorney or representative of record, if
any.” 8 C.F.R. § 103.5(a)(1)(ii)(A). The motion to reopen, therefore, was not a properly
filed motion to reopen. (Id. at 172.) The motion was dismissed because the Alis failed to
overcome the basis for the original denial and because it was improperly filed. (Id.)
Further, the decision to deny the I-539 #1 was not arbitrary and capricious:
1. The application contained no information regarding Munira’s medical
condition, yet the attorney’s letter stated that that was at least one of the reasons for
staying.
2. The application also specifically stated that they would not be working in the
United States and, yet, two months later Sunshine filed an I-129 application for Munira to
stay and work.
3. The application asked for an extension of the B-2 visitor status to October 10,
2004. Sunshine’s I-129 asked for the H-1B visa to begin October 1, 2004.
Brief in Support of Defendants’s Motion for Summary Judgment - Page 26
Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 30 of 33 PageID 609
4. The doctor’s March 2, 2004, letter that accompanied the I-539 #1 was vague
and did not state what Munira’s medical condition was or that the advice against traveling
was for only eight weeks after her February 4, 2004, surgery.
5. The I-539 #1 was filed on April 2, 2004. The 56th day (eight weeks) after
Munira’s February 4th surgery is March 31, three days before they submitted the
doctor’s March 2 letter to USCIS, failing to reveal that the advice against traveling was
no longer valid–and also appearing to cover up the fact that Munira had given birth.
6. When it was eventually discovered (in the motion to reopen filed in October)
that Munira had given birth, it was also discovered that the baby had been cleared to
travel the previous May.
7. Seven years later, the Alis are still in this country, having lived here illegally
since the denial of their I-539 #1.
All of the reasons given for the I-539 #1 and all of the actions taken in connection
with it support the Director’s decision that the I-539 #1 was filed primarily to circumvent
the immigration laws of the United States and that the Alis were attempting to prolong
their stay in the United States indefinitely. The reasons given for denying the I-539 #1
were rationally related to the facts. The denial was not arbitrary and capricious. See
Verity, 853 F.2d at 327. And although the Director did not know they would still be here
in 2011, the fact that they are still here and have been out of status all of this time, only
Brief in Support of Defendants’s Motion for Summary Judgment - Page 27
Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 31 of 33 PageID 610
serves to support the Director’s conclusion and confirms that the conclusion was not
arbitrary and capricious.
C. Mandamus Relief is Not Available.
Because it is USCIS’s decision to determine if the application should be granted,
and the granting of an I-539 is within the agency’s discretion, the Alis also fail to show
any right to a writ of mandamus. “Mandamus is an appropriate remedy ‘only when the
plaintiff’s “claim is clear and certain and the duty of the officer is ministerial and so
plainly prescribed as to be free from doubt.”’ Thus, mandamus is not available to review
the discretionary acts of officials.” Giddings v. Chandler, 979 F.2d at 1108 (internal
citations omitted). The Alis do not have a clear right to relief, and the USCIS’s decision
on the I-539 #1 was not ministerial. Moreover, the decision was within the discretion of
USCIS. The Alis are not entitled to a writ of mandamus.
D. Declaratory Relief is Not Available.
The Alis also cannot show a right to relief under the Declaratory Judgment Act. A
declaratory judgment is inappropriate solely to adjudicate past conduct. Sherwin-
Williams Co., 343F.3d 383.
There is no genuine issue of material fact regarding what evidence was submitted
to USCIS for the I-539 #1 and the reasons USCIS denied it. USCIS properly denied the
application. USCIS is entitled to judgment as a matter of law.
Brief in Support of Defendants’s Motion for Summary Judgment - Page 28
Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 32 of 33 PageID 611
CONCLUSION
USCIS’s actions have not been arbitrary or capricious. There are no genuine
disputes as to any material fact. USCIS, therefore, is entitled to judgment as a matter of
law.
