North American Industries, Inc. v. Feldman

• Citation: 722 F.2d 893
• Decision Date: 05 December 1983
• Docket Number: No. 83-1135,83-1135
• Parties: NORTH AMERICAN INDUSTRIES, INC., et al., Plaintiffs, Appellants, v. Sam I. FELDMAN, District Director, Immigration and Naturalization Service, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 893

722 F.2d 893

NORTH AMERICAN INDUSTRIES, INC., et al., Plaintiffs, Appellants, v. Sam I. FELDMAN, District Director, Immigration and Naturalization Service, Defendant, Appellee.

No. 83-1135.

United States Court of Appeals, First Circuit.

Argued Aug. 3, 1983.

Decided Dec. 5, 1983.

Marshall D. Stein, Boston, Mass., on brief for plaintiffs, appellants.

Joan I. Milstein, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, ^* District Judge.

PEREZ-GIMENEZ, District Judge.

We review here a decision of the United States District Court for the District of Massachusetts, affirming the Immigration and Naturalization Service's (hereinafter "INS" or the "Agency") denial of appellant North American Industries, Inc.'s (hereinafter "North American") petition on behalf of Hernan Guerrero for a sixth-preference classification under Section 203(a)(6) of the Immigration and Nationality Act (hereinafter "the Act"), 8 U.S.C. Sec. 1153(a)(6). The question on appeal is whether INS abused its discretion in denying North American's petition to classify Guerrero as a sixth-preference immigrant under Section 1153(a)(6). Because we believe that the INS' interpretation of Section 1153(a)(6) runs counter to the purpose that Congress sought to serve by its enactment, and since the INS denied North American's petition based on that interpretation, we hold that the INS abused its discretion. Therefore, we reverse the decision of the District Court granting summary judgment in favor of the District Director of INS, appellee herein, and remand with instructions that the case be remanded to the District Director for the granting of North American's sixth-preference petition.

I.

Appellant North American Industries, Inc., is engaged in the manufacture of cranes and has its principal place of business in Everett, Massachusetts. Appellant Guerrero is a 42-year-old native and citizen of Chile who has been employed by North American since April 1972.

In the manufacture of cranes, North American utilizes computerized lathes and high-speed gear cutters. Guerrero has been programing and operating these machines for North American for several years. Besides Guerrero, North American has been unable to find other persons willing and capable of operating or of learning how to operate the computerized lathes and the gear cutters despite repeated attempts to find and train an American citizen or a permanent resident to fill Guerrero's position.

In view of its failure to find a replacement for Guerrero and the pressing need for someone to operate the lathes and gear cutters in order to keep its business going, North American petitioned the Immigration and Naturalization Service to classify Guerrero as a temporary worker ¹ and to grant him an H-2 nonimmigrant visa, pursuant to Section 101(a)(15)(H)(ii) of the Act, 8 U.S.C. Sec. 1101(a)(15)(H)(ii). ²

North American's petition was supported by the required temporary labor certification issued by the United States Department of Labor. North American wanted Guerrero to train new employees in the operation and programming of the lathes and gear cutters and hoped "that during [Guerrero's] tenure in the United States as an H-2, it would be able to find and train" an American employee or a permanent resident to replace Guerrero upon his departure from the United States. Affidavit of James Dossett, Appendix, at 9 & 30. The Immigration and Naturalization Service granted North American's petition and issued an H-2 temporary visa for Guerrero on February 8, 1977. ³ Guerrero's visa was to expire on November 14, 1977, at which time Guerrero was to leave the United States.

After obtaining the readmission to the United States of Hernan Guerrero as a temporary employee, North American continued to seek for a replacement for Guerrero by advertising in the local newspapers and contacting employment agencies. Again, North American's efforts were unsuccessful. Between October 1976 and November 1978, North American attempted to train several persons, but was unable to find anybody willing to complete the required training and capable of learning both how to operate and program the lathes and gear cutters. Only one man finished the training satisfactorily, but he left the company upon completion of his training to start his own business. North American maintains that unless it is able to find a replacement for Guerrero or to keep him as a permanent employee, it will be forced to shut down its operations.

