Q Data Consulting, Inc. v. I.N.S., CIV. 01-144(RJL).

• Decision Date: 09 July 2003
• Docket Number: No. CIV. 01-144(RJL).,CIV. 01-144(RJL).
• Parties: Q DATA CONSULTING, INC., Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

293 F.Supp.2d 25

Q DATA CONSULTING, INC., Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.

No. CIV. 01-144(RJL).

United States District Court, District of Columbia.

July 9, 2003.

Michael E. Piston, Troy, MI, for Q Data Consulting, Inc.

Laurie J. Weinstein, U.S. Attorney's Office, Washington, DC, for Immigration & Naturalization Service.

MEMORANDUM OPINION AND ORDER

LEON, District Judge.

Plaintiff Q Data Consulting, Inc. ("Q Data") asked this Court to review the decision by the Immigration and Naturalization Service ("INS") to deny plaintiff's I-140 visa petition to classify plaintiff's employee, Anne-Mare Prinsloo, as a "multinational manager." Currently before the Court are cross-motions for summary judgment. Upon consideration of the parties' motions, opposition thereto, the entire record and the relevant law, the defendant's motion will be granted and the plaintiff's motion will be denied.

I. Background

The facts as set forth in the administrative record are not disputed. Plaintiff Q Data, a wholly-owned subsidiary of Persetel Q Data Holdings, Ltd., is an investment holding company principally involved in information technology, systems integration, and networking. Administrative Record ("A.R.") 4, 48, 60. Ms. Prinsloo, a native of Namibia and a citizen of South Africa, worked for Q Data's South African affiliate from 1987 to 1995. Compl. ¶ 7; A.R. 196. In 1993, after serving as a Software Consultant, she was promoted to Senior Software Consultant, where her duties included managing the Technical Support Department and directly supervising seven software consultants. A.R. 178. She had authority to recommend hiring, firing, and other personnel actions for these employees. A.R. 178.

In January 1996, she was admitted into the United States as an L-1 nonimmigrant, see Def.'s Mot. for Summary Judgment at 2, and transferred from plaintiff's South African affiliate to its offices in the United States. She first worked on a Year 2000 conversion project designed to update the computer system of a Q Data client, and oversaw a team of eight people. A.R. 167-68. Q Data then offered to employ Ms. Prinsloo as a Team Manager for the State of Illinois, where she would manage the software consulting and development projects for the Illinois operations, including supervising fourteen software consultants with full authority over personnel decisions. A.R. 180.

On December 11, 1998, the plaintiff filed an I-140 visa petition with the INS's Nebraska Regional Service Center ("Nebraska Service Center") seeking an employment-based permanent immigration classification for Ms. Prinsloo. A.R. 1-2. The petition sought to have Ms. Prinsloo classified as a multinational manager under the Immigration and Nationality Act ("INA"), which allows a limited number of visas for priority employment-based workers, including "certain multinational executives and managers." Id.¹ 8 U.S.C. § 1153(b)(1)(C). On August 31, 1999, the Nebraska Service Center requested additional evidence to demonstrate that Ms Prinsloo had been, and will be, acting in a managerial capacity. A.R. 172-74. In response, the plaintiff submitted additional evidence, including more specific information about her job duties. A.R. 175-83. After receiving supplemental information, the Nebraska Service Center denied the petition on March 30, 2000, explaining that:

A review of the record as presently constituted is not sufficient to demonstrate that the beneficiary's duties have been and will be primarily managerial or executive in nature. The petitioner has not shown that beneficiary functions at a senior level within an organization hierarchy other than in position title. The record is not persuasive that the beneficiary is not merely performing the functions of the company. The petitioner has not sufficiently demonstrated that the beneficiary manages or directs the management of a department, subdivision, function, or component of the organization either abroad or in the United States.

A.R. 185-87.

