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Sunshine Stores and Ali selected H1-B cases

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Came as tourists in 2003 and still here in 2012 filing successive UNSUCCESSFUL appeals, motions, and lawsuits.

Came as tourists in 2003 and still here in 2012 filing successive UNSUCCESSFUL appeals, motions, and lawsuits.

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  • 1. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 1 of 11 PageID 818 An Appeal was filed in the 5th Circuit in this case on June 22, 2012. However, it seems rather ridiculous that these folks have not yet been Removed as they should have been years ago. As you read through you will understand that remark MUCH better. http://dockets.justia.com/docket/circuit-courts/ca5/12-10672/ UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION Couple arrived on "single entry" B-2 visas1.) District Court Dismissal; in 2003. Mere days before expiration of2.) Government Brief urging this dismissal; I-94s he filed an I-539 to extend their B-2s.3.) Complaint starting this lawsuit; While the I-539 was pending, employer4.) AAO Dismissal (one of many). filed I-129 (H1-B) for her and he filed an I-539 as her dependent. Everything got SUNSHINE STORES, INC., ET AL., ) denied. Appeals and Motions filed for ) years and then the lawsuit. No mention of Plaintiffs, ) any NTAs or Removal Proceedings. ) CIVIL ACTION NO. VS. ) ) 3:09-CV-1352-G ERIC HOLDER, U.S. Attorney General, ) ET AL., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER Before the court is the defendants’ motion for summary judgment (docket entry 47). For the reasons set forth below, the motion is granted. I. BACKGROUND This is an immigration case. The plaintiffs are Sunshine Stores Inc. (“Sunshine Stores”), a Texas-based retailer, and husband and wife Ramzan Ali (“Mr. Ali”) and Munira Ramzan Ali (“Mrs. Ali”). Plaintiffs’ First Amended Petition to the Original Complaint for Writ of Mandamus and Declaratory Relief (“Complaint”) ¶¶ 3, 5-6 (docket entry 14). The defendants are Eric Holder, Janet Napolitano, Michael Aytes,
  • 2. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 2 of 11 PageID 819David Roark, and Mark Hazuda (collectively, United States Citizenship andImmigration Services or “USCIS”). Id. ¶¶ 1, 7-11. On October 12, 2003, the Alis were admitted to the United States with B-2visitor status on a single entry visa. Brief in Support of Defendants’s Motion forSummary Judgment (“Brief”) at 6 (docket entry 48). Under this visa, they wereauthorized to remain in this country until April 11, 2004. Id. On April 2, 2004, nine days before the scheduled expiration of their initialvisa, the USCIS received the Alis’ first Form I-539 application to extend theirnonimmigrant status (“I-539 #1”). Id. at 7. In this application, the Alis explainedthat their stay in the United States would be “temporary,” and that they “do notintend to stay here longer than [their] authorized time.” Id. They wished to extendtheir B-2 visitor status through October 10, 2004. Id. While the I-539 #1 application was pending, the USCIS received SunshineStores’ Form I-129 petition for a nonimmigrant worker. Id. In this petition,Sunshine Stores requested that Mrs. Ali’s status be changed from a B-2 visitor to anH-1B nonimmigrant worker, so that Mrs. Ali could work at Sunshine Stores as anaccountant. Id. Concurrently, Mr. Ali filed a second Form I-539 application (“I-539#2”), in which he requested that his B-2 visitor status be changed to H-4 dependentstatus. Id. at 7-8. Thus, Mr. Ali’s I-539 #2 application was contingent upon Ms. Entered on October 12, 2003; I-94s expiring on April 11, 2004; I-539 (B-2s) filed on April 2, 2004; I-129/539 filed on June 11, 2004; - 2 - RFE for I-129 sent June 15, 2004; I-539 (B-2s) denied on Aug. 30, 2004; I-129/539 denied on Sept. 1. 2004; 8 years of Denied Appeals, Motions, & lawsuits June 12, 2012, filed an Appeal to 5th Circuit!
