Hall v. McLaughlin
| Citation | 864 F.2d 868 |
| Decision Date | 13 January 1989 |
| Docket Number | No. 87-5322,87-5322 |
| Parties | Eric G. HALL and Hall Enterprises, Inc., Appellants, v. Ann D. McLAUGHLIN, Secretary of Labor, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-01238).
Patrick J. Cole, Washington, D.C., for appellants.
Frank P. Buckley, U.S. Dept. of Labor, of the bar of the Supreme Court of Massachusetts, pro hac vice, by special leave of court, with whom Jay B. Stephens, U.S. Atty., John D. Bates, R. Craig Lawrence, and James N. Owens, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Joseph E. diGenova, U.S. Atty., * and Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered appearances for appellee.
Before WALD, Chief Judge, and STARR and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Appellant Eric Hall, a Pakistani national, is a founder and corporate president of appellant Hall Enterprises, Inc. Hall Enterprises in 1982 applied to the Secretary of Labor (the "Secretary") for "labor certification," which entails a determination that the employment of an alien--in this case, the continued employment of Eric Hall as corporate president--would not displace qualified available domestic workers and would not adversely affect the market for domestic labor. Had the Secretary granted labor certification, Eric Hall would have become eligible for an immigrant visa, i.e., a visa authorizing permanent residence in the United States. Without labor certification, his continued presence in the United States is subject to successive extensions of the nonimmigrant visa he now holds.
The Secretary denied labor certification on the premise that Eric Hall and Hall Enterprises are effectively one and the same, so that no genuine employment relationship exists. The lack of a genuine employment relationship, the Secretary held, brings Eric Hall under a regulation prohibiting the grant of labor certification to any alien who works for himself. Appellants' challenge to the Secretary's decision was dismissed by the district court. Appellants seek reversal of the district court's order, claiming that the Secretary acted arbitrarily and capriciously in finding the absence of a genuine employment relationship. Because we find that the Secretary's application of her regulations was rational and consistent with prior labor certification decisions, we affirm the district court.
Section 212 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182 (the "Act"), provides that several enumerated classes of aliens are to be denied visas and excluded from the United States. Among these are aliens seeking to enter the country for the purpose of performing skilled or unskilled labor, unless the Secretary grants labor certification to a particular alien based on criteria set out in the statute. Id. Sec. 212(a)(14), 8 U.S.C. Sec. 1182(a)(14). Specifically, the Act provides that labor certification is not to be granted unless the Secretary certifies that--
(A) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts), and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.
Id. If labor certification is denied, the alien is subject to exclusion from the United States unless he can obtain a visa on some other grounds. Id. 1 If labor certification is granted, the alien not only is removed from the class of excludable aliens but also becomes eligible for an immigrant visa. 8 U.S.C. Sec. 1153(a)(6). By law, a certain number of immigrant visas are allotted annually to each country of origin. 8 U.S.C. Sec. 1152(a). An alien to whom labor certification is granted becomes a "sixth-preference" alien, or, for a narrow category of professionals and exceptionally talented persons, a "third-preference" alien. 8 U.S.C. Sec. 1153(a)(3), (a)(6). The "sixth preference," which Eric Hall seeks, means five other categories of aliens are further ahead in line for the allocation of immigrant The Secretary has promulgated regulations to govern the labor certification process in general and specifically to implement the worker availability standard. 20 C.F.R. Part 656 (1988). Under the regulations, an application indicating a genuine employer-employee relationship receives entirely different treatment from that accorded an application arising from circumstances deemed to constitute self-employment.
visas to aliens originating from a given country. 8 U.S.C. Sec. 1153(a).
An application for certification is to be filed by an employer seeking to employ a particular alien. 20 C.F.R. Sec. 656.21(a). The application must contain, among other things, a job description setting minimum qualifications; the qualifications must meet certain requirements and must not be unduly restrictive. Id. Sec. 656.21(b)(2). In a case not involving self-employment, processing of the application begins with a determination by the Secretary, on the basis of general labor market data, as to the availability of qualified domestic workers for the job. If the data indicate that none are available, certification must be granted. See Production Tool Corp. v. Employment and Training Admin., 688 F.2d 1161, 1170 (7th Cir.1982); Acupuncture Center of Washington v. Dunlop, 543 F.2d 852, 858-60 (D.C.Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976); 20 C.F.R. 656.24(b)(2)(ii)-(iv). If it is determined that qualified workers are likely to be available locally, the employer must engage in recruitment efforts, in cooperation with the local job service office, to determine whether any of those workers are willing to take the job opportunity. 20 C.F.R. Secs. 656.21(f), 656.21(g), 656.24(b)(2)(i). If qualified United States workers do apply for the job, the applicant alien is denied labor certification; if not, the alien merits certification.
