Saga Overseas, LLC v. Johnson

• Decision Date: 10 August 2016
• Docket Number: Case No. 15-21813-Civ-COOKE
• Parties: SAGA OVERSEAS, LLC, Plaintiff, v. Jeh JOHNSON, Secretary, Department of Homeland Security; Leon Rodriguez, Director, Citizenship and Immigration Services; Gregory Richardson, Director, Texas Service Center, Defendants.
• Court: U.S. District Court — Southern District of Florida

200 F.Supp.3d 1341

SAGA OVERSEAS, LLC, Plaintiff,

v.Jeh JOHNSON, Secretary, Department of Homeland Security; Leon Rodriguez, Director, Citizenship and Immigration Services; Gregory Richardson, Director, Texas Service Center, Defendants.

Case No. 15-21813-Civ-COOKE

United States District Court, S.D. Florida.

Signed August 10, 2016

Patricia Anne Horal, P.H. Legal Services, Tampa, FL, for Plaintiff.

Marlene Rodriguez, United States Attorney's Office, Miami, FL, for Defendants.

OMNIBUS ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

MARCIA G. COOKE, United States District Judge

This action arises out of the United States Citizenship and Immigration Services' ("USCIS") denial of a Form I-140, Immigrant Petition for Alien Worker Visa ("Form I-140 Petition"), and the Administrative Appeals Office's ("AAO") subsequent denial of an appeal. It is currently before me on the parties' cross-motions for summary judgment.

I. BACKGROUND

Plaintiff, Saga Overseas, LLC ("Saga"), is the U.S. subsidiary of a Venezuelan company, Ferrelago, C.A. ("Ferrelago"), which has two primary office locations in Venezuela. Pl.'s Mot. Summ. J. ¶ 2, ECF No. 19. Ferrelago operates as an importer and exporter of agricultural and construction machinery and provides related consulting services. Def.'s Mot. Summ. J. 1, ECF No. 18. On July 22, 2013, Saga filed a Form I-140 Petition with USCIS for Diana Maria Auvert Vetencourt ("Vetencourt"), a foreign national, to work in the United States as Saga's general manager. Pl.'s Mot. Summ. J. ¶ 10; Def.'s Mot. Summ. J. 1. Saga sought to qualify Vetencourt as a "multinational business executive or manager" pursuant to 8 U.S.C. § 1153(b)(1)(C), or Section 203(b)(1)(C) of the Immigration and Nationality Act ("the Act"). Id. at 2.

Vetencourt has a Master's Degree in Business Administration from the Institute of Higher Education Administration in Venezuela and has over twenty years of advanced work experience in the field of Business Administration. Pl.'s Mot. Summ. J. ¶ 5. Ferrelago hired Vetencourt as a Marketing Analyst in 1990, promoted her to Marketing Manager in 1999, and again promoted her to the position of General Manager of Ferrelago in 2007. Id. ¶ 6.

On October 25, 2010, Saga submitted a Form I-129, Petition for a Nonimmigrant Worker Visa, seeking to classify Vetencourt as a multinational executive/manager in accordance with 8 U.S.C. § 1101(a)(15)(L) (the "L-1A visa"). Id. ¶ 8. USCIS approved Vetencourt's L-1A visa, and in November 2010, Saga transferred Vetencourt to the United States to work as its General Manager. Id. ¶ 7. USCIS approved Vetencourt's original L-1A visa for the period of November 15, 2010 through November 14, 2011. Id. Saga then submitted another L-1A visa petition seeking to extend Vetencourt's classification, which USCIS granted for the period of November 15, 2011 through November 14, 2013. Id. ¶ 9.

Subsequently, Saga filed the instant Form I-140 Petition, and included a general job description of Vetencourt's position along with its application materials. Def.'s Mot. Summ. J. 2. The job description stated that Vetencourt would direct Saga by overseeing its growth and structural development, setting strategies, and planning the company's activities and human resources. Id. Further, Saga stated that Vetencourt would represent the company in all contract negotiations at the national and international levels, control financial investments and technical operations, and have discretionary authority over all personnel actions, including hiring and firing of employees, evaluating employee performances, and establishing procedures for all training purposes. Id.