  • 3. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 3 of 11 PageID 820Ali’s I-129 application. Id. at 9. Both Alis wished to have their stays in the UnitedStates extended until October 1, 2007. Id. at 7. On June 15, 2004, USCIS requested that Sunshine submit additional evidencein support of Mrs. Ali’s I-129 on the question of whether her potential position was a“specialty occupation.” Id. at 8. On August 19, 2004, USCIS received Sunshine’sresponse. Id. On August 30, 2004, USCIS denied the Alis’ I-539 #1 request for extension oftheir B-2 visitor status. Id. A principal reason for the denial was that Sunshine Storeshad filed an I-129 petition on behalf of Mrs. Ali. Id. at 9. The USCIS explained thatthis demonstrated that the Alis did not intend to leave the United States. Id. at 9. On September 1, 2004, USCIS denied Sunshine’s I-129 petition for failure toestablish that the position met the regulatory definition of a “specialty occupation.”Id. Concurrently, USCIS denied Mr. Ali’s contingent I-539 #2 request to change hisstatus from a B-2 visitor to an H-4 dependent. Id. After the USCIS denied the I-539 #1, I-539 #2, and I-129 requests, theplaintiffs filed a series of motions to reopen and reconsider their applications, as wellas an appeal to the Administrative Appeals Unit. Id. at 10-13. All of the plaintiffs’motions and appeals were denied. Id. On July 17, 2009, the plaintiffs filed this suit challenging the USCIS’ decisionon their I-539 and I-129 requests. On September 23, 2011, the defendants filed this -3-
  • 4. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 4 of 11 PageID 821motion for summary judgment. Summary judgment is proper when the pleadings,depositions, admissions, disclosure materials on file, and affidavits, if any, “show[]that there is no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter of law.” FEDERAL RULE OF CIVIL PROCEDURE 56(a), (c)(1). Afact is material if the governing substantive law identifies it as having the potential toaffect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986). An issue as to a material fact is genuine “if the evidence is such that areasonable jury could return a verdict for the nonmoving party.” Id.; see also Bazan exrel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (“An issue is ‘genuine’if it is real and substantial, as opposed to merely formal, pretended, or a sham.”). Todemonstrate a genuine issue of material fact, the nonmoving party “must do morethan simply show that there is some metaphysical doubt as to the material facts.”Matsushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574, 586(1986). The nonmoving party must show that the evidence is sufficient to supportthe resolution of the material factual issues in his favor. Anderson, 477 U.S. at 249(citing First National Bank of Arizona v. Cities Service Company, 391 U.S. 253, 288-89(1968)). When evaluating a motion for summary judgment, the court views theevidence in the light most favorable to the nonmoving party. Id. at 255 (citing Adickesv. S.H. Kress & Company, 398 U.S. 144 (1970)). However, it is not incumbent upon -4-
  • 5. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 5 of 11 PageID 822the court to comb the record in search of evidence that creates a genuine issue as to amaterial fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). Thenonmoving party has a duty to designate the evidence in the record that establishesthe existence of genuine issues as to the material facts. Celotex Corporation v. Catrett,477 U.S. 317, 324 (1986). “When evidence exists in the summary judgment recordbut the nonmovant fails even to refer to it in the response to the motion for summaryjudgment, that evidence is not properly before the district court.” Malacara, 353 F.3dat 405. II. ANALYSIS A. Judicial Review of Administrative Agency Decisions Under the Administrative Procedures Act, 5 U.S.C. § 500 et seq. (“APA”), “[a]person suffering legal wrong because of agency action, or adversely affected oraggrieved by agency action within the meaning of a relevant statute, is entitled tojudicial review thereof.” Id. § 702. In particular, a “reviewing court shall . . . holdunlawful and set aside agency action, findings, and conclusions found to be . . .arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”Id. § 706(2)(A). The Fifth Circuit has explained that an agency’s action is arbitraryand capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the -5-
  • 6. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 6 of 11 PageID 823 agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”Luminant Generation Company, L.L.C. v. United States Environmental Protection Agency,675 F.3d 917, 925 (5th Cir. 2012) (quoting Texas Oil and Gas Association v.Environmental Protection Agency, 161 F.3d 923, 955 (5th Cir. 1998)). The scope of review of agency actions under Section 706(2)(A) is “verynarrow.” Delta Foundation, Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002)(quoting Louisiana v. Verity, 853 F.2d 322, 327 (5th Cir. 1988)). “The court’s role isnot to weigh the evidence pro and con but to determine whether the agency decision‘was based on a consideration of the relevant factors and whether there was a clearerror of judgment.’” Id. (quoting Louisiana, 853 F.2d at 327). “Thus, if the agencyconsiders the factors and articulates a rational relationship between the facts foundand the choice made, its decision is not arbitrary and capricious.” Id. (quoting Harrisv. United States, 19 F.3d 1090, 1096 (5th Cir. 1994)). “The ‘agency’s decision neednot be ideal, so long as it is not arbitrary or capricious, and so long as the agency gaveat least minimal consideration to relevant facts contained in the record.’” Id. (quotingMotor Vehicle Manufacturers Association v. State Farm Mutual Automobile InsuranceCompany, 463 U.S. 29, 43 (1983)). B. Requests under I-129 and I-539 #2 The plaintiffs argue that the USCIS’ denial of their I-129 and I-539 #2requests was “arbitrary, capricious, and not in accordance with law.” Complaint ¶ 29. -6-