Respectfully submitted,
JAMES T. JACKSUNITED STATES ATTORNEY
/s/ Angie L. Henson ANGIE L. HENSONAssistant United States AttorneyTX SBN: 094929001100 Commerce Street, Third FloorDallas, Texas 75242Telephone: 214.659.8600Facsimile: 214.659.8807Email: [email protected]
CERTIFICATE OF SERVICE
I hereby certify that on September 23, 2011, I electronically filed the foregoingdocument with the clerk of court for the U.S. District Court, Northern District of Texas,using the electronic case filing system of the court. I also certify that a copy of thisdocument was served upon all opposing parties, or their attorneys of record, by electronicdelivery on this 23rd day of September, 2011.
/s/ Angie L. Henson Angie L. HensonAssistant U.S. Attorney
Brief in Support of Defendants’s Motion for Summary Judgment - Page 29
Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 33 of 33 PageID 612
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 1 of 13 PageID 1I"\, )
~~~¥P~ , -'iJNITEDSTATESDISTRICTCOURT \¢\b . NORTHERN DISTRICT OF TEXAS DALLAS, TEXAS
SUNSHINE STORES, INC., RAMZAN ALI, and MUNIRA RAMZAN ALI
Plaintiffs
v.
) ) ) ) ) ) ) ) ) )
ERIC HOLDER, U.S. Attorney General, ) JANET NAPOLITANO, Secretary, ) U.S. Department of ) Homeland Security, ) MICHAEL AYTES, Deputy Director, ) U.S. Citizenship and Immigration Services, ) and ) DAVID ROARK, Director, ) U.S. Citizenship and Immigration ) Services, Texas Service Center ) MARK HAZUDA, Acting Director U.S. Citizenship and Immigration ) Services, Vermont Service Center ) ----------------~D=e=£=en=d=a=n=ts~ ___ )
.1. __ ::>. l)~~ 1:'1\ L t}L .~~z ~.
''<0Ki i:iEkl'\i DlSH<.iCT Of TEXA:-.
I FILED
I JUL 11-2009
O..j~ DISTRICT CotJR.T
Deputy ·
3·09CV1352- G Case No. ____________ __
PLAINTIFFS' ORIGINAL COMPLAINT FOR WRIT OF MANDAMUS AND DECLARATORY RELIEF
COMES NOW, SUNSHINE STORES, INC., RAMZAN ALI, AND
MUNIRA RAMZAN ALI, Plaintiffs in the above-styled and numbered cause, and
for cause of action would allege the following:
1
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 2 of 13 PageID 2
INTRODUCTION
1. This action is brought to compel Defendants to lawfully adjudicate Form I-
129 (Hl-B - Petition for a Nonimmigrant Worker) and Form I-539 (B-2 -
Application to Extend/Change Nonimmigrant Status) under which Plaintiff
Munira Ramzan Ali is the beneficiary. Plaintiffs have a clear right to the
relief requested; the Defendants have a clear duty to perform the act in
question; and no other adequate remedy is available. The applications were
filed with the United States Citizenship and Immigration Services
(hereinafter "USCIS" or "the Service") and remain within the jurisdiction of
the Defendants, who have unlawfully denied said applications to Plaintiffs'
detriment.
2. Further, this action is brought seeking declaratory judgment against the
Defendants on the basis that the USCIS, as a matter of law, unlawfully
deprived the Plaintiff Sunshine Stores, Inc., of an employee; the Plaintiff
Munira Ramzan Ali of employment; and Plaintiff Munira Ramzan Ali and
Plaintiff Ramzan Ali the proper adjudication of Form I-539 and Form I-129
and, subsequently, Form I -485.
PARTIES
3. Established in 1999, Plaintiff Sunshine Stores, Inc., is a Texas-based retailer
with revenues grossing over $6,000,000 annually. Plaintiff Sunshine Stores,
2
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 3 of 13 PageID 3
Inc., has separate locations m cities throughout Texas, namely: San
Augustine, Newton, Jasper, Nacogdoches, Brookland, and Pineland.
Plaintiff Sunshine Stores, Inc., is headquartered in Brookland, Texas.
4. On June 10, 2004, Plaintiff Sunshine Stores, Inc., filed Form I-129 with the
USCIS seeking to hire Plaintiff Munira Ramzan Ali on an H-1B as an
accountant.
