Int'l Internship Programs v. Napolitano

• Decision Date: 28 March 2012
• Docket Number: Civil Case No. 10–1234 (RJL).
• Citation: 853 F.Supp.2d 86
• Parties: INTERNATIONAL INTERNSHIP PROGRAMS, Plaintiff, v. Janet NAPOLITANO, et al., Defendants.
• Court: U.S. District Court — District of Columbia

853 F.Supp.2d 86

INTERNATIONAL INTERNSHIP PROGRAMS, Plaintiff,

v.Janet NAPOLITANO, et al., Defendants.

Civil Case No. 10–1234 (RJL).

United States District Court, District of Columbia.

March 28, 2012.

Frederic W. Schwartz, Jr., Law Office of Frederic Schwartz, Washington, DC, for Plaintiff.

Durwood H. Riedel, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

[Dkt. # 33, # 37]

RICHARD J. LEON, District Judge.

On December 1, 2010, plaintiff International Internship Programs (“IIP” or “plaintiff”) filed its second amended complaint against the Secretary of the U.S. Department of Homeland Security, Janet Napolitano; the U.S. Citizenship and Immigration Services (the “USCIS”); the Director of the USCIS; the Chief of the USCIS Administrative Appeals Office; the Director of the Vermont Services Center; the Attorney General of the United States; and the United States (collectively, “defendants”), alleging violations of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., and the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 601, et seq. Second Am. Compl., Dec. 1, 2010 [Dkt. # 9] ¶¶ 7–11, 158–201. On December 3, 2010, plaintiff filed a Motion for Preliminary Injunctive Relief. Mot. for Prelim. Inj. [Dkt. # 10]. A hearing was held on December 21, 2010, and this Court denied the motion on July 19, 2011. Mem. Op. (“Prelim.Inj.Op.”), July 19, 2011 [Dkt. # 29] at 2.

On February 21, 2012, our Circuit Court dismissed the plaintiff's appeal as moot because the “intended period of employment [to which the Q–1 visas applied] ended on January 24, 2012,” and “[t]he parties no longer h[ad] a legally cognizable interest in the determination of whether the preliminary injunction was properly denied.” Int'l Internship Programs v. Napolitano, et al., 463 Fed.Appx. 2, 4 (D.C.Cir.2012) (citation and internal quotation marks omitted). The Court of Appeals “express[ed] no opinion on the merits of HP's claims.” Id.

On August 16, 2011, defendants filed a Partial Motion to Dismiss and Partial Motion for Summary Judgment (“Defs.' Mot.”) [Dkt. # 33]. Plaintiff, in turn, filed a Cross–Motion for Summary Judgment (“Pl.'s Mot.”) [Dkt. # 37]. Upon review of the pleadings,¹ the applicable law, and the entire record herein, the Court GRANTS defendants' motion and DENIES plaintiff's motion.

BACKGROUND

I. International Internship Program

IIP is an I.R.C. § 501(c)(3) non-profit corporation that sponsors a cultural exchange program in which visitors from Japan, Korea, Thailand, and China travel to the United States. Second Am. Compl. ¶¶ 6, 44. Program participants are nonresident alien visitors ² who work in primary, secondary, and other educational institutions (the “host schools”) instructing on “the attitude, the customs, history, heritage and traditions of the [participants'] home country.” Id. ¶¶ 42, 45. Each host school determines the exact curriculum offered, but IIP monitors the programs to ensure compliance with IIP guidelines. Id. ¶¶ 48–64. The program typically lasts for an academic “semester.” Id. ¶¶ 72, 85. Participants pay between $5,400 and $8,600 to participate in the program, CertifiedAdministrative Record (“CAR”), Aug. 16, 2011 [Dkt. # 35] at 2498, and in exchange, IIP places the participants in host schools and applies for and secures Q–1 cultural visas ³ for them. Second Am. Compl. ¶¶ 42, 65. IIP also provides a $100 per-month stipend for incidentals to each participant plus $200 per month to a host family that provides the participants with board, meals, and other expenses.⁴Id. ¶¶ 87, 115; Pl.'s Mot. at 11; CAR at 73, 2505. Importantly, neither IIP nor the host schools pay the program participants for their work. Second Am. Compl. ¶¶ 43, 116; Pl.'s Mot. at 26.

II. Statutory and Regulatory Requirements For Q–1 Visas

As part of the Immigration Act of 1990, Pub. L. No. 101–649, 104 Stat. 4978, Congress introduced Q–1 visas to create an international cultural exchange program “to enhance the knowledge of the diversity of other cultures.” Mem. in Supp. of Defs.' Mot. (“Defs.' Mem.”), Aug. 16, 2001 [Dkt. # 33–1] at 4 (quoting H.R.Rep. No. 101–723(I), at 81 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6751); 8 U.S.C. § 1101(a)(15)(Q). After a period of public notice and comment, the final Q–1 rule and regulations were published in November 1992. Defs.' Mem. at 4; Pl.'s Mot. at 25. As part of this final publication, and pursuant to the RFA, USCIS ⁵ “certifie[d] that this rule w[ould] not have a significant adverse economic impact on a substantial number of small entities.” 57 Fed. Reg. 55056, 55060 (Nov. 24 1992) (codified at 8 C.F.R. pt. 214); Defs.' Mem. at 10–11.