  • 7. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 7 of 11 PageID 824In particular, they argue, the USCIS was wrong to determine that the position thatSunshine Stores had for Mrs. Ali was not a “specialty occupation.” Id. ¶ 28. In thiscase, the court concludes that the USCIS’ determination that the Sunshine Storesposition was not a “specialty occupation” was not arbitrary and capricious. 1. Legal Standard: What Constitutes a “Specialty Occupation” Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., a qualifiedtemporary nonimmigrant alien can come to the United States to work for asponsoring employer in a “specialty occupation.” Id. § 1101(a)(15)(H)(i)(b). Thesealiens are known as “H-1B” nonimmigrants. 8 C.F.R. § 214.2(h)(1)(ii)(B). If anemployer wishes to employ an H-1B nonimmigrant, the employer must demonstratethat offered position is a specialty occupation, and that the potential H-1Bnonimmigrant is qualified for the position. See 8 C.F.R. § 214.2(h)(4)(iv)(A). A “specialty occupation” is one that requires “theoretical and practicalapplication of a body of highly specialized knowledge, and [the] attainment of abachelor’s or higher degree in the specific specialty (or its equivalent) as a minimumfor entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1)(A)-(B).To qualify as a specialty occupation, the position offered by the employer must meetone of the four following requirements: (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; -7-
  • 8. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 8 of 11 PageID 825 (2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; (3) The employer normally requires a degree or its equivalent for the position; or (4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.8 C.F.R. § 214.2(h)(4)(iii)(A). 2. Application In this case, Sunshine Stores filed an I-129 request to change Mrs. Ali to an H-1B nonimmigrant so she could be employed as an accountant. See Brief at 15. TheUSCIS denied the I-129 request on the grounds that Sunshine Stores failed todemonstrate that the position constituted a “specialty occupation.” Id. Afterreviewing the record, the court concludes that the USCIS did not act arbitrarily andcapriciously when it denied Sunshine Stores I-129 application. First, it is clear that Sunshine Stores did not “normally require[] a degree or itsequivalent for the position.” See 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). This is becauseSunshine Stores had never previously employed anyone as an accountant. Brief at 8. Second, Sunshine Stores failed to show that a baccalaureate or higher degreewas a normal requirement for that position, or a parallel position in similar -8-
  • 9. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 9 of 11 PageID 826organizations. See 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(2). After Sunshine Storessubmitted the I-129, USCIS requested additional evidence on whether the positionthat Mrs. Ali would fill was a specialty occupation. Brief at 8. The responsecontained a lengthy description of what Mrs. Ali would be doing if she filled theposition. Appendix to Brief in Support of Defendants’s Motion for SummaryJudgment (“Appendix”) at 22-74 (docket entry 49). However, the vast majority ofthis description was an explanation of what accountants and financial managers do ingeneral. While many positions for accountants do require advanced degrees,Sunshine Stores failed to show that the particular position it was offering Mrs. Aliwould normally require such a degree in the industry. Finally, Sunshine Stores failed to show that the particular position was sospecialized, complex, or unique that it could only be performed by an individual witha degree. See 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). While the plaintiffs’ complaintalleges that Sunshine Stores has gross revenues of over $6,000,000, Complaint ¶ 3,the I-129 filed in 2004 stated that Sunshine Stores’ gross annual income was“+$100,000”, and that it employed ten individuals, Appendix at 4. However, as theAdministrative Appeals Unit noted, “[n]ot all accounting employment is performedby degreed accountants.” Appendix at 134. Instead, many accounting tasks arecompleted by individuals with “associate degrees or certificates, or who have acquiredtheir accounting expertise through experience.” Id. After considering the size and -9-
