INTERN. UNION OF BRICKLAYERS v. Meese

• Decision Date: 28 August 1985
• Docket Number: No. C-85-1253-CAL.,C-85-1253-CAL.
• Citation: 616 F. Supp. 1387
• Parties: INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN; and Local No. 7, California, International Union of Bricklayers and Allied Craftsmen, Plaintiffs, v. Edwin MEESE III, Attorney General of the United States; George P. Schultz, Secretary of State of the United States; and Immigration and Naturalization Service, Defendants, Homestake Mining Company of California, a California Corporation, Defendant-Intervenor.
• Court: U.S. District Court — Northern District of California

616 F. Supp. 1387

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN; and Local No. 7, California, International Union of Bricklayers and Allied Craftsmen, Plaintiffs, v. Edwin MEESE III, Attorney General of the United States; George P. Schultz, Secretary of State of the United States; and Immigration and Naturalization Service, Defendants Homestake Mining Company of California, a California Corporation, Defendant-Intervenor.

No. C-85-1253-CAL.

United States District Court, N.D. California.

August 28, 1985.

COPYRIGHT MATERIAL OMITTED

Stephen P. Berzon, Marshal S. Berzon and Michael Rubin, Altshuler & Berzon, San Francisco, Cal., and Sarah Fox, Washington, D.C., for plaintiffs.

Jeffrey L. Bornstein, Asst. U.S. Atty., San Francisco, Cal., for defendants.

Dana Marks Keener, Simmons & Ungar, San Francisco, Cal., for defendant-intervenor Homestake Mining Co.

OPINION AND ORDER GRANTING SUMMARY JUDGMENT

LEGGE, District Judge.

Plaintiff International Union of Bricklayers and Allied Craftsmen ("International Union") represents approximately 100,000 masonry craftsmen working in the construction industry in the United States. Plaintiff Local No. 7, California, International Union of Bricklayers and Allied Craftsmen ("Local 7") is affiliated with plaintiff International Union in Northern California, and represents masonry craftsmen working in Lake County, California.

Defendants Edwin Meese III ("Attorney General"), George P. Schultz ("Secretary of State"), and the Immigration and Naturalization Service ("INS") are charged with the administration and enforcement of the immigration laws in the United States.¹ Defendant-intervenor Homestake Mining Company of California ("Homestake") is a California corporation, and the owner of the McLaughlin Gold Project in Lake County, California.

Plaintiffs commenced this case on behalf of themselves and their members to challenge the federal defendants' practice of issuing visas to foreign laborers under the authority of INS Operations Instruction 214.2(b)(5), an INS internal agency guideline. Pursuant to that practice, visas are issued to foreign laborers coming to the United States temporarily to work. In this case, visas were issued to foreign laborers who came temporarily to work on the project owned by Homestake. Plaintiffs contend that the practice violates the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ 1101-1524 (1982 & Supp. I 1983), and seek declaratory and injunctive relief to remedy the alleged violations.

The case is now before the court on the parties' cross motions for summary judgment. The court has examined the extensive briefs of the parties, the affidavits and declarations, the record, and the legal authorities. For the reasons set forth below, the court concludes that summary judgment should be entered in favor of plaintiffs.

I. Statutory and Regulatory Overview

The Act generally charges the Attorney General and the Secretary of State with the administration and enforcement of the immigration laws of the United States. See 8 U.S.C. §§ 1103(a), 1104(a). Primary responsibility, however, rests with the Attorney General,² and his "determination and ruling ... with respect to all questions of immigration law is controlling." 8 U.S.C. § 1103(a). See generally 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure §§ 1.6-1.17 (1985) (examining the Act's administration and enforcement provisions).

Under the Act, an alien seeking to enter the United States is categorized either as an "immigrant" or "nonimmigrant." In most instances, an immigrant seeks permanent residence, and a nonimmigrant seeks only a temporary stay. The Act, however, defines an immigrant as "every alien except an alien who is within one of the ... classes of nonimmigrant aliens." 8 U.S.C. § 1101(a)(15) (emphasis added). Further, the Act provides that every alien is presumed to be an immigrant unless he establishes to the satisfaction of consular and immigration officers that he is entitled to nonimmigrant status. 8 U.S.C. § 1184(b). The distinction between immigrant and nonimmigrant aliens is significant. The Act contains numerical limitations and strict documentary requirements for certain classes of immigrant aliens. In contrast, there are no numerical limitations placed upon the classes of nonimmigrant aliens. See generally 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure §§ 2.1, 2.5 (1985) (examining the Act's treatment of immigrant and nonimmigrant aliens).

