Arctic Catering, Inc. v. Thornburgh

Decision Date24 July 1991
Docket NumberCiv. A. No. 90-K-165.
Citation769 F. Supp. 1167
PartiesARCTIC CATERING, INC. applicant on Behalf of Frederick MacMILLAN, beneficiary, Plaintiffs, v. U.S. Attorney General, Dick THORNBURGH; and the United States Immigration and Naturalization Service, Defendants.
CourtU.S. District Court — District of Colorado

Woon Ki Lau, Lau & Choi, Denver, Colo., for plaintiffs.

James W. Winchester, Asst. U.S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

Plaintiff, Arctic Catering, seeks review of an Immigration and Naturalization Service ("INS") decision denying the visa application of one of its employees, Frederick G. MacMillan.

I. Background.

In 1983, MacMillan, a citizen of Canada, entered the United States on a non-immigrant "L" visa awarded under 8 U.S.C. § 1101(a)(15)(L). He went to work for Arctic Catering. While in the United States, MacMillan's career with Arctic thrived. In 1986, he was promoted to his current position as general manager. The general manager at Arctic is one notch below president of the company. MacMillan oversees the operation of the corporation which grosses approximately 3.5 million dollars annually. His responsibilities include: bidding and negotiating contracts with large corporate clients; corporate financial planning; technical design; and purchasing sophisticated equipment.

Arctic's business is catering to the living needs of workers at geophysical drilling and mining camps in remote regions of the world. The remote location of Arctic's clients requires complex logistical planning and operations. The exhibits attached to the plaintiff's complaint attest to MacMillan's skill and success as general manager of Arctic Catering.

On August 22, 1986, MacMillan and Arctic applied to the INS for a "third preference" immigrant visa under the terms of 8 U.S.C. § 1153(a)(3). For these prospective immigrants, Congress established quotas and a preference system. The higher the preference category, the shorter the wait for an immigrant visa. Third preference visas are reserved, in part, for immigrants who are "members of the professions." Congress expressed, as a matter of immigration policy, a preference for immigrants who are "professionals."1

Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151(a) of this title, to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States, and whose services in the professions, sciences, or the arts are sought by an employer in the United States.

8 U.S.C. § 1153(a)(3) (1970 & Supp.1990). The issue is whether MacMillan is a "professional" or his position with Arctic Catering qualifies him as a "member of the professions." The INS believes it does not.

Congress defined the term, profession, by example. "The term `profession' shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." 8 U.S.C. § 1101(a)(32) (1970) (emphasis added) The Administrative Appeals Unit, (AAU) in its final denial of MacMillan's application for a third preference visa, stated, "Managerial positions are generally not considered jobs which require the services of members of the professions." (AAU Decision, Oct. 28, 1989, at 3).

The parties filed cross-motions for summary judgment. Under FRCP 56, summary judgment is proper upon a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In this case, there is no dispute about the operational activities of Arctic Catering or the personal qualifications of MacMillan. The sole issue is whether MacMillan's position satisfies the statutory requirements of a "profession." Since the issue is one of statutory interpretation, the case is resolved by summary judgment.

II. Standard for Review of Agency Decision.

In reviewing the interpretation of "profession" asserted by the INS, I am bound by the Supreme Court's direction in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter ... If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id. at 842-43, 104 S.Ct. at 2781-82 (footnotes omitted).

Following the instructions in Chevron, the Tenth Circuit explained interpretations of a statute by an agency which is charged with its enforcement are "entitled to considerable deference and should be disturbed only if unreasonable." Dole v. Occupational Safety & Health Review Comm'n, 891 F.2d 1495, 1496-97 (10th Cir. 1989); rev'd sub nom. on other grounds, Martin v. Occupational Safety & Health Review Comm'n, ___ U.S. ___, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). Once the reviewing court determines the agency's interpretation is reasonable, the court may not disregard the agency decision even if the court prefers a different interpretation. The Tenth Circuit held, "An agency's interpretation of a statute entrusted to that agency for administration should be accepted if it is a reasonable one, even if another interpretation may exist that is equally reasonable." Utah Power & Light v. Secretary of Labor, 897 F.2d 447, 450 (10th Cir.1990).

The issue in this case is whether the general manager position at Arctic requires a "member of the professions." If so, MacMillan may be counted as a "professional" by virtue of his position with Arctic and his visa application is approved. This "precise issue in question" was not addressed by Congress. Congress supplied examples of occupations which qualify as professions. From this list, Congress intended the reader to deduce a definition of "profession" by isolating the common thread running through the enumerated occupations. Since Congress did not address MacMillan's specific position, I conclude, under Chevron, the term "profession" is ambiguous.

Since the term is ambiguous, the next inquiry is whether the "agency's answer is based on a permissible construction of the statute," Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. Under the Tenth Circuit's decisions in Dole and Utah Power & Light, I review the interpretation articulated in the INS decision for reasonableness. Showing deference to the agency, I will not attach a different interpretation to the word "profession" if I conclude the agency's reading is reasonable.

III. Reasonableness of Agency Decision.

The final INS Administrative Appeal Unit decision explains the INS' conception of a "professional." A "professional," it is said, is a person who, by virtue of a course of study culminating in at least a baccalaureate degree, possesses special knowledge and training. The schooling must be specifically tailored to people entering the field. Alternatively, there are exceptions to the degree requirement for special occupations. The job itself can qualify a person as a "member of the professions" if the job is unique and requires special skills which distinguish it from similar positions.

The degree requirement should be an industry-wide standard among similar firms and institutions, or, in the alternative, an employer may demonstrate that the duties of the particular occupational position are so unique that they can only be performed by a member of the professions and require abilities beyond the industry standard. Additionally, it must be shown the employer normally imposes the requirement.

(AAU Decision, Oct. 28, 1989, at 3). Hence, an enterprise qualifies as a profession by limiting members to those who obtain specific degrees. Alternatively, a particular position will be deemed to require a "member of the professions" if the position is so complex — exceeding normal industry standards — it can only be filled by someone with unique abilities. This person is thus deemed a "professional."

First, the "specific degree" component of the INS interpretation of the term profession is reasonable.2 Each of the professions enumerated by Congress requires a specific course of study. The mere award of a college degree, however, is not an admission into a profession. Every college graduate is not a "professional."

Hence, INS' decision that Arctic and MacMillan fall short of the specific degree requirements is reasonable. In this case, there is no indication Arctic normally requires employees of MacMillan's position to possess specific degrees. Also, Arctic failed to prove similar firms require employees with specific degrees in similar positions. MacMillan himself does not have the kind of degree which satisfies the INS requirement. Although he boasts two baccalaureate degrees from Canadian universities, the degrees are in fields unrelated to his duties at Arctic.

Second, the "unique" abilities component fills a gap left by the specific degree requirement. Likewise, it is reasonable. While every degree does not assure membership in a profession, every profession does not have a corresponding degree. The INS recognizes this incongruity and conducts a factual inquiry into the specific responsibilities and complexity of the proposed...

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