  • 10. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 10 of 11 PageID 827complexity of Sunshine Stores’ operations, the USCIS reasonably decided that itsaccounting needs did not require someone with an advanced degree. As a result, it was not arbitrary or capricious for the USCIS to deny SunshineStore’s I-129 request. Moreover, because Mr. Ali’s I-539 request was contingent onSunshine Stores I-129 request, it was not arbitrary or capricious for the USCIS todeny Mr. Ali’s I-539 request. C. Requests under I-539 #1 Mr. and Mrs. Ali also argue that the USCIS was arbitrary and capricious indenying their I-539 #1 request to extend their B-2 nonimmigrant visitor status. Inthis application, the Alis stated that they “have substantial ties with India and intendto return upon completion of our visit.” Appendix at 156. They explain that their“stay in the United States will be temporary and [they] do not intend to stay herelonger than [their] authorized time.” Id. However, while the I-539 #1 request waspending, Sunshine Stores submitted the I-129 request on behalf of Mrs. Ali. Brief at25. As stated in the denial of the I-539 #1 request, “[t]his action strongly suggeststhat through your attorneys, you submitted your applications primarily to circumventthe immigration laws of the United States.” Id.; see also Appendix at 166. As a result,it was not arbitrary or capricious of the USCIS to deny the Alis’ I-539 #1 request. - 10 -
  • 11. Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 11 of 11 PageID 828 III. CONCLUSION For the reasons set forth above, the defendants motion for summary judgmentis GRANTED. Judgment will be entered for the defendants. SO ORDERED.May 21, 2012. ___________________________________ A. JOE FISH Senior United States District Judge - 11 -
  • 12. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 1 of 33 PageID 580 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISIONSUNSHINE STORES, INC., §RAMZAN ALI, and §MUNIRA RAMZAN ALI, § § Plaintiffs, § §v. § CASE NO. 3:09-CV-1352-G §ERIC HOLDER, §U.S. ATTORNEY GENERAL, §et. al. § § Defendants. §BRIEF IN SUPPORT OF DEFENDANTS’S MOTION FOR SUMMARY JUDGMENT JAMES T. JACKS UNITED STATES ATTORNEY /s/ Angie L. Henson ANGIE L. HENSON Assistant United States Attorney TX SBN: 09492900 1100 Commerce Street, Third Floor Dallas, Texas 75242 Telephone: 214.659.8600 Facsimile: 214.659.8807 Email: angie.henson@usdoj.gov
  • 13. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 2 of 33 PageID 581 TABLE OF CONTENTS Page(s)SUMMARY ................................................................................................................................... 1OVERVIEW OF THE TEMPORARY NONIMMIGRANT WORKER H-IB VISAPROGRAM .................................................................................................................................... 2UNDISPUTED FACTS ................................................................................................................ 6REVIEW UNDER THE APA ..................................................................................................... 13ARGUMENTS AND AUTHORITIES ....................................................................................... 15CONCLUSION ............................................................................................................................ 29CERTIFICATE OF SERVICE ................................................................................................... 29 i
  • 14. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 3 of 33 PageID 582 TABLE OF AUTHORITIES FEDERAL CASESAll Aboard Worldwide Couriers, Inc. v. Attorney General, 8 F. Supp. 2d 379 (S.D. N.Y. 1998) 5Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N. D. Tex. 1989) ....................................... 14Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000) ............................................................... 5, 14Giddings v. Chandler, 979 F.2d 1104 (5th Cir. 1992) ........................................................... 22, 28Hayward v. United States Department of Labor, 536 F.3d 376 (5th Cir. 2008) ......................... 14Motor Vehicles Manufacturers Association of the United States v. State Farm MutualAutomobile Insurance Co., 463 U.S. 29 (1983) ........................................................................... 14Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. 2007) ................................................... 23Sherwin-Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003) ............................... 22, 28State of Louisiana v. Verity, 853 F.2d 322 (5th Cir.1988) ......................................... 13, 14, 16, 27 FEDERAL STATUTES8 C.F.R. §§ 103.3(a)(1)(iii) ........................................................................................................... 48 C.F.R. §103.3(a)(1)(iv) ............................................................................................................... 48 C.F.R. § 103.5 ........................................................................................................................... 258 C.F.R. § 103.5(a)(1)(ii)(A) ....................................................................................................... 268 C.F.R. § 214.1(c)(1) .................................................................................................................. 168 C.F.R. § 214.1(c)(5) (2003) ...................................................................................................... 238 C.F.R. §214.2(h) ......................................................................................................................... 48 C.F.R. §214.2(h)(13)(iii) ............................................................................................................. 48 C.F.R. §214.2(h)(15)(ii)(B)(1) .................................................................................................... 48 C.F.R. §214.2(h)(4)(iii)(A) ............................................................................................... 5, 9, 17 ii