The plaintiff then asked the defendant to reopen and reconsider its petition, submitting a letter from George Petrello, a professor of management, who reviewed Ms. Prinsloo's tasks as Team Manager and concluded that she was employed in a management position. A.R. 188-97. However, on December 18, 2000, the INS again denied the plaintiff's petition, explaining that the plaintiff had failed to establish that Ms. Prinsloo's "duties have been and will be primarily managerial or executive." A.R. 198-99. Specifically, the INS noted that "it must take into account the reasonable needs of the organization, component, or function in light of the overall purpose and state of development of the organization, component, or function" and explained that a person will not be deemed a manager "merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed." A.R. 199. The INS further noted that:

The record does not sufficiently demonstrate that the beneficiary will manage a subordinate staff of professional, managerial, or supervisory personnel who will relieve her from performing managerial nonqualifying duties. The Services is not compelled to deem the beneficiary to be a manager or executive simply because the beneficiary will possess a managerial or executive title.

Id.

The plaintiff then filed this action on January 24, 2001, claiming that the INS's decision was arbitrary and capricious within the meaning of the Administrative Procedures Act.² On July 27, 2001, the INS filed a motion for summary judgment; on August 28, 2001, the plaintiff did the same. On March 25, 2002, this case was transferred from Judge Robertson to this Court.

A hearing on the cross-motions for summary judgment was held on August 8, 2002. At the motions hearing, the plaintiff presented evidence that on June 25, 2002, the INS granted Q Data's petition to change Ms. Prinsloo's nonimmigrant status from H-1B to L-1A and that the criteria for classification as an L-1A nonimmigrant under INS regulations, 8 C.F.R. § 214.2(1), is the same as the criteria for classification as a multinational manager under the INA, 8 U.S.C. § 1153(b)(1)(C). Approving the L-1A petition while denying the I-140 petition, the plaintiff argued at the motions hearing, is inconsistent. The Court requested additional briefing on the subsequent INS decision, and took under advisement the cross-motions for summary judgment.

II. Discussion

The Court's review of the INS's decision to deny the I-140 petition is limited. Republic of Transkei v. INS, 923 F.2d 175, 176-77 (D.C.Cir.1991). The Court should only vacate the agency's decision if the decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This standard of review dictates that the Court should merely "examine the administrative record to ensure that the agency's decision `was based on a consideration of relevant factors' and that the decision was not `a clear error.'" Transkei, 923 F.2d at 177 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Moreover, summary judgment is appropriate if the pleadings and the record, when viewed in the light most favorable to the nonmoving party, demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The INS argues that it did not abuse its discretion in finding that Q-Data failed to establish that Ms. Prinsloo's former duties as Senior Software Consultant and her prospective duties as Team Manager are "primarily" managerial. I agree. This Court refuses to vacate the agency's decision to deny plaintiffs I-140 petition because a review of the administrative record reveals that the INS considered the relevant factors and that there is at least some "rational connection" between the record and the denial of plaintiff's petition. Dickson v. Sec'y of Def., 68 F.3d 1396, 1404-05 (D.C.Cir.1995) (explaining that an agency's decision need not "be a model of analytic precision to survive a challenge," but it "must minimally contain `a rational connection between the facts found and the choice made.'").

Based upon the record, the INS made a rational determination that Ms. Prinsloo's employment responsibilities were not "primarily" managerial. A.R. 187. While the INA provides for a limited number of employment-based classifications for multinational managers because they are considered "priority workers," those classifications are only allocated to employees with positions that are "primarily" managerial. 8 U.S.C. § 1101(a)(44)(A); 8 C.F.R. § 204.5(j)(2). In determining that Ms. Prinsloo would be employed in the United States in a position that is not primarily managerial, the INS grounded its decision in a review of both Ms. Prinsloo's past position as Senior Software Consultant and her prospective position as a Team Manager.

First, the INS reasonably concluded that Ms. Prinsloo's former position as Senior Software Consultant was not primarily managerial. As the record demonstrates, and as the plaintiff concedes, only 60% to 65% of her responsibilities were even deemed managerial. A.R. 197; see also Pl.'s Mot. for Summary Judgment at 12-13. Her nonmanagerial duties included system analysis, program unit design, and program debugging. A.R. 178-79. Moreover, she only directly supervised seven professional employees, A.R. 196, a sufficiently minimal number of employees that the INS was well within its discretion, given the circumstances, to determine that she is "merely performing the functions of the company" as opposed to managing. A.R. 187.

Second, it is also reasonable to...