To obtain a Q–1 visa, a U.S. employer must simultaneously petition USCIS for Q–1 status for the cultural exchange visitor named in the petition and for approval of the employer's international cultural exchange program. 8 C.F.R. § 214.2(q)(3)(i). The cultural exchange visitor's petition will be accepted if, as part of an approved cultural exchange program, he or she “engage[s] in employment or training of which the essential element is the sharing with the American public, or a segment of the public sharing a common cultural interest, of the culture of the alien's country of nationality.” Id. To gain approval of its cultural exchange program, the employer must demonstrate three elements: (1) “accessibility to the public” such that “the American public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program”; (2) a cultural component “which is an essential and integral part of the international cultural exchange visitor's employment or training”; and (3) a work component which “may not be independent of the cultural component of the international cultural exchange program.” Id. § 214.2(q)(3)(iii). Critical to this work component is the employer's “financial ability to remunerate the participant(s)” and its obligation to “offer the alien(s) wages and working conditions comparable to those accorded local domestic workers similarly employed.” Id. § 214.2(q)(4)(i)(D)-(E) (emphasis added); see also Second Am. Compl. ¶¶ 35, 40; Defs.' Mem. at 13. Once approved, the visa is valid “for the duration of the program, which may not exceed 15 months.” 8 C.F.R. § 214.2(q)(3)(ii).

III. USCIS Review of HP's Visa Petitions

This action arises from decisions by the Vermont Services Center (“VSC”) and USCIS Administrative Appeals Office (“AAO”), the USCIS appellate body, (together, the “USCIS”) denying, in whole or in part, three of HP's Q–1 visa petitions. Pl.'s Mot. at 1. In August 2009, IIP filed a Q–1 petition with the VSC for eighteen visas. CAR at 2–4. After issuing a Request for Evidence (“RFE”) and receiving plaintiff's response, id. at 59–62, 68–77, the VSC approved the petition and certified its decision to the AAO, id. at 39–44; see also Pl.'s Mot. at 5–8. The AAO affirmed the decision but advised the VSC to reconsider the duration of the visas because IIP did not establish “that the [interns] would be performing services consistent with the program during the summer months.” CAR at 34–37; PL's Mot. at 8–9. After issuing a second RFE, CAR at 31–32, the VSC approved the visas but limited their duration to conform to the schools' academic calendar, id. at 1461; Pl.'s Mot. at 9. Plaintiff is challenging this limitation.⁶

In January 2010, IIP filed a second petition for Q–1 visas. CAR at 1362–65; PL's Mot. at 9. After requesting additional information and reviewing plaintiff's RFE response, CAR at 1377–90; PL's Mot. at 9, the VSC denied the petition because, among other reasons, the interns would not “receive wages comparable to those of local domestic workers similarly employed,” CAR 1357–1361; PL's Mot. at 10. On review, the AAO affirmed the denial, noting that the regulations require the employer to pay the interns “actual wages.” CAR at 1207–08; PL's Mot. at 12. Plaintiff is now challenging AAO's subsequent denial of its motion to reconsider. CAR at 791, 805–06; PL's Mot. at 12–13.

Plaintiff admits that it considers the cultural exchange visitors to be unpaid volunteers, CAR at 814, and argues that the most comparable local domestic workers are unpaid interns or Americorps volunteers, Pl.'s Mot. at 11–12. However, the AAO, relying on the Department of Labor's Occupational Outlook Handbook, found the cultural exchange visitors' responsibilities to be comparable to teacher assistants, requiring equivalent wages. CAR at 798–99. The AAO noted that, under the program's current design, the “[interns] may have a greater financial obligation to [IIP] than [IIP] does to the [interns]” because the interns must pay various fees and travel expenses in order to even participate in the program.⁷Id. at 1206. Accordingly, the AAO concluded that the structure of the program “is contrary to the regulatory requirements that must be adhered to by qualified employers.” Id. at 1207.

In October 2010, IIP filed a third petition for Q–1 visas. Id. at 2258–60. Again, the VSC issued an RFE to which plaintiff responded. Id. at 2497–2500, 2502–11. The VSC rejected the petition because “the regulations require that [IIP] pay the [interns] actual wages commensurate with their duties,” id. at 2255–56, and plaintiff amended its complaint to challenge this denial.

Plaintiff now contends: (1) that the USCIS's denials of HP's Q-l visa petitions were “arbitrary, capricious, not in accordance with law, in excess of statutory limitations, short of statutory right, ... contrary to Constitutional Right and Privilege, [and] not supported by substantial evidence,” Second Am. Compl., Prayer for Relief ¶ 1 (Counts I–IV, together, the “APA claims”); (2) that USCIS effectively amended the Q–1 regulation through its instant decisions and, in violation of the APA, did not publish the amendment for notice and comment, Second Am. Compl. ¶¶ 194–97 (Count V); and (3) that USCIS violated the RFA by...