5. PlaintiffRamzan Ali, a thirty-three year old native and citizen of India, is the
husband of Plaintiff Munira Ramzan Ali. Plaintiff Ramzan Ali filed an
application for a B-2 Visa that allowed his wife and him to enter the United
States on October 12, 2003. On or about April2, 2004, PlaintiffRamzan Ali
filed a Form I-539 (Application to Extend/Change Nonimmigrant Status) to
extend the B status. On or about August 30, 2004, the USCIS denied the
Form I-539 filed by Plaintiff Ramzan Ali. Plaintiff Ramzan Ali lives in
Lafayette, Louisiana.
6. Plaintiff Munira Ramzan Ali is a thirty-three year old native and citizen of
India. On October 12, 2003, she entered the United States on a visitor's visa
with her husband, Plaintiff Ramzan Ali. She is the beneficiary of Form I-
129 filed by Plaintiff Sunshine Stores, Inc., with the USCIS on June 10,
2004. She resides in Lafayette, Louisiana.
7. Defendant Eric Holder is Attorney General of the United States, and this
3
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 4 of 13 PageID 4
action is brought against him in his official capacity. Defendant Holder is
generally charged with enforcement of the Immigration and Nationality Act
and is further authorized to delegate such powers and authority to
subordinate employees of the Department of Homeland Security. See
Homeland Security Act of 2002, Public Law 107-296. More specifically,
the Attorney General is responsible for the adjudication of immigrant and
nonimmigrant petitions filed pursuant to the Immigration and Nationality
Act. The users is an agency within the U.S. Department of Homeland
Security to whom the Attorney General's authority has in part been
delegated and is subject to the Attorney General's supervision.
8. Defendant Janet Napolitano is Secretary of the U.S. Department of
Homeland Security, and this action is brought against her in her official
capacity. Defendant Napolitano is generally charged with the enforcement of
the Immigration and Nationality Act, as those duties have been delegated to
her Department in accordance with the Homeland Security Act of 2002.
9. Defendant Michael Aytes is users Deputy Director and is currently the
highest ranking users official, and this action is brought against him in his
official capacity. Defendant Aytes is generally charged with supervising the
execution of duties delegated to users by the Attorney General and
Secretary of the U.S. Department of Homeland Security.
4
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10. Defendant David Roark, Director of the Texas Service Center, is a USCrS
official who is generally charged with supervisory authority over all
operations within the Service's Texas Service Center.
11. Defendant Mark Hazuda, Acting Director of the V ennont Service Center, is
a users official who is generally charged with supervisory authority over
all operations with in the users' Vermont Service Center.
JURISDICTION
12. Jurisdiction in this case is proper under 28 U.S.C. §§ 1331 and 1361. Relief
is requested pursuant to said statutes.
13. Jurisdiction in this case is proper under 5 U.S.C. § 551 et seq., 28 U.S.C. §§
1331 and 1361,5 U.S.C. § 701 et seq., and 28 U.S.C. § 2201 et seq. Relief is
requested pursuant to said statutes. Jurisdiction is also conferred by 5 U.S.C.
§ 706. A district court reviewing agency action may hold unlawful and set
aside agency action that, inter alia, is found to be: "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. §
706(2)(A); "or without observance of procedure required by law, 5 U.S.C. §
706(2)(D). "Agency action" includes in relevant part, "an agency rule, order,
license, sanction, relief or the equivalent or denial thereof, or failure to act."
5 U.S.C. § 551(13).
5
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 6 of 13 PageID 6
14. The aid of the Court is invoked under 28 U.S.C. §§ 2201 and 2202,
authorizing declaratory judgment.
VENUE
15. Venue is proper in this court, pursuant to 28 USC§ 1391(e), in that this is an
action against officers and agencies of the United States in their official
capacities, brought in the District where a Defendant resides and where a
substantial part of the events or omissions giving rise to Plaintiffs' claim
occurred. More specifically, the Plaintiffs' petitions were filed in and
unlawfully denied by the USCIS Texas Service Center located in Dallas,
Texas, which falls within this tribunal's jurisdiction.
