GPM Indus. v. United States Citizenship & Immigration Servs.
| Decision Date | 10 February 2023 |
| Docket Number | 21-cv-24007-WILLIAMS/DAMIAN |
| Parties | GPM INDUSTRIAL, INC., Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court on Plaintiff, GPM Industrial Inc.'s (“GPM Industrial” or “Plaintiff”), Motion for Summary Judgment [ECF No. 40], filed May 12, 2022, and Defendants' Cross-Motion for Summary Judgment [ECF No. 46], filed June 2, 2022. This matter was referred to the undersigned by the Honorable Kathleen M. Williams, United States District Judge, for a Report and Recommendation. [ECF No. 55]. See 28 U.S.C. § 636(b)(1)(B).
The undersigned has reviewed the parties' memoranda [ECF Nos 40, 42, 44, and 48], the pertinent portions of the record, and all relevant authorities and is otherwise fully advised in the premises. For the reasons set forth below, it is recommended that Plaintiff's Motion for Summary Judgment [ECF No. 40] be denied and that Defendants' Cross-Motion for Summary Judgment [ECF No. 46] be granted.
GPM Industrial filed this lawsuit pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”), against Defendants, United States Citizenship & Immigration Services (“USCIS”) and Ur M. Jaddou, in her official capacity as Director of USCIS[1](collectively, “Defendants”), seeking review of Defendants' decision to deny an Immigrant Petition for Alien Worker (Form I-140) submitted by GPM Industrial on behalf of the beneficiary, Gustavo Gamboa Villaroel (“Gamboa”), seeking to classify him as a multinational executive in order to obtain an employment-based, first preference (“EB-1”) visa on his behalf, pursuant to the Immigration and Nationality Act (“INA”).
Before discussing the facts presented, it is helpful to understand the relevant provisions of the INA governing the petition at issue upon which Plaintiff's claims are based.
Each year, USCIS grants a limited number of EB-1 visas to certain “multinational executives and managers” who serve “in a capacity that is managerial or executive.” 8 U.S.C.§ 1153(b)(1)(C); see also Saga Overseas, LLC v. Johnson, 200 F.Supp.3d 1341, 1346 (S.D. Fla. 2016) (Cooke, J.); Khamisani v. Holder, No. H-10-0728, 2011 WL 1232906, at *3 (S.D. Tex. Mar. 31, 2011). Eligibility for the EB-1 visa is governed by the INA and its related implementing regulations.
Pursuant to the statute, preference is given to an alien who, in the three years preceding the alien's application for classification and admission into the United States, “has been employed for at least [one] year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof” and “seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.” 8 U.S.C. § 1153(b)(1)(C); see also Sunshine Co. Food Distrib., Inc. v. USCIS, 362 Fed.Appx. 1, 3 (11th Cir. 2010). Therefore, under the INA, a petitioner must establish both that (1) it has a qualifying relationship with a foreign legal entity, such as a parent-subsidiary relationship, and (2) the beneficiary is employed in a position that is primarily managerial or executive.
A United States employer seeking to hire an alien in this visa category must file a Form I-140 Petition with USCIS on behalf of the intended beneficiary. See 8 U.S.C. § 1153(b)(1)(C); 8 C.F.R. § 204.5(j)(1). The employer must provide evidence that the beneficiary will be employed in a “managerial” or “executive” capacity, which shall specifically include a detailed description of the services to be performed by the beneficiary, among other evidence. 8 C.F.R. § 214.2(1)(3)(ii).
The INA defines “managerial capacity” as follows:
[A]n assignment within an organization in which the employee primarily-
(i) manages the organization, or a department, subdivision, function, or component of the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.
8 U.S.C. § 1101(a)(44)(A).
The INA defines “executive capacity” as follows:
[A]n assignment within an organization in which the employee primarily-
(i) directs the management of the organization or a major component or function of the organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
8 U.S.C. § 1101(a)(44)(B).
Regarding a qualifying relationship, the statute mandates that an individual petition be accompanied by “[e]vidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of [the INA].” 8 C.F.R. § 214.2(1)(3). Section 214.2(1)(1)(ii), in turn, states, in relevant part:
(G) Qualifying organization means a United States or foreign firm, corporation, or other legal entity . . . [that]
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in paragraph (1)(1)(ii) of this section;
The statute's definition of “subsidiary” provides:
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50-joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
Further, staffing levels are a relevant factor in determining managerial or executive capacity:
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.
Significantly, the statutory and regulatory requirements differ between immigrant and nonimmigrant visas. Each petition is separate and independent, and USCIS must adjudicate each on its own merit. The fact that a beneficiary was previously deemed eligible as an L-1A nonimmigrant visa[2] does not automatically establish the beneficiary's eligibility as an immigrant. See Matter of Church Scientology Int'l, 19 I. & N. Dec. 593, 597 (BIA 1988); see also National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1476 (5th Cir. 1989) (). Further, the benefits of an immigrant visa-permanent residence-are distinct from those provided by a nonimmigrant visa-only temporary residence.
A decision to deny an I-140 petition, despite the earlier grant of an L-1A visa, does not violate the APA. See 8 U.S.C. § 1361 (). Certainly, “many cases where I-140 petitions were denied involved aliens who already enjoyed classification L nonimmigrant status.” Q Data Consulting, Inc. v. I.N.S., 293 F.Supp.2d 25, 30 (D.D.C. 2003) (citing IKEA U.S., Inc. v. U.S. Dep't of Justice, I.N.S., 48 F.Supp.2d 22, 23 (D.D.C. 1999); Fedin Bros. Co. v. Sava, 724 F.Supp. 1103, 1108 (E.D.N.Y. 1989)). In some cases, “L-1A classification[s] are simply approved in error, especially nonimmigrant visa petitions that the INS spends less time deciding than I-140 petitions.” Id. Therefore, USCIS “is not required to approve an application on the basis of a prior erroneous approval where eligibility is not demonstrated.” Hakimuddin v. Dep't of Homeland Sec., No. CIV 4:08-CV-1261, 2009 WL 497141, at *6 (S.D. Tex. 2009) (citations omitted).
With this statutory and regulatory framework in mind, the undersigned considers the facts of this case and the bases for GPM...
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