Omni Packaging, Inc. v. USINS

• Decision Date: 27 March 1990
• Docket Number: Civ. No. 88-1960 (JP).
• Citation: Omni Packaging, Inc. v. USINS, 733 F. Supp. 500 (D. P.R. 1990)
• Parties: OMNI PACKAGING, INC., et al., Plaintiff, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICES, Defendant.
• Court: U.S. District Court — District of Puerto Rico

733 F. Supp. 500

OMNI PACKAGING, INC., et al., Plaintiff, v.UNITED STATES IMMIGRATION AND NATURALIZATION SERVICES, Defendant.

Civ. No. 88-1960 (JP).

United States District Court, D. Puerto Rico.

March 27, 1990.

Patrick D. O'Neill, Martinez, Odell, Calabria & Sierra, Hato Rey, P.R., for plaintiff.

Miguel A. Fernández, Asst. U.S. Atty., Hato Rey, P.R., for defendant.

OPINION AND ORDER

PIERAS, District Judge.

The Court has before it the partiesmotions for summary judgment.Omni Packaging Inc. and Daniel Avila de la Rosa have filed this action pursuant to 5 U.S.C. § 702.Jurisdiction is based on 8 U.S.C. § 1329,28 U.S.C. § 1331and28 U.S.C. §§ 2201,2202.Plaintiffs request equitable relief and costs and attorneys' fees.

Having fully considered the motions, all materials filed in support of or opposition to them, and the Record of Proceedings ("ROP") before the Immigration and Naturalization Service ("INS"), the Court finds that the decision of the INS was an abuse of discretion.For the reasons stated below, we remand the case to the INS for further proceedings consistent with this Court's ruling.

I.BACKGROUND

The Court finds it unnecessary to review all the facts in this case as they are not in dispute.In brief, plaintiffOmni Packaging, Inc.(Omni), filed a third preference immigration petition to classify plaintiffDaniel Avila De La Rosa as a member of the professions, pursuant to § 203(a)(3) of the Immigration and Nationality Act("INA").Avila came to the United States to work as a technical support director/sales engineer for Omni.The Eastern Regional Service Center of the INS denied Omni's petition.On April 30, 1987 the Administrative Appeals Unit ("AAU") of the INS denied the petition on appeal.In response to Omni's motion to reopen and reconsider, the AAU again denied the petition on August 24, 1988, for the following reasons: 1) as technical support director/sales engineer, plaintiff Avila was not performing duties considered to be managerial or executive in nature; 2) Mr. Avila's job, as described, was not a "profession" under the INA, and Omni did not prove that his duties could not be performed by an individual who does not possess a baccalaureate degree; and 3) Omni had failed to show Avila's foreign education and experience was the equivalent of an American university degree.

Prior to the denial of this petition, the INS had granted L-1 visa classification to Mr. Avila which was valid from March 27, 1985 through March 31, 1987.In March of 1987, upon petition by Omni, the INS extended the validity of Mr. Avila's L-1 visa classification for the term of one year from March 5, 1987 up to and including March 31, 1988.Again, in March of 1988, the INS upon petition by Omni, extended the terms of Mr. Avila's L-1 visa for the term of two years from April 1, 1988 up to and including March 27, 1990.SeeROP FileNos. SAJ-N-17340, EAC 87 119 0415, Notice of L-1 approval and accompanying documents.

On December 5, 1988, plaintiffs filed this action, seeking a declaration that the INS's denial of the petition is clearly erroneous, unlawful, and an abuse of discretion, and requesting the granting of third preference classification to Mr. Avila pursuant to 8 U.S.C. § 1153(a)(3).

II.SCOPE OF REVIEW

The Court's scope of review in this case is limited.Under the Immigration and Nationality Act,8 U.S.C. § 1153, the INS has broad discretion to grant or deny visa preference classifications.A federal court can reverse the INS denial of a preference classification if the INS abused its discretion.North American Industries, Inc. v. Feldman,722 F.2d 893, 898(1st Cir.1983).The court may find an abuse of discretion if the INS based its decision on an improper understanding of the law or decided the case in a manner inconsistent with its own precedents, Occidental Engineering Co. v. I.N.S.,753 F.2d 766, 768(9th Cir.1985), or if the agency "fails to articulate a rational connection between the facts found and the choice made."Bowman Transportation, Inc. v. Arkansas-Best Freight System,419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447, 456(1974), reh'g denied,420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433(1975).The agency itself must articulate a rational basis for its decision, and post hoc explanations by counsel are insufficient.SeeMotor Vehicle Manufacturers' Association v. State Farm Mutual Automobile Insurance Co.,463 U.S. 29, 50, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443, 462(1983).

