Defensor v. Meissner, s. 98-60340
| Citation | 201 F.3d 384 |
| Decision Date | 17 January 2000 |
| Docket Number | 98-60357,Nos. 98-60340,s. 98-60340 |
| 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 |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeals from the United States District Court for the Northern District of Mississippi.
Before Higginbotham and Smith, Circuit Judges, and FALLON*, District 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.
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 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.
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.
Title 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." Section 1184(i)(1) defines "specialty occupation" as an occupation which requires
(A) theoretical and practical application of a body of highly specialized knowledge, and
(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.
8 U.S.C. 1184(i)(1).
While the preceding is the statutory definition of "specialty occupation," the related regulations state that a
[s]pecialty 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.
Additionally, 8 C.F.R. 214.2(h)(4)(iii)(A) defines a standard for specialty occupation positions. This section states that
[t]o qualify as a specialty occupation, the position must meet one of the following criteria:
(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 or 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.
Id. 214.2(h)(4)(iii)(A).
Section 214.2(h)(4)(iii)(A) appears to implement the statutory and regulatory definition of specialty occupation through a set of four different standards. However, this section might also be read as merely an additional requirement that a position must meet, in addition to the statutory and regulatory definition. The ambiguity stems from the regulation's use of the phrase "to qualify as." In common usage, this phrase suggests that whatever conditions follow are both necessary and sufficient conditions. Strictly speaking, however, the language logically...
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