242 F.Supp.2d 906 (D.Or. 2002), CUV 02-479, ANA Intern., Inc. v. Way

Docket NºCUV 02-479
Citation242 F.Supp.2d 906
Party NameANA Intern., Inc. v. Way
Case DateDecember 06, 2002
CourtUnited States District Courts, 9th Circuit, District of Oregon

Page 906

242 F.Supp.2d 906 (D.Or. 2002)

ANA INTERNATIONAL, INC., and Honggang Yu, Plaintiffs,

v.

Terry E. WAY, James Ziglar, and John Ashcroft, Defendants.

No. CUV,02-479-BR.

United States District Court, D. Oregon.

Dec. 6, 2002

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[Copyrighted Material Omitted]

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Timothy R. Volpert, James M. Mei, Eric L. Dahlin, Davis Wright Tremaine LLP, Portland, OR, for Plaintiffs.

Michael W. Mosman, United States Attorney, Craig J. Casey, Assistant United States Attorney, Portland, OR, for Defendants.

OPINION AND ORDER

BROWN, District Judge.

Plaintiffs petition the Court to review the decision of the Immigration and Naturalization Service (INS) to revoke its prior approval of Plaintiff ANA International, Inc.'s immigrant visa petition on behalf of Plaintiff Honggang Yu. This matter comes before the Court on Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (# 11), and Plaintiffs' Motion for Summary Judgment (# 18).

For the reasons that follow, the Court concludes it lacks subject matter jurisdiction. Accordingly, the Court GRANTS Defendants' Motion to Dismiss,DENIES as moot the portion of Defendants' Motion regarding summary judgment,DENIES as moot Plaintiffs' Motion for Summary Judgment, and DISMISSES this action without prejudice.

IMMIGRATION AND NATIONALITY ACT

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101, et seq., provides a comprehensive statutory scheme regarding the visitation and immigration of aliens to the United States. Pursuant to the INA, an alien who has a residence in a foreign country that he has no intention of abandoning and who is visiting the United States temporarily for business or pleasure is classified as a nonimmigrant. 8 U.S.C. § 1101(a)(15)(B). Certain nonimmigrants may be permitted to reside and to work in the United States for an extended period, including certain intracompany managerial or executive transferees. 8 U.S.C. § 1101(a)(15)(L). A nonimmigrant intracompany managerial or executive transferee is an alien

who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal identity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.

8 U.S.C. § 1101(a)(15)(L).

Multinational executives and managers who wish to immigrate to the United States on a permanent basis may qualify as priority workers who are entitled to a preference allocation of immigrant visas pursuant to 8 U.S.C. § 1153(b)(1). An alien qualifies as a multinational executive or manager for purposes of an immigrant visa if

the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a

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subsidiary or affiliate therof in a capacity that is managerial or executive.

8 U.S.C. § 1153(b)(1)(C). The INA defines managerial and executive capacities as follows:

(A) The term "managerial capacity" means an assignment within an organization in which the employee primarily-

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if not other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.

(B) The term "executive capacity" means an assignment within an organization in which the employee primarily--

(i) directs the manager of the organization or a major component or function of the organization;

(ii) establishes the goals and policies of the organization, component, or function;

(iii) exercises wide latitude in discretionary decision-making; and

(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

(C) If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.

8 U.S.C. § 1101(a)(44).

8 U.S.C. § 1154 describes the procedure for granting immigrant status to aliens, including the procedure to be followed by an employer that desires and intends to employ within the United States an alien entitled to preferential status as a multinational executive or manager under 8 U.S.C. § 1153(b)(1)(C). According to these statutory provisions, an employer that wishes to employ an alien as a multinational executive or manager may file a petition with the Attorney General. 8 U.S.C. § 1154(a)(1)(D). If the Attorney General determines after investigation that the facts stated in the petition are true and the alien is eligible as a multinational executive or manager, the Attorney General approves the visa petition and forwards it to the Department of State. 8 U.S.C. § 1154(b). The Secretary of State must then authorize "the consular office concerned" to grant the alien immigrant status. 8 U.S.C. § 1154(b). The consular office may not grant immigrant status until

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specifically authorized by the Attorney General. 8 U.S.C. § 1153(f). As immigrant visas become available, they are issued to eligible immigrants in the order in which their petitions under § 1154 were filed. 8 U.S.C. § 1153(e). An alien who holds an approved petition, however, is not entitled to be admitted to the United States as an immigrant on the basis of the approved petition alone. If the alien on arrival at a port of entry is found not to be entitled to a preferential classification pursuant to 8 U.S.C. § 1153, he is inadmissible even if he holds an approved visa petition. 8 U.S.C. § 1154(e).

In the alternative, the Attorney General may adjust the status of a nonimmigrant alien already lawfully in the United States to immigrant status if certain circumstances are present: (1) the alien applies for adjustment, (2) the alien is eligible to receive an immigrant visa, (3) the alien is admissible to the United States, and (4) an immigrant visa is immediately available to him. 8 U.S.C. § 1255.

The INA, however, authorizes the Attorney General to revoke his prior approval of a visa petition in certain circumstances. 8 U.S.C. § 1155 provides:

The Attorney General may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition. In no case, however, shall such revocation have effect unless there is mailed to the petitioner's last known address a notice of the revocation and unless notice of the revocation is communicated through the Secretary of State to the beneficiary of the petition before such beneficiary commences his journey to the United States. If notice of revocation is not so given, and the beneficiary applies for admission to the United States, his admissibility shall be determined in the manner provided for by sections 1225 and 1229a of this title.

The Attorney General delegated his authority to enforce the INA and to direct the INS to the Commissioner of Immigration and Naturalization. 8 C.F.R. § 2.1(a). The Attorney General also granted the Commissioner the power to issue regulations as deemed necessary or appropriate to exercise this delegated authority and the power to redelegate such authority to any officer or employee of the INS. Id. The Commissioner redelegated the power to revoke visa petitions pursuant to 8 U.S.C. § 1155 to the INS. 8 C.F.R. § 3.1.

BACKGROUND

Yu is a Chinese citizen who currently is residing in the United States. In 1994, Yu was employed as the Manager of the Import and Export Division of the Chinese company, Anshan AEC. Yu entered the United States in June 1994 after he obtained a B-1 nonimmigrant or temporary visa for a business visitor from the American Consul at Shenyang, China. On April 10, 1995, Yu filed Articles of Incorporation for ANA with the Secretary of State for the State of Oregon. The following month, ANA filed with the INS an L1-A visa petition to classify Yu as a nonimmigrant "new office intracompany multinational executive or manager transferee." On June 10, 1995, the INS approved ANA's L-1A petition on behalf of Yu. On May 28, 1996, ANA applied to extend Yu's L-1A visa. In November 1996, the INS approved ANA's petition and...

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