EXHAUSTION OF REMEDIES
16. Plaintiffs have exhausted their administrative remedies. On April 2, 2004,
Plaintiff Ramzan Ali filed an extension application for the B-2. On August
30, 2004, the B-2 application was denied. On December 16, 2004, the
USCIS erroneously denied the motion to reopen the I-539 application.
17. On June 10, 2004, Plaintiff Sunshine Stores, Inc., filed a Form I-129 for
Plaintiff Munira Ramzan Ali. On September 1, 2004, the Service denied the
Form I-129 petition on the basis that the proffered position was not that of a
"specialty occupation."
6
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 7 of 13 PageID 7
18. On October 5, 2004, Plaintiff Sunshine Stores, Inc., filed Motions to Re
open the denial of the I-129 (H-lB) and H-4. On December 31, 2004,
USCIS denied the motions. On December 23, 2004, Plaintiff Sunshine
Stores, Inc., appealed the decision to the AAO. On July 27, 2006, the AAO
denied the appeal. On August 29, 2006, Plaintiff Sunshine Stores, Inc., filed
a motion to reopen the AAO decision. On November 17, 2006, the motion
was denied. A request was made to reopen the case which was accepted and
the AAO denied the motion on February 8, 2008. Another motion to re-open
was denied on March 18, 2009.
REMEDY SOUGHT
19. Plaintiffs seek to have the court to compel the Defendants to lawfully
adjudicate the Form I-129 and Form I-539 under which Plaintiff Munira
Ramzan Ali is the beneficiary. Although 28 U.S.C. § 1361 does not
authorize injunctive relief, mandamus jurisdiction permits a flexible remedy.
The same complaint may request declaratory, injunctive, and mandamus
relief.
20. Furthermore, the Plaintiffs seek a judgment from the court to declare the
actions of the users unconstitutional or illegal due to their failure to
comply with the applicable law. 28 U.S.C. § 2201.
7
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 8 of 13 PageID 8
CAUSE OF ACTION
21. All legal prerequisites having been satisfied. On April 2, 2004, Plaintiff
Ramzan Ali filed an extension application for the B-2. On June 10, 2004,
Plaintiff Sunshine Stores, Inc. filed a petition for nonimmigrant worker
(Form I-129) on behalf ofPlaintiffMunira Ramzan Ali.
22. Plaintiffs are members of the distinct class of people within the zone of
interest of Section 101(a)(15)(B) and Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act.
23. Specifically, PlaintiffRamzan Ali is a member of the class of aliens who are
eligible to benefit from the filing of Form I-539. As such, Defendants owed
a duty to Plaintiff Ramzan Ali to adjudicate the I-539 in accordance with the
applicable statutes and regulations
24. Plaintiffs are members of the class of professional aliens, employers, and
spouses who are eligible to benefit from a Form I-129. As such, Defendants
owed a duty to Plaintiffs to adjudicate the I-129 petition in accordance with
the applicable statutes and regulations.
25. In denying the I-539, the Defendant's erred as a matter oflaw. The denial of
the request for extension of the B status because of the filing of a Form I -129
(H-lB) was erroneous as a matter of law because applications for H-lB
allow dual intent. Under the dual intent doctrine, a nonimmigrant may have
8
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 9 of 13 PageID 9
both immigrant and nonimmigrant intent. Matter of H-R-, 7I&N Dec. 651,
654 (R.C. 1958). The doctrine of dual intent is recognized by USCIS for H
visa categories. 8 C.P.R. §§ 214.2(h)(16); Cable, DOS, 91-State-171115, ,-r 5
(May 24, 1991), reprinted in 68 No. 21 Interpreter Releases 681-84 (June 3,
1991) (finding by the Department of State that if the H-1 obtained a change
of status, the fact that s/he "is the beneficiary of an application for
preference status filed under section 204 or has otherwise sought permanent
residence in the United States shall not constitute evidence of an intention to
abandon a foreign residence for purposes of obtaining a v1sa as a
nonimmigrant"; see also Cable, DOS, 92-State-193038 (June 17, 1992),
reprinted in 69 No. 27 Interpreter Releases 872-73 (July 20, 1992) (stating
that the Department of State has long recognized the concept of "dual
intent").
