Hong Kong TV Video Program, Inc. v. Ilchert

• Decision Date: 04 March 1988
• Docket Number: No. C-87-2062-WWS.,C-87-2062-WWS.
• Citation: 685 F. Supp. 712
• Parties: HONG KONG T.V. VIDEO PROGRAM, INC., Plaintiff, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Northern District of California

685 F. Supp. 712

HONG KONG T.V. VIDEO PROGRAM, INC., Plaintiff, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant.

No. C-87-2062-WWS.

United States District Court, N.D. California.

March 4, 1988.

Martin J. Lawler, Lawler & Lawler, San Francisco, Cal., for plaintiff.

Susan L. Kamlet, Sp. Asst. U.S. Atty., San Francisco, Cal., for defendant.

MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

On September 19, 1985, plaintiff Hong Kong T.V. Video Program, Inc., submitted a visa petition to the Immigration and Naturalization Service ("INS") to classify See Soo Chuan ("beneficiary") as a temporary worker of "distinguished merit and ability" pursuant to section 101(a)(15)(H)(i) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1101(a)(15)(H)(i). The visa would enable the beneficiary to work as the plaintiff's president and chief executive officer.

The INS denied the petition on the grounds that a president and chief executive officer is not a member of a profession, that the beneficiary was not a professional because he did not have a university degree, that the person holding the position of president and chief executive officer of plaintiff was not required to be preeminent, and that the beneficiary was not preeminent in his field. The Administrative Appeals Unit ("AAU") dismissed plaintiff's appeal on July 8, 1986.

On April 30, 1987, plaintiff filed this action in federal court, seeking a declaration that the INS's denial of the petition was an abuse of discretion. Plaintiff moved for summary judgment, and defendant filed a cross-motion for summary judgment. A hearing on the motions was held on October 2, 1987. At the hearing, the Court stated that on the record as it then stood, the INS's denial appeared to be arbitrary and capricious and not supported by substantial evidence. However, the Court deferred ruling on the motions and gave the INS an opportunity to show cause why the plaintiff's nonimmigrant visa petition on behalf of the beneficiary should not be granted. The purpose of the deferral was to allow the INS to reconsider its decision.

The INS reopened plaintiff's visa petition proceedings for consideration of the factors set forth by the Court on the record and on December 29, 1987, issued a revised decision which again dismissed plaintiff's appeal and denied plaintiff's visa petition. That decision is now before the Court on the parties' previously filed and deferred cross-motions for summary judgment.

FACTS

Plaintiff, a California corporation, imports and distributes motion picture and drama series foreign language video cassettes in Cantonese, Mandarin, Vietnamese, Cambodian, Thai, Korean, and Spanish languages. It is the largest Asian language video cassette distributor in the United States. It employs over seventy United States workers and has gross annual sales revenues of over eight million dollars.

Plaintiff seeks to employ the beneficiary as its president and chief executive officer. The beneficiary has twenty years of experience in business including temporary chief executive officer and president of plaintiff from 1981 to the present; special business advisor at Lumistar International Ltd. in Hong Kong from 1979 to the present; commission agent and coordinator for Lumistar International (Canada) Ltd. in Ontario from 1977 to 1980; joint venture in Dek's Corporation, an import/export business in Singapore from 1971 to 1976; sales manager with Star Trade Electronics Ltd. from 1969 to 1971; sales representative at Bright Office Equipment from 1964 to 1966; sales representative at Hageneyer Trading Co. Pte. Ltd. in Singapore from 1966 to 1969; sales executive with NCR Singapore, 1967-68; and special accounts sales representative for Olivetti in Singapore from 1967 to 1968.

As plaintiff's president, the beneficiary oversees monthly operating expenses of $150,000; controls a standard inventory of $500,000; is responsible for corporate, financial planning, marketing, and promotional strategy; negotiates contracts with United States licensees and Hong Kong HKTVB; supervises legal actions against video "pirates"; works on videotape anti-pirate technology; and makes high level decisions involving technical, legal and fiscal matters, capital improvements, and copyright infringement.

