Defensor v. Meissner, Nos. 98-60340

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPatrick E. Higginbotham
Parties(5th Cir. 2000) FEBE ROSE BELLE E DEFENSOR; VINTAGE HEALTH RESOURCES INC PLAINTIFFS -APPELLANTS v. DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; VIVIAN MAY P SIBAYAN PLAINTIFFS - APPELLANTS Vintage Health Resources Inc.; Vivian May P. Sibayan, Plaintiffs-Appellants, v. DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; MELODY E MENDOZA PLAINTIFFS - APPELLANTS Vintage Health Resources Inc.; Melody E. Mendoza, Plaintiffs-Appellants, v. DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; FROILENE FE V ATENDIDO PLAINTIFFS - APPELLANTS Vintage Health Resources Inc.; Froilence Fe V. Atendido, Plaintiffs-Appellants, v. DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; JOCELYN A BAYUDANG PLAINTIFFS - APPELLANTS Vintage Health Resources Inc.; Jocelyn A. Bayudang, Plaintiffs-Appelants, v. DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; MARIA CECILIA D CONSOLACION PLAINTIFFS - APPELLANTS Vintage Health Resources Inc.; Maria Cecilia D. Consolacion, Plaintiffs-Appellants, v. DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; LEONORA B CACERES PLAINTIFFS - APPELLANTS Vintage Health Resources Inc.;Leonora B. Caceres, Plaintiffs-Appellants, v. DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE to 98-60362
Decision Date17 January 2000
Docket Number98-60357,Nos. 98-60340

Page 384

201 F.3d 384 (5th Cir. 2000)
FEBE ROSE BELLE E DEFENSOR; VINTAGE HEALTH RESOURCES INC PLAINTIFFS -APPELLANTS
v.
DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; VIVIAN MAY P SIBAYAN PLAINTIFFS - APPELLANTS
Vintage Health Resources Inc.; Vivian May P. Sibayan, Plaintiffs-Appellants,
v.
DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; MELODY E MENDOZA PLAINTIFFS - APPELLANTS
Vintage Health Resources Inc.; Melody E. Mendoza, Plaintiffs-Appellants,
v.
DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; FROILENE FE V ATENDIDO PLAINTIFFS - APPELLANTS
Vintage Health Resources Inc.; Froilence Fe V. Atendido, Plaintiffs-Appellants,
v.
DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; JOCELYN A BAYUDANG PLAINTIFFS - APPELLANTS
Vintage Health Resources Inc.; Jocelyn A. Bayudang, Plaintiffs-Appelants,
v.
DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; MARIA CECILIA D CONSOLACION PLAINTIFFS - APPELLANTS
Vintage Health Resources Inc.; Maria Cecilia D. Consolacion, Plaintiffs-Appellants,
v.
DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE VINTAGE HEALTH RESOURCES INC; LEONORA B CACERES PLAINTIFFS - APPELLANTS
Vintage Health Resources Inc.;Leonora B. Caceres, Plaintiffs-Appellants,
v.
DORIS MEISSNER, COMMISSIONER OF THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE DEFENDANT - APPELLEE
Nos. 98-60340, 98-60357 to 98-60362
U.S. Court of Appeals, Fifth Circuit
January 17, 2000

Page 385

Appeals from the United States District Court for the Northern District of Mississippi.

Before Higginbotham and Smith, Circuit Judges, and FALLON*, District Judge.

Patrick E. Higginbotham, Circuit Judge:

Vintage Health Resources and seven Filipino nurses appeal the district court's affirmance of the Immigration & Naturalization Service's denial of H1-B visas for the nurses. Because Vintage did not produce evidence sufficient to show that the nurses were members of a "specialty occupation," as required under 101(a)(15)(H)(i)(B) of the Immigration and Nationality Act, we AFFIRM the denial of H1-B visas.

I.

Vintage is a medical contract service agency which brings foreign nurses into the U.S. locating jobs for them at hospitals as registered nurses. Vintage sought to have seven Filipino nurses classified as H-1B non-immigrants, performing services in a "specialty occupation." H-1B aliens in a specialty occupation may spend up to six years in the U.S., rather than the one year allowed for regular business travelers.

The INS denied each petition, stating that Vintage failed to establish that the nurses worked in a "specialty occupation," under 101(a)(15)(H)(i)(B) of the Immigration and Nationality Act. See 8 U.S.C. 1101(a)(15)(H)(i)(B). A "specialty occupation" is defined in part as one in which the "attainment of a bachelor's or higher degree . . . (or its equivalent) [is] a minimum for entry into the occupation in the United States." Id. 1184(i)(1)(B).