Due to an insufficiency of evidence establishing that Vetencourt would be employed in the United States in a managerial or executive capacity, USCIS issued a Request for Evidence ("RFE") on September 30, 2013. Id. USCIS determined that Saga's description of Vetencourt's job was too vague, making it difficult to determine precisely what job duties she would perform on a daily basis. Id. Further, USCIS deemed Saga's claimed staff of six employees to be limited. Id. Saga responded to USCIS' RFE with evidence that included a percentage breakdown of Vetencourt's job duties, consisting of a list of 29 items of her daily, weekly, monthly, quarterly, and yearly job duties. Id. at 3. Saga also provided an organizational chart depicting a three-tiered organizational system with Vetencourt at the top, followed by an administrative assistant, an attorney, an accounting firm, a business development specialist, and one vacant position titled "business consultant" below her. Id. The bottom tier of the organizational chart also included a sales associate, identified as employed in Venezuela, a freight forwarder, and one vacant position titled "logistics import & export specialist." Id.

After reviewing Saga's submissions, USCIS determined that Saga failed to establish that Vetencourt would be employed in the United States in a qualifying managerial or executive capacity. Id. Therefore, USCIS denied Saga's Form I-140 Petition on behalf of Vetencourt on February 21, 2014. Id. at 3. More specifically, USCIS found that Saga's descriptions of Vetencourt's job duties "fail to convey an understanding of exactly what the beneficiary will be doing on a day-to-day basis." R. at P573. The decision further stated that many of Vetencourt's job duties "are not higher level duties that necessitate a multinational executive or manager." Id. USCIS also noted that the two employees who work directly for Saga, under Vetencourt's purported supervision, are both employed on a part-time basis. This led USCIS to question whether those employees could relieve Vetencourt from having to perform nonqualifying tasks as the primary portion of her daily responsibilities. Def.'s Mot. Summ. J. 3.

Saga filed a timely appeal (Form I-1290B, Notice of Appeal) seeking to overturn USCIS's decision, and provided the expert opinion testimony of Professor Elliot Burak in support of its arguments that Vetencourt's position is "managerial or executive." Id. at 4. However, on January 5, 2015, the AAO denied Saga's appeal, finding that Saga had "failed to establish that Vetencourt would be employed in a primarily managerial or an executive capacity." R. at P551.

II. LEGAL STANDARD

Under Rule 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.1994) ). "The principles governing summary judgment do not change when the parties file cross-motions for summary judgment." T–Mobile S. LLC v. City of Jacksonville, Fla., 564 F.Supp.2d 1337, 1340 (M.D.Fla.2008). As this action is before the Court on such cross-motions, "the court must determine whether either of the parties deserves judgment as a matter of law on the undisputed facts." Id.

When USCIS grants or denies a visa preference classification, this decision is subject to judicial review under the Administrative Procedures Act ("APA"), see 5 U.S.C. § 702, "but the standard [of review] is a highly deferential one which presumes that the agency's action is valid." Khamisani v. Holder , No. H–10–0728, 2011 WL 1232906, at *3 (S.D.Tex.2011). Indeed, " ‘even in the context of summary judgment, an agency action is entitled to great deference.’ " Sunshine Co. Food Distrib., Inc. v. U.S. Citizenship & Immigration Servs., 362 Fed.Appx. 1, 2 (11th Cir.2010) (quoting Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir.1996) ).

"Under the APA, a court shall set aside an action of an administrative agency only where it is arbitrary, capricious, or an abuse of discretion." Preserve Endangered Areas, 87 F.3d at 1246 (citing 5 U.S.C. § 706(2)(A) ). In making this determination, a court "must consider whether an agency's decision ‘was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ " Sunshine Co. Food Distrib., Inc., 362 Fed.Appx. at 2–3 (quoting Sierra Club v. Johnson, 436 F.3d 1269, 1274–74 (11th Cir.2006) ). Further, the scope of review of the agency's action is generally limited to the administrative record. See Preserve Endangered Areas, 87 F.3d at 1246 ("[W]hile certain circumstances may justify going beyond the administrative record, a court conducting a judicial review is not ‘generally empowered’ to do so.").

Thus, "[t]he role of the court is not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Preserve Endangered Areas, 87 F.3d at 1246 ; see also Smith v. Holder, 487 Fed.Appx. 731, 733 (3d Cir.2012) ("[T]he court should not re-weigh the evidence presented but must determine only if ‘a reasonable mind might accept [the evidence] as adequate to support a conclusion.’ "). Instead, the court is limited to deciding whether " ‘on the basis of the record the agency provides, ... the action passes muster under the appropriate APA standard of review.’ " Preserve Endangered Areas, 87 F.3d at 1246 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) ). "Thus, this narrow scope of review forbids a reviewing court from substituting its judgment for that of the agency, and mandates affirmance if a rational basis exists for the agency decision, even if the court might otherwise disagree." Khamisani, 2011 WL 1232906, at *3.

III. DISCUSSION

Each year, USCIS grants a limited number of preference visas to "certain multinational executives and managers" who serve "in a capacity that is managerial or...