Also, a court may set aside a decision of an agency, such as the INS, if it finds that the decision is unsupported by reasonable, substantial evidence on the record considered as a whole.Bowman Transportation,419 U.S. at 284, 95 S.Ct. at 441, 42 L.Ed.2d at 455(citation omitted).Even if the agency finding is supported by substantial evidence, a court may still consider the action to be "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."Id.(quoting the Administrative Procedure Act,5 U.S.C. § 706(2)(A)).

Great deference is accorded to an agency's interpretation of a statute when the agency is charged with the administration of the statute.Udall v. Tallman,380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, reh'g denied,380 U.S. 989, 85 S.Ct. 1325, 14 L.Ed.2d 283(1965).However, agency discretion cannot be exercised if it conflicts with the purpose of the relevant statute.Yiu Tsang Cheung v. District Director, I.N.S.,641 F.2d 666, 669(9th Cir.1980).

III.THIRD PREFERENCE ELIGIBILITY

Under 8 U.S.C. § 1153(a)(3), an alien who desires to enter the United States for a job-related reason may be granted a third preference visa if that person is an immigrant who is a member of the professions or who, because of his exceptional ability in the sciences or the arts, will substantially benefit the national economy, cultural interests, or welfare of the United States.A United States employer must be seeking the alien's services.An immigrant's eligibility for a third preference visa involves two main issues: (1) whether the occupation of the alien is a "profession" and, if it is, (2) whether the alien possesses the educational and other criteria to be considered a member of that profession.3 Immigration Law Service§ 37:3(1985).

Although the INA contains a list of professions, see8 U.S.C. § 1101(a)(32),¹ the list is not exhaustive, and other occupations may qualify as "profession" for purposes of satisfying third preference eligibility.Id. at § 37:5;Matter of Sun,12 I & N Dec. 535(D.D.1966);Matter of Desau,17 I & N Dec. 569(1980).The prerequisite for an applicant's occupation to be considered a "profession" is usually the acquisition of a baccalaureate degree for academic study in a specific discipline or narrow range of disciplines.See, e.g., Matter of Portugues Do Atlantico Information Bureau, Inc., Interim Decision 2982 (Comm.1984);Matter of Palanky12 I & N Dec. 66(R.C.1966).However, not every person who has a degree from an accredited college or university is qualified as a professional.Pizarro v. District Director, I.N.S.,415 F.2d 481(9th Cir.1969), superseded on other grounds by statute as stated inGriggs v. Provident Consumer Discount Co.,459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225(1982).The knowledge acquired through the degree must be of a "nature that is a realistic prerequisite to entry into the particular field of endeavor."Song Jook Suh v. Rosenberg,437 F.2d 1098(9th Cir.1971);Matter of Shin,11 I & N Dec. 686, 688(1966).

In some instances, an applicant may be granted third preference status as a member of a profession even though he has no college degree.In these cases, the applicant has been qualified as a professional because he has acquired specialized knowledge, training, or experience which was equivalent to a professional degree.Asuncion v. District Director, I.N.S.,427 F.2d 523, motion denied,429 F.2d 1324(9th Cir.1970).However, the INS does not generally view experience as a substitute for education and has done so only in exceptional circumstances where individuals, because of their extraordinary personal skills, occupy professional positions after completing almost all of their course work for a degree, or gain professional standing through direct experience and specialized non-institutional instruction.3 Immigration Law Services at § 37:6(citations omitted).See alsoHong Kong T.V. Video Program, Inc. v. Ilchert,685 F.Supp. 712(N.D.Cal.1988).

In petition proceedings, the plaintiff company seeking the preference for its employee and the beneficiary/employee bear the burden of establishing the beneficiary's eligibility for the preference benefit.8 U.S.C. § 1154(Supp.1989);Matter of Brantigan,11 I. & N. Dec. 493, 495(B.I.A.1966).

In order to be classified under a third preference visa, a petitioner must first obtain a labor certification.8 U.S.C. § 1153(a)(7)(1989);8 U.S.C. § 1182(a)(14).The labor certification requirement is an exclusionary provision so that an alien is excludable from the United States and can be deported unless the alien complies with the labor certification requirement.Under 8 U.S.C. § 1182(a)(14), an alien seeking to perform skilled or unskilled work in the U.S. is excludable unless the Secretary of Labor determines and certifies that 1) there are not sufficient workers who are able, willing, qualified and available at the time of application for the visa at the alien's place of employment and 2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed workers in the U.S.

The Secretary of Labor classifies certifiable occupations into Schedule A and Schedule B categories.See20 C.F.R. §§ 656.10,656.11.The United States Employment Service has determined that in these Schedule A occupations, there are not sufficient U.S. workers who are able, willing, qualified, and available and that the wages and working...