36 F.Supp.2d 1151 (D.Minn. 1999), Civ. 97-2777, Shanti, Inc. v. Reno

Docket NºCiv. 97-2777 (MJD/AJB).
Citation36 F.Supp.2d 1151
Party NameSHANTI, INC., d/b/a Moghals Fine Indian Cuisine Restaurant, Plaintiff, v. Janet RENO, Attorney General of the United States, and Natalie Vedder, Director United States Immigration & Naturalization Service (INS), Northern Service Center, Defendants.
Case DateFebruary 16, 1999
CourtUnited States District Courts, 8th Circuit, United States District Court of Minnesota

Page 1151

36 F.Supp.2d 1151 (D.Minn. 1999)

SHANTI, INC., d/b/a Moghals Fine Indian Cuisine Restaurant, Plaintiff,

v.

Janet RENO, Attorney General of the United States, and Natalie Vedder, Director United States Immigration & Naturalization Service (INS), Northern Service Center, Defendants.

No. Civ. 97-2777 (MJD/AJB).

United States District Court, D. Minnesota.

Feb. 16, 1999

Page 1152

[Copyrighted Material Omitted]

Page 1153

Herbert A. Igbanugo, Hassan & Reed, Minneapolis, MN, for plaintiff.

Friedrich A.P. Siekert, Assistant U.S. Attorney, Minneapolis, MN, for defendants.

ORDER

DAVIS, District Judge.

This matter is before the Court on the motion of Plaintiff Shanti, Inc. ("Shanti"), d/b/a Moghals Fine Indian Cuisine Restaurant ("Moghals"), for summary judgment and Defendants' cross motion for summary judgment and motion to dismiss for lack of subject matter jurisdiction. Plaintiff seeks declaratory judgment and injunctive relief from the decision of the Immigration and Naturalization Service ("INS") and the INS Administrative Appeals Unit ("AAU") denying its petition to classify Nancy James ("James") as a nonimmigrant temporary worker and accord her H-1B status under the Immigration and Nationality Act § 101(a)(15)(H)(i)(b) ("INA"), 8 U.S.C. § 1101(a)(15)(H)(i)(b). Shanti asks this court to void the denial of H-1B status to James and compel the INS to approve Shanti's petition.

BACKGROUND

I. Legal Standards for H-1B Status

8 U.S.C. § 1101(a)(15)(H)(i)(b) provides for the temporary admission of a nonimmigrant alien:

to perform services ... in a specialty occupation described in section 1184(i)(1) of this title ... who meets the requirements for the occupation specified in section 1184(i)(2) of this title ... and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with the Secretary an application under section 1182(n)(1) of this title.

8 C.F.R. § 214.2(h)(4)(i)(A)(1) provides that an H-1B classification may be granted to an alien who:

[w]ill perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

To qualify for a nonimmigrant H-1B visa, an alien must satisfy a two-prong test: (1) the position that the alien seeks to occupy must qualify as a "specialty occupation"; and (2) the alien must herself be qualified to perform services in said occupation. See, e.g., Augat, Inc. v. Tabor, 719 F.Supp. 1158, 1160 (D.Mass.1989); Globenet, Inc. v. Attorney General, 1989 WL 132041 at *2 (D.D.C.1989) .

Page 1154

The alien beneficiary and the employer petitioner bear the burden of proof in an administrative proceeding to determine whether the alien and the employer petitioner satisfy the two-prong test. See 8 U.S.C. § 1361 ("Whenever any person makes application for a visa ... the burden of proof shall be upon such person to establish that he is eligible to receive a visa").

A. The Specialty Occupation

8 U.S.C. § 1184(i)(1) and (2) define a "specialty occupation" as requiring:

(1)(A) theoretical and practical application of a body of highly specialized knowledge, and

(1)(B) 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,

(2)(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,

(2)(B) completion of the degree described in paragraph (1)(B) for the occupation, or

(2)(C)(i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

Similarly, 8 C.F.R. § 214.2(h)(4)(ii) provides that :

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

The list of professions included in 8 C.F.R. § 214.2(h)(4)(ii) is not exhaustive, see, e.g., Matter of Chu, 11 I. & N.Dec. 881, 882 (1966); Augat, 719 F.Supp. at 1160; Omni Packaging, Inc. v. INS, 733 F.Supp. 500, 502 (D.Puerto Rico 1990); Matter of Shin, 11 I. & N.Dec. 686, 687 (1966), and accordingly, the INS has developed criteria by which to determine whether a non-enumerated occupation qualifies as a specialty occupation. The INS criteria are set forth in 8 C.F.R. § 214.2(h)(4)(iii)(A), which establishes four standards, one of which an occupation must meet to qualify as a specialty occupation:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex of unique that it can be performed only by an individual with a degree;

(3) the employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Thus, to determine whether an occupation qualifies as a specialty occupation, the INS will examine "whether there is a general requirement of specialized study for the post, coupled with whether the position has complex and discretionary duties normally associated with professional posts." Augat, 719 F.Supp. at 1161 (citing Matter of Perez, 12 I. & N. Dec. 701, 702, 1968 WL 14089 (1968); Mindsey v. Ilchert, No. C-84-6199-SC (N.D.Cal. Dec. 11, 1987); Matter of Sun, 12 I. & N. Dec. 535, 1966 WL 14402 (1967)).