26. When the USCIS denied the I-539, the USCIS erroneously imputed the
intent of Plaintiff Sunshine Stores, Inc., upon Plaintiff Munira Ramzan Ali
when the USCIS erroneously adjudicated the I-539 filed by PlaintiffRamzan
Ali. Plaintiff Sunshine Stores, Inc.-not Plaintiff Munira Ramzan Ali-filed
the I-129.
27. The denial of the H-1B as a matter of law was an error because an
accountant is a specialty occupation. A "specialty occupation" includes the
9
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 10 of 13 PageID 10
definition of professional. The Board has consistently found that the
position of an accountant is a professional position with the statutory
definition set forth at 8 C.F.R. § 214.2(h)(4)(ii); Matter of Arjani, 12 I&N
Dec. 649 (R.C. 1967); Matter of Doultsinos, 12 I&N Dec. 153 (DD 1957).
Whether the position is professional is unrelated to the size of the company
or whether it has previously employed personnel in the position. Young
China Daily v. Chappell, 742 F.Supp. 552 (N.D.Cal. 1989). An
"accountant" by itself is a position which is characterized as a "specialty
occupation" by the USCIS. According to the H-1B Handbook, 2009
Edition, by Austin T. Fragomen, Jr., Caren Shannon, and Daniel Montalvo,
at § 3:12: Proof and supporting documentation concerning whether an
accountant constitutes a "specialty occupation" need not be submitted.
28. Given the statutes, the regulations, and respected immigration treatises,
Plaintiff Sunshine Stores, Inc., -a company that earns millions of dollars
per year-requires an accountant. In support of the need for an accountant,
Plaintiff Sunshine Stores, Inc., provided proof that the position of accountant
was held previously by Richard Chamberlain, a CPA who performed this
service for Plaintiff Sunshine Stores, Inc.
29. Defendants owe Plaintiff a duty to lawfully and judiciously adjudicate the
Form I-539 and the Form I-129 in a manner that does not violate 5 U.S.C. §
10
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 11 of 13 PageID 11
706(2)(A). Defendants violated this statutory duty by erroneously denying
Plaintiffs' Fonn I-539 and Form I-129 due to the misapplication of the
applicably statutes and regulations. The actions of Defendants in this case
are, as a matter of law, arbitrary, capricious, and not in accordance with law.
30. As a result of Defendants' arbitrary, capricious, and unlawful actions, the
applicable statutes and regulations have not been implemented in this case
and Plaintiffs have been unlawfully deprived of the opportunity to employ a
needed candidate to work.
31. The actions of the Defendants seem particularly arbitrary, capricious, and
unlawful given the following: On October 28, 2005, Plaintiff Sunshine
Stores, Inc., filed an ETA Form 9089 (Application for Permanent
Employment Certification) for Plaintiff Munira Ramzan Ali. On February
16, 2006, the U.S. Department of Labor Employment and Training
Administration certified the Form ETA 9089. On July 10, 2006, Plaintiff
Sunshine Stores, Inc., filed an I-140 pursuant to INA Section 203(b)(3)(A)(i)
on behalf of the Plaintiff Munira Ramzan Ali. On February 26, 2007, the
USCIS approved the I-140 filed by Plaintiff Sunshine Stores, Inc .. If
Plaintiff Munira Ramzan Ali's qualifications are sufficient for the purpose of
the labor certification and the I-140, why not for the I-129?
32. Plaintiffs have been greatly damaged by the failure of Defendants to act in
11
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 12 of 13 PageID 12
accordance with their ministerial duties under the law.
(a) Plaintiff Sunshine Stores, Inc., has been unlawfully deprived of the
rights, benefits, and privileges associated with the employment of a
capable and specifically qualified employee.