  • 15. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 4 of 33 PageID 5838 C.F.R. § 214.2(h)(4)(iv)(A) ........................................................................................................ 38 C.F.R. § 214.2(h)(8)(ii)(A)(1) .................................................................................................... 38 C.F.R. § 214.2l(ii)(M) ............................................................................................................... 165 C.F.R. § 701(a)(2) ..................................................................................................................... 238 U.S.C. § 1101(a)(15)(H)(i)(b) ..................................................................................................... 28 U.S.C. §§ 1103(a)(1) & 1182(n) ................................................................................................. 38 U.S.C. §§ 1184(c)(1) ................................................................................................................... 38 U.S.C. § 1184(i)(1)(A)-(B) ......................................................................................................... 48 U.S.C. § 1258 ............................................................................................................................ 158 U.S.C. § 1361 ........................................................................................................................ 5, 165 U.S.C. § 701 .............................................................................................................................. 155 U.S.C. § 701(a)(2) ............................................................................................................... 14, 155 U.S.C. § 706(2)(A) .................................................................................................................... 1320 C.F.R. § 655.731(a) ................................................................................................................... 38 C.F.R. § 214.2(h)(4)(i)(B)(2) ................................................................................................ 3, 16 MISCELLANEOUSUSCIS Adjudicators Field Manual §31.3(g)(1) ............................................................................ 6 iii
  • 16. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 5 of 33 PageID 584 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISIONSUNSHINE STORES, INC., §RAMZAN ALI, and §MUNIRA RAMZAN ALI, § § Plaintiffs, § §v. § CASE NO. 3:09-CV-1352-G §ERIC HOLDER, §U.S. ATTORNEY GENERAL, §et. al. § § Defendants. §BRIEF IN SUPPORT OF DEFENDANTS’S MOTION FOR SUMMARY JUDGMENT Eric Holder, United States Attorney General; Janet Napolitano, Secretary, UnitedStates Department of Homeland Security; Michael Aytes, Deputy Director, United StatesCitizenship and Immigration Services; David Roark, Director, United States Citizenshipand Immigration Services, Texas Service Center; and Mark Hazuda, Acting Director,United States Citizenship and Immigration Services, Vermont Service Center, Defendants(USCIS, collectively), file this Brief in support of their Motion for Summary Judgment. SUMMARY Plaintiffs Ramzan Ali (Ramzan) and his wife, Munira Ramzan Ali (Munira)entered the United States in 2003 on single-entry B-2 visitor visa stamp. In 2004,Plaintiff Sunshine Stores, Inc. (Sunshine) filed an I-129 Petition for Non-ImmigrantBrief in Support of Defendants’s Motion for Summary Judgment - Page 1
  • 17. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 6 of 33 PageID 585Worker seeking permission to hire Munira as an accountant. Ramzan filed two I-539Applications to Extend/Change Non-Immigrant Status, one seeking to extend his and hiswife’s visit as visitors and the other seeking to change his status to an H-4 dependentwhich would allow him to stay in the United States with his wife if Sunshine’s I-129 wasgranted. USCIS denied the I-129 and both of the I-539s. The Plaintiffs assert that USCIS erred as a matter of law when it denied the I-129and I-539s and that its denials were arbitrary and capricious. The granting of I-129s andI-539s is within the discretion of USCIS. To prove that the denials were arbitrary andcapricious, the Plaintiffs must show that USCIS did not consider relevant factors and thatthe decisions were clear errors of judgment. In addition to the decisions on theapplications being discretionary, the denials were appropriate based on the informationPlaintiffs submitted at the time they filed the applications. The Plaintiffs seek a writ of mandamus, a declaratory judgment and relief underthe Administrative Procedure Act but fail to show entitlement to any relief. There is nogenuine dispute as to any material fact, however, and the Defendants are entitled tojudgment as a matter of law. OVERVIEW OF THE TEMPORARY NONIMMIGRANT WORKER (H-1B) VISA PROGRAM The Immigration and Nationality Act (INA) provides for the classification ofqualified temporary worker (“nonimmigrant”) aliens who are coming to the United Statesto perform services for a sponsoring employer in a “specialty occupation.” 8 U.S.C. §Brief in Support of Defendants’s Motion for Summary Judgment - Page 2