The dispute in the present case centers on the Act's provisions regarding nonimmigrant aliens. Section 101(a)(15) of the Act, 8 U.S.C. § 1101(a)(15), sets forth thirteen classes of aliens entitled to nonimmigrant status. The parties have stipulated, however, that only two of those classes are germane to this case.

A. Temporary Visitors for Business

The first class of nonimmigrant aliens relevant here is the "temporary visitor for business" class. Section 101(a)(15)(B) of the Act defines a "temporary visitor for business" as:

an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business....

8 U.S.C. § 1101(a)(15)(B). An alien qualifying for this nonimmigrant status is entitled to receive a "B-1" visa. See 8 U.S.C. § 1201(a)(2).

Pursuant to his authority under the Act, see 8 U.S.C. § 1104(a), the Secretary of State has promulgated a regulation defining the term "business" for purposes of the B-1 "temporary visitor for business" class:

The term "business", as used in section 101(a)(15)(B) of the Act, refers to legitimate activities of a commercial or professional character. It does not include purely local employment or labor for hire. An alien seeking to enter as a nonimmigrant for employment or labor pursuant to a contract or other prearrangement shall be required to qualify under the provisions of 22 C.F.R. § 41.55.³

22 C.F.R. § 41.25(b) (1985). See also 22 C.F.R. § 41.25(a) (1985) (specifying factors considered by consular officer in determining whether an alien is classifiable as a "temporary visitor for business").

Among the criteria utilized to determine an alien's eligibility for B-1 "temporary visitor for business" status is INS Operations Instruction 214.2(b)(5), an INS internal agency guideline that is the subject of this dispute. The Operations Instruction provides:

Each of the following may also be classified as a B-1 nonimmigrant if he/she is to receive no salary or other remuneration from a United States source (other than an expense allowance or other reimbursement for expenses incidental to the temporary stay):

* * * * * *

(5) An alien coming to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the U.S. or to train U.S. workers to perform such service, provided: the contract of sale specifically requires the seller to perform such services or training, the alien possesses specialized knowledge essential to the seller's contractual obligation to provide services or training, the alien will receive no remuneration from a U.S. source, and the trip is to take place within the first year following the purchase.

INS Operations Instruction 214.2(b)(5), reprinted in 4 C. Gordon & H. Rosenfield, Immigration Law and Procedure 23-358 to 23-359 (1985).

Pursuant to the Operations Instruction, B-1 visas have been issued to the foreign laborers who came to the United States to work on the project owned by Homestake, and to foreign laborers to do other work throughout the United States.⁴ The central issue in this case is whether the Operations Instruction violates the Act and the regulations promulgated under the Act.

B. Temporary Workers

The second class of nonimmigrant aliens involved here is the "temporary worker" class. Section 101(a)(15)(H)(ii) of the Act defines a "temporary worker" as:

an alien having a residence in a foreign country which he has no intention of abandoning ... and who is coming temporarily to the United States to perform temporary services of labor, if unemployed persons capable of performing such service or labor cannot be found in this country....

8 U.S.C. § 1101(a)(15)(H)(ii). An alien qualifying for this nonimmigrant status is entitled to receive an "H-2" visa. See 8 U.S.C. § 1201(a)(2).

The Attorney General is authorized to make the determination concerning the admissibility of an H-2 "temporary worker" applicant after consulting with other government agencies. In this regard, the Act provides that "the question of importing any alien as a nonimmigrant under section 101(a)(15)(H) ... shall be determined by the Attorney General, after consultation with appropriate agencies of the Government, upon petition of the importing employer." 8 U.S.C. § 1184(c).

Pursuant to his authority under the Act, the Attorney General has promulgated a regulation which requires the petitioning employer for an H-2 "temporary worker" applicant to seek labor certification from the Secretary of Labor prior to approval of the applicant's petition. That regulation provides in pertinent part:

Every petitioner must attach to every nonimmigrant visa petition to classify an alien under section 101(a)(15)(H)(ii) of the Act ... either:

(A) A certification from the Secretary of Labor ... stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect wages and working conditions of workers in the United States similarly employed; or

(B) A notice that such certification cannot be made. If there is attached to the petition a notice from the Secretary of Labor ... that certification cannot be made, the petitioner shall be permitted to present countervailing

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