In support of the visa petition, plaintiff submitted a report from Oren Harari, a professor at McLaren College of Business, University of San Francisco. Professor Harari evaluates the professional experiences of students to determine whether their work experience may be translated into university credit. He found that the beneficiary was operating at a senior executive level of management and that his position, as president and chief executive officer, normally required an MBA. He also concluded that the beneficiary's record was "far more superior and impressive than the records which are ordinarily granted graduate credit" and that the beneficiary's work experience was equivalent to the content of a typical MBA program.

Professor Harari stated that the beneficiary could teach university level courses in Business Law (domestic and international, customs, copyright, trade, litigation), International Business (banking and currency exchange, capital budgeting, portfolio analysis, international strategic management and marketing), and Marketing Management (strategy, promotion, advertising, pricing, distribution, subcontracting, brokering and sales). He also stated that the beneficiary's impressive and extensive experience, permitted him to be a guest lecturer in MBA courses dealing with marketing, sales, finance, operation, law, and personnel relations.

DISCUSSION

A. Standard of Review

The Court reviews an administrative denial of a visa petition for abuse of discretion. Occidental Eng'g Co. v. INS, 753 F.2d 766, 768 (9th Cir.1985). If a decision is based on an improper understanding of the law, or if it is not supported by substantial evidence, the INS has abused its discretion. Lee v. INS, 573 F.2d 592, 594 (9th Cir.1978); Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir. 1971). Judicial relief may also be warranted if it affirmatively appears that the application was turned down for a reason out-side the contemplation of Congress. Kaloudis v. Shaughnessy, 180 F.2d 489 (2d Cir.1950); see also Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957).

Section 101(a)(15)(H)(i) permits "an alien having a residence in a foreign country which he has no intention of abandoning ... who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability" to obtain an H-1 nonimmigrant visa.

The distinguished merit and ability test under this statute involves a two-step assessment. First, a person must occupy a position classifiable as a profession within the meaning of section 101(a)(32) to be classifiable as an alien of distinguished merit and ability. Secondly, the person must herself be a professional. Matter of Gen. Atomic Co., 17 I. & N. Dec. 537 (Comm.1980); Matter of Essex Cryogenics Indus., Inc., 14 I. & N.Dec. 196 (Dep.Assoc.Comm.1972). Alternatively, aliens of prominence, renown, or preeminence in their field may be classified as aliens of distinguished merit and ability. Matter of Shaw, 11 I. & N.Dec. 277 (D.D.1965).

B. The Occupation of President as a Profession

In the December 29, 1987 dismissal of plaintiff's appeal, the INS concluded that the beneficiary's position, president and chief executive officer of a multi-million dollar company, was not a profession. The INS stated:

Absent actual evidence a specific academic degree is necessary to perform the beneficiary's duties as a company president and chief executive officer and is, in fact, an industry standard for that position, it may not be concluded that the proposed employment is professional employment within the meaning of section 101(a)(32).

Decision of the AAU at 4 (Dec. 29, 1987). The INS concluded that since a president is a type of business manager and only forty percent of business managers have academic degrees, the occupation of president does not require a degree and therefore is not a profession.

The INS assumes that in order for an occupation to be a profession under section 101(a)(32), entrance into that occupation must, under the industry's standards, require at least a baccalaureate degree.

Examination of the occupations named in section 101(a)(32) of the Act indicates the following characteristics common to all: (1) recognition as a member of those professions normally requires the successful completion of a specified course of education on the college or university level, culminating in the attainment of a specific type of degree or diploma; and (2) the attainment of such a degree or diploma is usually the minimum requirement for entry into those occupations.

Matter of Asuncion, 11 I. & N. Dec. 660 (R.C.1966). In this case the INS maintains, therefore, that only occupations which have a degree requirement may be professions under 8 U.S.C. § 1011(a)(32). See Matter of Huckenbeck, 13 I. & N.Dec. 118 (R.C. 1969); Matter of Ahmed, 12 I. & N.Dec. 498 (R.C.1967).

Section 101(a)(32) of the Act states:

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. § 1011(a)(32). (emphasis added) Thus the statute specifically states that the term "profession" is not limited to the occupations enumerated. The fact that...