Vintage produced evidence that it only hired nurses with B.S.N. degrees. The INS claimed, however, that the proper focus of inquiry is not what Vintage as an employment agency required, but instead what the contracting facility required, and

Page 386

Vintage failed to establish that the medical facilities where the nurses would actually work required bachelor degrees. At best, Vintage showed that such facilities preferred nurses with B.S.N. degrees, but did not require that nurses have B.S.N. degrees.

The seven nurses whose petitions were denied appealed to the INS Administrative Appeals Unit, which upheld the denial. The appellants then filed complaints in federal district court, seeking to compel the INS to approve their petitions. The district court dismissed their claims, determining that despite some ambiguity in the regulations, the statutory requirement for a "specialty occupation" was clear: the occupation must be one in which the attainment of a bachelor's degree or higher is the minimum for entry into that occupation, and the nurses had failed to satisfy that requirement. The nurses filed separate appeals, which were then consolidated.

II.

Under the Administrative Procedure Act, agency action is reviewed solely to determine whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See 5 U.S.C. 706. In general, a federal agency's interpretation of a statute whose administration is entrusted to it is to be accepted unless Congress has spoken directly on the issue. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45 (1984). Even if statutory or regulatory language is ambiguous, deference is usually given to the agency's interpretation. See United States v. Moses, 94 F.3d 182, 185 (5th Cir. 1996). Thus, Vintage has a high hurdle to overcome in this case which primarily concerns an agency's interpretation of the following statutes and regulations.

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38 practice notes
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...specific specialty (or its equivalent)." 8 U.S.C. § 1184(i)(1) (2000); see also 8 C.F.R. § 214.2(h)(4)(ii) (2003); Defensor v. Meissner, 201 F.3d 384, 385-88 (5th Cir. 2000) (explaining H-1B requirements). Qumri's position as a Senior Financial Systems Analyst qualifies as a "specialty Qumr......
  • City of Arlington v. Fed. Commc'ns Comm'n, No. 10–60039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 23, 2012
    ...In addition, the volume of public response to the applications was extremely high.”). FN141. See 5 U.S.C. § 706; Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir.2000) (“Under the Administrative Procedure Act, agency action is reviewed solely to determine whether it is arbitrary, capricious......
  • Itserve Alliance, Inc. v. Cissna, Civil Action No. 18-2350 (RMC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 10, 2020
    ...(last visited Feb. 28, 2020).13 The denials to Plaintiffs' petitions often reference Defensor v. Meissner , 201 F.3d 384, 387 (5th Cir. 2000), as support for the CIS requirement of specific work assignments. Defensor held that the contractor employer could be required to show that the entit......
  • Evangelical Lutheran Church in America v. I.N.S., No. CIV.A. 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...specific specialty (or its equivalent)." 8 U.S.C. § 1184(i)(1) (2000); see also 8 C.F.R. § 214.2(h)(4)(ii) (2003); Defensor v. Meissner, 201 F.3d 384, 385-88 (5th Cir.2000) (explaining H-1B requirements). Qumri's position as a Senior Financial Systems Analyst qualifies as a "specialty Qumri......
  • Request a trial to view additional results
37 cases
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...specific specialty (or its equivalent)." 8 U.S.C. § 1184(i)(1) (2000); see also 8 C.F.R. § 214.2(h)(4)(ii) (2003); Defensor v. Meissner, 201 F.3d 384, 385-88 (5th Cir. 2000) (explaining H-1B requirements). Qumri's position as a Senior Financial Systems Analyst qualifies as a "specialty Qumr......
  • City of Arlington v. Fed. Commc'ns Comm'n, No. 10–60039.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 23, 2012
    ...In addition, the volume of public response to the applications was extremely high.”). FN141. See 5 U.S.C. § 706; Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir.2000) (“Under the Administrative Procedure Act, agency action is reviewed solely to determine whether it is arbitrary, capricious......
  • Itserve Alliance, Inc. v. Cissna, Civil Action No. 18-2350 (RMC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 10, 2020
    ...(last visited Feb. 28, 2020).13 The denials to Plaintiffs' petitions often reference Defensor v. Meissner , 201 F.3d 384, 387 (5th Cir. 2000), as support for the CIS requirement of specific work assignments. Defensor held that the contractor employer could be required to show that the entit......
  • Evangelical Lutheran Church in America v. I.N.S., No. CIV.A. 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...specific specialty (or its equivalent)." 8 U.S.C. § 1184(i)(1) (2000); see also 8 C.F.R. § 214.2(h)(4)(ii) (2003); Defensor v. Meissner, 201 F.3d 384, 385-88 (5th Cir.2000) (explaining H-1B requirements). Qumri's position as a Senior Financial Systems Analyst qualifies as a "specialty Qumri......
  • Request a trial to view additional results

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