(b) Plaintiff Munira Ramzan Ali has been unlawfully deprived of the
rights, benefits and privileges associated with lawful employment in
the United States. She has been unlawfully deprived of the
opportunity to pursue lawful employment in the United States and the
ability to maintain lawful status in the United States.
(c) Plaintiff Ramzan Ali has been unlawfully deprived of the rights,
benefits, and the privileges associated with the adjudication of his
Form I-539 and, subsequently, his ability to maintain lawful status in
the United States.
33. The Defendants, in violation of the Administrative Procedures Act, 5 U.S. C.
§ 701 et seq., unlawfully denied Plaintiffs' petitions and have failed to
properly carry out the adjudicative functions delegated to them by law with
regard to the Plaintiffs' case.
PRAYER
34. WHEREFORE, in v1ew of the arguments and authority noted herein,
Plaintiffs respectfully pray that the Defendants be cited to appear herein and
12
Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 13 of 13 PageID 13
that, upon due consideration, the Court enter an order:
(a) declaring unlawful Defendants' erroneous adjudication of Plaintiffs
I-539 petition and approve nunc pro tunc the B-2 status extension;
(b) declaring unlawful Defendants' erroneous-adjudication of Plaintiffs
I-129 petition and approve nunc pro tunc the H-lB status;
· (c) requiring Defendants to adjudicate Plaintiffs' petition for a
nonimmigrant worker on the merits and based on the evidence
properly and timely submitted;
(d) requiring that the Defendant's hold in abeyance the adjudication of the
I-485 pending the outcome of the present action;
(e) awarding Plaintiffs reasonable attorney's fees and costs; and
(f) granting such other relief at law and in equity as justice may require.
This 16th day of July, 2009.
13
identifying data deleted to prevent clearly unw~~ invasion of personal prrva ~,
pUBLIC COPY
FILE:
INRE:
SRC 04 176 50073
Petitioner: 1
Beneficiary:
U.S. Department of Homeland Security 20 Mass. Ave., N.W., Rm. 3000 Washington, DC 20529
U.S. Citizenship and Immigration Services
Office: TEXAS SERVICE CENTER Date: fEB 0 8 2008
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief Administrative Appeals Office
www.uscis.gov
SRC 04 176 50073 Page2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO on motion to reopen/reconsider. The motion will be dismissed.
The petitioner is a retail sales company. It seeks to employ the beneficiary as an accountant and endeavors to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 10l{a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The director denied the petition on the ground that the proffered position is not a specialty occupation. The AAO affirmed the director's findings.
The regulation at 8 C.F.R § 103.5 provides in pertinent part that "a motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." "New" facts are those that were not available and could not reasonably have been discovered or presented in the previous proceeding. A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). The petitioner's motion does not meet the above cited regulatory requirements in that the motion to reopen is not supported by new facts that were unavailable that could not reasonably have been discovered or presented in previous proceedings. In support of its motion, the petitioner submitted an opinion from a credentials evaluation service which concludes that the duties of the proffered position can only be performed by an individual with a bachelor's degree in business administration, accounting or a related field. The opinion letter is dated August 24, 2006, subsequent to the issuance of the AAO's decision dismissing the petitioner's appeal. The opinion does not contain, or reference, new facts in support of the Form I-129 petition that were unavailable and could not reasonably have been discovered or presented in previous proceedings. The opinion writer simply offers an opinion on the educational requirements of the position based on facts already in existence when the AAO issued its original decision on July 27, 2006. The petitioner could have requested an expert opinion to support its petition based on the facts considered by the credentials service opinion writer at any time during previous proceedings. The motion to reopen shall be dismissed.
A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or CIS policy; and (2) establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).
The motion does not establish that the prior decision was based on an incorrect application of law or CIS policy, nor does it establish that the decision was incorrect based on the evidence of record at the time of the initial decision. The petitioner did not cite any precedent decisions supporting its motion. The record reflects, and the prior decision correctly states, that the proffered position does not qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A).
A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). In visa petition proceedings, the burden of proving eligibility remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
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ORDER: The motion is dismissed. The previous decision of the AAO dated July 27, 2006 is affirmed. The petition is denied.