  • 18. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 7 of 33 PageID 5861101(a)(15)(H)(i)(b). These aliens are classified as “H-1B” nonimmigrants. Employersseeking to employ foreign nationals under the H-1B program must demonstrate that theproffered position is a specialty occupation, and that the alien beneficiary qualifies for thespecialty occupation position. 8 C.F.R. § 214.2(h)(4)(iv)(A). The determination ofwhether an employer’s position qualifies as a specialty occupation has been delegated tothe Secretary of Homeland Security. 8 U.S.C. §§ 1103(a)(1) & 1184(c)(1). Before filing a petition with USCIS to classify an alien beneficiary as an H-1Bnonimmigrant, the petitioning employer must file a labor condition application (LCA)with the Department of Labor (DOL). 8 U.S.C. §§ 1182(n), 1184(c)(1). When filing anLCA, the employer must agree, among other things, to pay a prevailing wage identifiedby DOL to the prospective H-1B employee. 20 C.F.R. § 655.731(a). Once an employerreceives a certified LCA from DOL, the employer files its petition, Form I-129, withUSCIS, along with supporting documentation concerning the claimed specialtyoccupation position and the alien beneficiary’s qualifications. Nonetheless, a certifiedLCA issued by DOL is not a determination that the position at issue is a specialtyoccupation. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The certified LCA simply establishes theemployer’s responsibility to comply with certain prevailing wage requirements and tomaintain certain working conditions. 8 U.S.C. § 1182(n). If the USCIS adjudicator makes a favorable determination, the employer’s H-1Bpetition is approved and can have a validity period up to three years. 8 C.F.R. §214.2(h)(8)(ii)(A)(1). After three years, an employer may request an extension of stayBrief in Support of Defendants’s Motion for Summary Judgment - Page 3
  • 19. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 8 of 33 PageID 587for the H-1B nonimmigrant for an additional three years. 8 C.F.R. §214.2(h)(15)(ii)(B)(1). Aliens are limited to a six- year period in H-1B status, 8 C.F.R. §214.2(h)(13)(iii), except under specific statutorily defined exceptions. If the USCIS adjudicator determines that the employer’s H-1B petition should bedenied, the employer has the right to appeal the decision to the USCIS AdministrativeAppeals Office (AAO). 8 C.F.R. §§ 103.3(a)(1)(iii) & § 214.2(h)(12)(i). The AAO is anappellate body located within its own division of USCIS, separate from the adjudicationarm of the agency, which is located under the Domestic Operations Director. 8 C.F.R. §103.3(a)(1)(iv). Specialty Occupations “Specialty occupation” means an occupation that requires a “theoretical andpractical application of a body of highly specialized knowledge, and [the] attainment of abachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum forentry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1)(A)-(B). Theregulations further define specialty occupation as an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to . . . accounting . . . and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.8 C.F.R. §214.2(h). In order to qualify as a specialty occupation within the meaning ofthe statute, the position must meet one of the following criteria: ( 1 ) A baccalaureate or higher degree or its equivalent is normally theBrief in Support of Defendants’s Motion for Summary Judgment - Page 4
  • 20. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 9 of 33 PageID 588 minimum requirement for entry into the particular position; ( 2 ) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; ( 3 ) The employer normally requires a degree or its equivalent for the position; or ( 4 ) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.8 C.F.R. §214.2(h)(4)(iii)(A). The burden of proof rests on the employer and the alien beneficiary to establishthat the proffered position is a specialty occupation and that the alien beneficiaryqualifies for the specialty occupation. 8 U.S.C. § 1361. The employer may not make anend run around the specialty occupation requirement by hiring an alien with a collegeeducation for a position that does not require such a high level. Cf. Defensor v. Meissner,201 F.3d 384, 387-88 (5th Cir. 2000). After receiving the employer’s I-129 H-1B petition, certified LCA, and othersupporting documents, USCIS adjudicators make a case-by-case, fact-sensitive,determination of whether the job at issue in the petition is a specialty occupation. See AllAboard Worldwide Couriers, Inc. v. Attorney General, 8 F. Supp. 2d 379, 382 (S.D. N.Y.1998). In order to assess the issue of whether a position offered is a specialty occupation,USCIS adjudicators are instructed to consider all facts surrounding the petition, includingBrief in Support of Defendants’s Motion for Summary Judgment - Page 5