Faced with the possibility of having to close its business if it lost Guerrero, and the fact that Guerrero's temporary visa was about to expire, North American sought to obtain permanent employment status for Guerrero. On November 10, 1977, four days short of the expiration of Guerrero's H-2 visa, North American applied for a permanent labor certification from the United States Department of Labor to the effect that the employment of Guerrero will not displace a United States worker nor adversely affect the wages or working conditions of other workers in the United States similarly employed. ⁴ The Department of Labor issued a permanent labor certification on October 17, 1978.

Once North American obtained the required labor certification, it proceeded to file a "Petition to Classify Preference Status of [Guerrero] on Basis of Profession or Occupation (INS Form I-140)" on November 2, 1978. ⁵ The approved permanent labor certification was submitted together with the petition. North American sought to have Guerrero classified as a sixth-preference immigrant pursuant to Section 203(a)(6) of the Act, 8 U.S.C. Sec. 1153(a)(6), ⁶ since its need for Guerrero had become permanent.

The District Director of INS (hereinafter "Director") denied North American's sixth-preference petition on December 27, 1978, because North American had failed to establish to his satisfaction that the position offered Guerrero was of a permanent nature. Based on a review of the permanent labor certification supporting the sixth-preference petition and the temporary labor certification submitted with the prior petition for a temporary H-2 visa, the Director concluded that the duties to be performed by Guerrero were identical and that therefore the position now being offered was the same as the one which previously had been certified as temporary. Thus, the Director denied the sixth-preference petition since a position which previously had been certified as temporary could not now be certified as permanent. ⁷

The decision of the District Director was certified for review to the Regional Commissioner of INS (hereinafter "Commissioner"). On review before the Commissioner, North American argued that although Guerrero's position had previously been certified as temporary, its inability to find a suitable replacement for Guerrero, coupled with the likelihood of having to shut down its business if Guerrero were forced to leave the United States, had changed the position from one of a temporary nature to one of a permanent nature. The Commissioner compared the two positions as these were described in the respective job offers (DOL Form MA 7-50B), and concluded, like the District Director, that Guerrero would be engaged in the same job for which he had been accorded H-2 status. Thus, on October 12, 1979, the Commissioner affirmed the decision of the District Director.

Subsequently, North American and Guerrero filed their complaint in the United States District Court for the District of Massachusetts seeking reversal of INS' denial of the sixth-preference petition. North American and Guerrero challenged INS' interpretation of Section 203(a)(6) of the Act, 8 U.S.C. Sec. 1153(a)(6), ⁸ as that interpretation is embodied in INS' Operations Instruction 204.4(b)(2). ⁹ Said Operations Instruction requires that a sixth-preference petition be denied if the position being offered is the same as that for which the beneficiary had been granted an H-2 visa. The reason for denying the petition is that the position previously had been certified as temporary and, as such, does not qualify the beneficiary for a sixth-preference classification since 8 U.S.C. Sec. 1153(a)(6) requires that the position offered be of a permanent nature. Again, North American and Guerrero argued that although the nature of the two positions may be the same with respect to the duties required of Guerrero, the positions were in fact different from the point of view of the employer's needs because that which Guerrero filled as an H-2 nonimmigrant was a temporary position, but had become permanent due to North American's inability to find a replacement for Guerrero.

However, the District Court rejected appellants' arguments because of the "great weight" which should be given to the interpretation of a statute by the agency charged with administering it and the "controlling weight" which should be given to an agency's interpretation of its own regulations. The Court held that the Operations Instruction was consistent with and advanced the purposes of the statute and that "its application by [INS] in this case was reasonable and in no sense arbitrary or capricious." North American Industries, Inc. v. Feldman, No. 79-2147 (D.Mass. January 17, 1983) (Memorandum and Order Granting Defendant's Motion for Summary Judgment). The District Court approved of INS' use of the test embodied in O.I. 204.4(b)(2)--the "same-position" test--in denying appellant's petition, stating:

We disagree with [North American's and Guerrero's] argument that [INS'] rejection of the sixth preference visa application was automatic. [INS] ... relied upon a careful comparison of the two jobs. To require the INS to accept [North American's] characterization of the position as permanent or temporary would ... defeat the purpose of the statutory scheme. It would establish a...