Where a genuine employer-employee relationship is not present, a different set of rules applies and labor certification is denied outright in all cases. 20 C.F.R. Secs. 656.20(c)(8), 656.50. 2 This per se rule barring certification for self-employed persons is applied not only to solo practitioners, but also to aliens who have an ownership stake in a corporation under circumstances deemed to amount to self-employment. The Secretary's rationale for the rule is that the best way to determine whether labor certification would harm United States workers is to require the employer to undertake a genuine effort to recruit a domestic worker. See Br. for Appellee 11-16. Self-employment, in the Secretary's view, offers no opportunity for genuine recruitment. The Secretary posits that under certain circumstances (the exact nature of which we discuss, infra Part II), a corporation that applies for certification on behalf of an alien who is its part-owner cannot be expected to make a serious effort to replace the alien with a United States worker. The present case concerns the application of the self-employment regulations to an alien who is not self-employed in the solo sense but is part-owner of the business enterprise that applied for certification on his behalf.
Eric Hall, a Pakistani national, currently resides in the United States under an E-2 visa, which is a form of nonimmigrant visa that permits an alien to come to the United States to develop and direct the operations of a business enterprise in which he has invested a substantial amount of capital. 8 U.S.C. Sec. 1101(a)(15)(E)(ii). Continued residence in the United States under an E-2 visa requires that the alien periodically obtain an extension of his visa from the Immigration and Naturalization Service. 8 C.F.R. Sec. 214.2(e) (1988). Although extensions are routinely granted and E-2 status is Eric Hall and his wife Marjorie established Hall Enterprises in August 1982, incorporating it under the laws of Maryland. Initially, each of the Halls owned 50 percent of the stock. The company is engaged in the business of importing and exporting Pakistani furniture, giftware and military spare parts. On December 12, 1982, Eric Hall sold 490 of his 500 shares of Hall Enterprises stock to Joseph J. Bernot, retaining an option to repurchase under certain conditions. Two weeks later, on December 29, 1982, Hall Enterprises applied for labor certification for Eric Hall, who was already serving as corporate president.
therefore considered nearly as desirable as permanent resident status, 3 Eric Hall now seeks an immigrant visa which would confer permanent resident status.
A Labor Department certifying officer denied certification on March 13, 1985. The certifying officer found that there was no job opportunity clearly open to United States workers as the regulations require; no employer-employee relationship truly existed, in that the alien controlled the corporation that had declined to supplant him with a United States worker. The certifying officer based these findings on the presence of family members (including Eric Hall) in the corporate structure, the Hall family's ownership of 51 percent of the stock, the transfer of most of Eric Hall's stock just two weeks prior to the application for certification, and the premise that Eric Hall's position as president made it unlikely that he would be replaced by a qualified United States worker. Appellants' Appendix ("A.A.") 64-66.
...
To continue reading
Request your trial
-
Cross-Sound Ferry Services, Inc. v. I.C.C.
...analysis indicating that prior policies and standards are being deliberately changed, not casually ignored." See Hall v. McLaughlin, 864 F.2d 868, 872 (D.C.Cir.1989) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233,......
-
Kirk v. Comm'r of Soc. Sec. Admin.
...basic tenet of administrative law that agencies should be free to fashion their own rules of procedure"). See also Hall v. McLaughlin , 864 F.2d 868, 873 (D.C. Cir. 1989) ("[W]here a particular agency action does not appear to be inconsistent with prior decisions, the agency's explanation n......
-
Checkosky v. S.E.C.
...alike, they act arbitrarily, in violation of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A). See, e.g., Hall v. McLaughlin, 864 F.2d 868, 872 (D.C.Cir.1989); FEC v. Rose, 806 F.2d 1081, 1089 (D.C.Cir.1986). If an agency believes that factual variations should lead to variations i......
-
Gilbert v. Wilson, Civil Action No. 14–1364 (BAH)
...must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so."); Hall v. McLaughlin , 864 F.2d 868, 872 (D.C. Cir. 1989) ("Divergence from agency precedent demands an explanation."). If an agency "glosses over or swerves from prior precedents w......
-
Shifting sands: the limits of science in setting risk standards.
...our responsibility to determine whether her decision is 'arbitrary [or] capricious....'" (citation omitted)); Hall v. McLaughlin, 864 F.2d 868, 872 (D.C. Cir. 1989) ("Reasoned decisionmaking requires treating like cases alike; an agency may not casually ignore its own past decisions. Diverg......