B. The Alien Beneficiary

8 C.F.R. § 214.2(h)(4)(iii)(C) sets forth four criteria to determine whether the beneficiary of a petition for H-1B status is qualified to perform services in a specialty occupation under 8 U.S.C. § 1184(i)(1) and (2). An alien must fulfill one of the four criteria:

(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the

Page 1155

specialty occupation from an accredited college or university;

(3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

8 C.F.R. § 214.2(h)(4)(iv) also provides that a petition for H1-B classification in a specialty occupation shall be accompanied by:

[d]ocuments, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is qualified to perform services in a specialty occupation.

Accordingly, as both the INS and federal courts have noted, "a degree is not necessary" for an alien to qualify to perform services in a specialty occupation; "what is necessary is education and knowledge equal to a baccalaureate level of education." Globenet, 1989 WL 132041 at *2; see also, Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F.Supp. 712, 716 (N.D.Cal.1988); Augat, 719 F.Supp. at 1160-61; Matter of Sun, 12 I. & N.Dec. 535.

II. Shanti's Petition

In January 1996, Shanti, d/b/a/ Moghals Fine Indian Cuisine Restaurant, Inc. ("Moghals"), filed a Form I-129, Petition for Nonimmigrant Worker, with the Nebraska Service Center of the INS to classify James, a citizen of Bangladesh, as a nonimmigrant temporary worker under INA § 101(a)(15)(H)(i)(b), 8 U.S.C.§ 1101(a)(15)(H)(i)(b) to perform services as restaurant manager. Moghals is a restaurant engaged in the market of fine dining, with fourteen employees and an asserted gross annual income of $185,000. See AU decision at 2. The duties involved in the role of restaurant manager at Moghals, as set forth by Petitioner, include: (1) "ensuring the efficient and profitable operation of the restaurant, including establishing standards for personnel administration and performance, advertising, publicity, food selection, wine selection, service and dining room planning, bar and banquet operations;" (2) making financial decisions regarding allocation of funds, authorization of expenditures, and budgetary planning; (3) delegating the duty of hiring and firing employees; (4) directing "all aspects of operations including cost estimates dealing with food suppliers, purchasing, security maintenance and general supervision;" (5) ensuring "consistent quality in food preparation and service" by recruiting, training, and supervising workers; (6) keeping records of employee hours and wages, preparing...

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  • 814 F.Supp.2d 1098 (W.D.Wash. 2011), C09-1269 RSM, Rahman v. Napolitano
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    • Federal Cases United States District Courts 9th Circuit United States District Court (Western District of Washington)
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    ...395 F.3d 1095, 1098 (9th Cir.2005) See also Tapis Int'l v. INS, 94 F.Supp.2d 172, 174 (D.Mass.2000) (citing Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1162 (D.Minn.1999)) (noting that an agency abuses its discretion if its " decision is inconsistent with the agency's own precedent."......
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    ...it is also true that headings serve as useful tools in resolving doubt about ambiguities in a statute. (19) In Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999), a 1999 decision of the U.S. District Court for the District of Minnesota, the court emphasized the significance of the ti......
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    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
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    ...to the alien for up to a total of six years, in three-year increments. See 8 C.F.R. § 214.2(h)(13)(iii)(a); Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1153 (D. Minn. Under the regulations implementing the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. ("INA"), a "spec......
  • 345 F.3d 683 (9th Cir. 2003), 01-16391, Spencer Enterprises, Inc. v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 17 Septiembre 2003
    ...1123-24 (D.Or.2000); Burger v. McElroy, 1999 U.S. Dist. LEXIS 4854 at *4, 1999 WL 203353, *1 (S.D.N.Y. Apr. 12, 1999); Shanti v. Reno, 36 F.Supp.2d 1151, 1157-60 (D.Minn.1999). These cases hold that § 1252(a)(2)(B)(ii) should be read in the context of the entirety of § 1252, which generally......
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36 cases
  • 814 F.Supp.2d 1098 (W.D.Wash. 2011), C09-1269 RSM, Rahman v. Napolitano
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Western District of Washington)
    • 9 Diciembre 2011
    ...395 F.3d 1095, 1098 (9th Cir.2005) See also Tapis Int'l v. INS, 94 F.Supp.2d 172, 174 (D.Mass.2000) (citing Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1162 (D.Minn.1999)) (noting that an agency abuses its discretion if its " decision is inconsistent with the agency's own precedent."......
  • Glara Fashion, Inc. v. Holder, 020312 NYSDC, 11 889 (PAE)
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 3 Febrero 2012
    ...to the alien for up to a total of six years, in three-year increments. See 8 C.F.R. § 214.2(h)(13)(iii)(a); Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1153 (D. Minn. Under the regulations implementing the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. ("INA"), a "spec......
  • 338 F.Supp.3d 1009 (N.D.Cal. 2018), 17-cv-03674-VKD, Innova Solutions, Inc. v. Baran
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    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Northern District of California
    • 10 Octubre 2018
    ...recruit only degreed individuals.’ " Irish Help at Home LLC, 2015 WL 848977, at *7 (quoting Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1165 (D. Minn. 1999) ). USCIS concluded that Innova failed to present sufficient documentation showing that the degree requireme......
  • 345 F.3d 683 (9th Cir. 2003), 01-16391, Spencer Enterprises, Inc. v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 17 Septiembre 2003
    ...1123-24 (D.Or.2000); Burger v. McElroy, 1999 U.S. Dist. LEXIS 4854 at *4, 1999 WL 203353, *1 (S.D.N.Y. Apr. 12, 1999); Shanti v. Reno, 36 F.Supp.2d 1151, 1157-60 (D.Minn.1999). These cases hold that § 1252(a)(2)(B)(ii) should be read in the context of the entirety of § 1252, which generally......
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