  • 21. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 10 of 33 PageID 589“the beneficiary’s education and work experience, the nature of the petitioner’s business,industry practice, and salary.” USCIS Adjudicator’s Field Manual § 31.3(g)(1).1 USCISadjudicators are also instructed to consult the Bureau of Labor Statistics’s OccupationalOutlook Handbook (OOH) as a source for determining industry standards. Id. UNDISPUTED FACTS 1. Ramzan and Munira Ali (“the Alis,” collectively) were issued B-2 visitor visastamps in their passports by the United States Consulate in Chennai (Madras), India onAugust 18, 2003. The B-2 visa stamps were valid until November 17, 2003, for a singleentry into the United States. (Appendix at 161-62.)2 2. On October 12, 2003, the Alis were admitted to the United States in B-2 visitorstatus on the single-entry visas, with authorization to remain until April 11, 2004. (Id. at159-60.) 1 The Adjudicator’s Field Manual is publically available athttp://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm. 2 The appendix is composed of excerpts from the Administrative Records. The completeAdministrative Records are on file with this Court.Brief in Support of Defendants’s Motion for Summary Judgment - Page 6
  • 22. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 11 of 33 PageID 590 3. On April 2, 2004, USCIS received the Alis’s Form I-539, Application toExtend/Change Nonimmigrant Status (I-539 #1), requesting an extension of their B-2visitor status through October 10, 2004. (Id. at 154.) 4. The Alis included the following statement in their request for extension of theirB-2 visitor status: “We have substantial ties with India and intend to return uponcompletion of our visit . . . We will not be working in United States and have substantialmeans to support ourselves and take care of any expenses that may occur. Our stay inUnited States will be temporary and we do not intend to stay here longer than ourauthorized time.” (Id. at 156.) 5. Included in the April 2, 2004, request for extension of their B-2 visitor statuswas a brief letter from Donald R. Samuel, M.D., dated March 2, 2004, stating thatMunira had recently had surgery and was under his medical care. Dr. Samuel’s letteralso stated that it was not advisable for Munira to travel at that time but that he wouldadvise when she could travel safely. (Id. at 163.) 6. Sunshine is a company involved in convenience store retail sales. On June 11,2004, while the I-539 #1 was pending, USCIS received Form I-129, Petition for aNonimmigrant Worker, filed by Sunshine on behalf of Munira for the position ofAccountant. The petition requested that Munira’s status be changed from B-2 visitor toH-1B nonimmigrant worker and that the H-1B status be extended until October 1, 2007.(Id. at 3-4, 11.) 7. Ramzan concurrently filed another Form I-539, Application to Extend/ChangeBrief in Support of Defendants’s Motion for Summary Judgment - Page 7
  • 23. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 12 of 33 PageID 591Nonimmigrant Status (I-539 #2), requesting that his status be changed from B-2 visitor toH-4 dependent and that the H-4 status be extended until October 1, 2007. (Id. at 76.) 8. On June 15, 2004, USCIS issued a Request for Additional Evidence (RFE) onthe I-129 requesting evidence that the position requested in the petition was a specialtyoccupation as defined in the RFE and that it was the industry standard as it related toSunshine’s organization to hire individuals with a baccalaureate or equivalent for theposition in the petition. It also requested information and documentary evidence on whoperformed Sunshine’s accounting services in the past, as well as that individual’squalifications, and evidence that Munira was in a valid non-immigrant status. Sunshinewas given 12 weeks to respond. (Id. at 16-17.) 9. On August 19, 2004, USCIS received Sunshine’s RFE response. Sunshinestated that it had not previously employed any person in the position of accountant priorto hiring Munira and was unable to provide documentary evidence regarding a history ofminimum requirements for the position. Sunshine also stated that Munira’s dutiesresembled those set forth in the DOL’s OOH for the positions of financial manager,accountant/auditor and budget analyst, and attached the corresponding portion of theOOH but did not otherwise answer the questions posed in the RFE. (Id. at 19-71.) 10. On August 30, 2004, USCIS denied the Alis’s I-539 #1 request forextension of their B-2 visitor status. The request was denied because the Alis did notprovide sufficient information regarding the nature of Munira’s medical treatment, suchas the type of treatment she received, the anticipated date of release from medical care,Brief in Support of Defendants’s Motion for Summary Judgment - Page 8
