Augat, Inc. v. Tabor

• Decision Date: 12 April 1989
• Docket Number: Civ. A. No. 88-1458-S.
• Citation: 719 F. Supp. 1158
• Court: U.S. District Court — District of Massachusetts
• Parties: AUGAT, INC., Plaintiff, v. Gilbert C. TABOR, Director of Eastern Regional Service Center, Immigration & Naturalization Service, Defendant.

719 F. Supp. 1158

AUGAT, INC., Plaintiff, v. Gilbert C. TABOR, Director of Eastern Regional Service Center, Immigration & Naturalization Service, Defendant.

Civ. A. No. 88-1458-S.

United States District Court, D. Massachusetts.

April 12, 1989.

James A.G. Hamilton, Perkins, Smith, Arata & Howard, Boston, Mass., for plaintiff.

Nicholas Theodorou, Asst. U.S. Atty., Boston, Mass., for defendant.

MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

SKINNER, District Judge.

On November 17, 1986, the plaintiff Augat, Inc. ("Augat") submitted a petition to the Immigration and Naturalization Service ("INS") for a third preference visa pursuant to 8 U.S.C. § 1153(a)(3) for its employee Kevin C. Walker. Augat seeks to have Walker classified as a "member of the professions," within the meaning of §§ 1101(a)(32) and 1153(a)(3) so that he can accept a position as its' Vice President, International.

The INS denied the petition on the grounds that Walker is not a "member of the professions" because he does not possess a baccalaureate degree, and that the position of Vice President for International Operations is not a professional one, because Augat does not require such a degree as a base qualification of its occupant. Augat filed this action requesting a declaration that the denial of the visa petition by the INS was an abuse of discretion, and an order that the visa be issued.¹ The parties have filed cross-motions for summary judgment.

Undisputed Facts

Augat designs, manufactures and markets a range of electro-mechanical components. The company engages in direct sales, and also markets its products through 16 subsidiaries in the United States and abroad. Augat's sales are in excess of $250 million, $55 million of which derive from its foreign operations. These operations are to be supervised by the International Vice-President, a newly created position which has been offered to Mr. Walker.

Walker has been employed in the electrical and electromechanical component industry from 1965 to the present. Before his employment in Augat's British subsidiary, Walker worked for three British industrial firms, holding positions of progressively greater responsibility in the areas of marketing and management. While he completed a certain amount of coursework in mechanical engineering and business administration in the early 60's and 70's, he does not possess a baccalaureate degree in any discipline.

In 1980, Walker was hired by Augat, Inc. as Vice President and General Manager of its British subsidiary, Augat Ltd. The specifications for this position required a bachelor's degree in management or its equivalent, qualifications which Walker was found to possess.

In 1982, Walker was promoted to Vice President, European Commercial Operations. In this position, he was responsible for all of Augat's European operations. His peers in the corporate hierarchy were the managers of the larger international subsidiaries and the Manager for International Finance and Operations. These positions require a bachelor's degree or its equivalent.

In 1983, Walker attended the annual American Electronics Association/Stanford Executive Institute for Management of High Technology Companies. The program deals with materials at the graduate level, participants all have at least 10 years of business experience, and the majority hold MBA's or an equivalent graduate degree in business.

Walker was transferred to the United States in 1985, and promoted to his current position of Consulting Vice President, International (temporary). In this position, Walker reports directly to the President and Chief Executive Officer of the company. His former peers report directly to him, and would continue to do so in the proposed new position. Augat now seeks to install Walker as its permanent Vice President for International Operations, and has filed this visa petition to that end.

Rulings of Law

A decision of the INS denying a visa petition is entitled to deference from the court, and will not be reversed unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Richards v. INS, 554 F.2d 1173, 1177 (D.C.Cir.1977). My function when reviewing an agency decision is limited to determining whether the evidence in the administrative record is sufficient to support the conclusion the agency reached. See, e.g. Occidental Engineering Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985). An abuse of discretion may be found either when there is no substantial evidence to support the agency decision, or when the agency has made its determination based on an improper understanding of the law. See, e.g., Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F.Supp. 712, 715 (N.D. Cal.1988). Further, while the INS has the discretion to develop standards for determining whether an applicant is a member of the professions, when the agency makes a decision which is inconsistent with the agency's own precedent, this may constitute an abuse of discretion. See, e.g., Occidental Engineering Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985); Globenet, Inc. v. Attorney General, No. 88-1261, slip op. at pp. 5-6 (D.D.C. January 10, 1989).

Section 1153(a)(3) provides for a preference for "qualified immigrants who are members of the professions ... and whose services in the professions ... are sought by an employer in the United States." The term "profession" is defined to "include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools." 8 U.S.C. § 1101(a)(32). In order to qualify for a third preference on this basis, the position to be filled must be a professional one, and the alien must be classifiable as a "member of the professions" in the field of intended employment. See, e.g., Globenet, Inc. v. Attorney General, No. 88-1261 (D.D.C. January 10, 1989). The list of professions in the statute does not purport to be exhaustive, and the INS has developed guidelines for identifying professions other than those enumerated. The agency considers the educational prerequisites of the field as a factor of prime significance. For a field to constitute a profession, the applicant must show there is a general requirement of a prolonged period of specialized instruction or study as a realistic prerequisite to entry. See, e.g., Occidental Engineering Co. v. INS, 753 F.2d 766, 767 (9th Cir.1985). The INS has accordingly evolved a standard that a professional position is one which realistically requires the attainment of an education equivalent at least to a baccalaureate degree in the United States. See, e.g., Matter of Portugues do Atlantico Information Bureau, Inc., I.D. # 2982 (Comm.1984); Matter of Bienkowski, 12 I. & N.Dec. 17 (Comm.1966).

The agency cites Walker's lack of a formal degree as the basis for its conclusion that he is not a "member of the professions" within the meaning of the statute, and then draws the conclusion that the position of Vice President for International Operations is not a professional one, since Augat desires to fill it with Walker, a non-professional. The basic premise and support of the argument is that only persons with baccalaureate degrees can be professionals, and only occupations with absolute degree requirements can be professions. This argument, albeit circular, would have considerable force but for the fact that its premise is not a correct statement of the law. There is no absolute degree requirement, either under the statute or the agency's own prior decisions. The agency's application of such a rule automatically to deny the preference, without considering other factors is an abuse of discretion. See, e.g., Globenet, Inc. v. Attorney General, No. 88-1261 (D.D.C. January 10, 1989); Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F.Supp. 712, 716 (N.D.Cal. 1988); Matter of Sun, 12 I. & N.Dec. 535 (1967).

It is not the case that only occupations with absolute degree requirements can be considered professions, within the meaning of the Act. See, e.g., Globenet, Inc. v. Attorney General, No. 88-1261 (D.D.C. January 10, 1989); Hong Kong T.V. Video Program, Inc. v. Ilchert, 685 F.Supp. 712, 716 (N.D.Cal.1988). While a specific degree requirement is an important factor in determining whether an occupation not enumerated in the statute is a "profession," to use it as an absolute test is erroneous, both under the Act itself, and under the INS's own precedents.

In Hong Kong Video, supra, the court held that the INS's decision that the position of President and Chief Executive Officer of the plaintiff company was not a professional one, was an abuse of discretion. The court noted that occupations enumerated in the statute as being professions represent a broad spectrum of positions with varying educational requirements, and therefore the text did not support the agency's assumption that only occupations with degree requirements could be professions. Hong Kong Video, supra, 685 F.Supp. 712, 716. Furthermore, the INS itself has not applied an absolute degree requirement as the test of whether an occupation is a profession. The agency has looked instead to 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. See, e.g., Matter of Perez, 12 I. & N.Dec. 701, 702 (1968); Mindsey v. Ilchert, No. C-84-6199-SC (N.D.Cal. December 11, 1987) and Matter of Sun, 12 I. & N.Dec. 535 (1967), cases finding journalism, fashion design and hotel management to be professions. Compare, Occidental Engineering Co. v. INS, 753 F.2d 766 (9th Cir.1985); Matter of Ho, 12 I. & N.Dec. 148 (1967); Matter of Asuncion, 11 I. & N.Dec. 660 (1967), finding that the occupations of translator and medical technician are not. In Sun, supra, there was no suggestion that a degree was a prerequisite to a position as hotel manager. Nevertheless, in that case the...