  • 24. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 13 of 33 PageID 592whether the treatment was unavailable in her home country, whether she was unable tofly home due to the ongoing medical treatment, and evidence of her paid medical bills.Further, USCIS noted that an I-129 Petition for a Nonimmigrant Worker had been filedon behalf of Munira, contrary to her statement in the B-2 extension request that shewould not be working in the United States. Based on the record, the Alis did not meettheir burden of proof in demonstrating that they intended to depart the United States andthat their request for an extension of their B-2 visitor status was not merely an attempt toprolong their stay indefinitely. (Id. at 165-66.) 11. On September 1, 2004, USCIS denied Sunshine’s I-129 filed on behalf ofMunira because Sunshine failed to establish that the offered position of accountant metthe regulatory definition of “specialty occupation.” The denial explained that the criticalelement is not the title of the position or an employer’s self-imposed standard. Sunshinedid not submit documentary evidence to satisfy the criteria in 8 C.F.R. §214.2(h)(4)(iii)(A). Therefore, given the size, scope and complexity of Sunshine’sorganization, as well as the duties of an accountant in relation to Sunshine’s business, thisposition did not qualify as a specialty occupation. (Id. at 71-74.) 12. Concurrent with the I-129 denial, USCIS also denied Ramzan’s I-539 #2request to change status from B-2 visitor to H-4 dependent. His request for change ofstatus to H-4 was contingent upon the approval of Munira’s change of status. Since theI-129 filed on behalf of Munira was denied, Ramzan’s request to change status to H-4was consequently denied. (Id. at 80.)Brief in Support of Defendants’s Motion for Summary Judgment - Page 9
  • 25. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 14 of 33 PageID 593 13. On October 5, 2004, untimely Motions to Reopen on both the I-129 onbehalf of Munira and the I-539 #2 were filed. Sunshine made additional assertions aboutits business but did not provide evidence of its actual size, number of retail stores owned,its finances, or how it was determined that it needed a full-time accountant. (Id. at 81-99.) 14. Also on October 5, 2004, the Alis, through new counsel, filed a Motion toReopen the denial of their I-539 #1 request for extension of their B-2 visitor status. Thenew counsel did not submit Form G-28, Notice of Entry of Appearance as Attorney orRepresentative. The Alis argued that (1) it was error for USCIS to deny the I-539 #1extension request without first requesting additional documentation on Munira’s medicalcondition, and (2) USCIS is permitted to presume preconceived intent to engage inemployment only if the I-129 had been filed within 60 days of her initial entry as a B-2visitor or within 60 day of filing her B-2 extension of her visitor status. Attached to theMotion to Reopen was a brief letter from Donald R. Samuel, M.D., dated September 30,2004, which stated that: Munira was under his care from November 2003 through April28, 2004; she had a cesarean section on February 4, 2004; she was not advised to travelBrief in Support of Defendants’s Motion for Summary Judgment - Page 10
  • 26. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 15 of 33 PageID 594for 8 weeks after surgery; and the baby was approved for travel in May 2004 at Munira’spost-partum visit on April 28, 2004. (Id. at 168-70.) 15. On December 3, 2004, USCIS denied both Motions to Reopen/Reconsider onthe I-129 for Munira and I-539 #2 change of status for Ramzan as untimely filed andbecause the grounds originally stated in the denials had not been overcome. (Id. at 101-06.) 16. On December 16, 2004, USCIS dismissed the Alis’s Motion to Reopen theirI-539 #1 extension of their B-2 visitor status and upheld the original denial. The Motionto Reopen was not properly filed, as neither the affected party (i.e. the Alis) nor theattorney or representative of record had signed the motion. (The new counsel had notfiled Form G-28, Notice of Appearance as Attorney or Representative and, therefore, wasnot counsel of record.) Further, upon review of the entire record, the Alis failed toovercome the basis for the original denial, which was based on their attempt to prolongtheir stay in the United States indefinitely. (Id. at 172.) 17. On December 23, 2004, Sunshine filed Form I-290B Appeal to theAdministrative Appeals Unit (AAU, now Administrative Appeals Office or AAO),requesting review of the I-129 denial and indicated that a brief and/or evidence would besubmitted to the AAO within 30 days. (Id. at 107-08.) 18. On January 18, 2005, an extension of 30 days to file a brief in support of theappeal was requested. On February 21, 2005, another extension of five business days tosubmit the brief in support of the appeal was requested. These extensions were granted,Brief in Support of Defendants’s Motion for Summary Judgment - Page 11
  • 27. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 16 of 33 PageID 595with the appeal brief due on February 28, 2005. (Id. at 109-14.) 19. On February 25, 2005, the AAO received the appeal brief. Sunshine assertedthat it had submitted evidence to show the proposed position of accountant is a specialtyoccupation and cited to the OOH. (Id. at 115-26.) 20. On July 27, 2006, the AAO dismissed the appeal and affirmed thedetermination that Sunshine failed to establish it would employ Munira in a specialtyoccupation. The AAO pointed out that some of the listed duties did not relate toSunshine’s business, such as coordinating efforts with sales representatives to target newsales territories and advising sales representatives in matters such as import and exportregulations. The AAO further stated that, while the size of the company is not relevant indetermining whether a position qualifies as a specialty occupation, the level of incomegenerated by Sunshine had a direct and substantial bearing on the scope and depth of theproposed duties of accountant. Sunshine’s gross annual income of “+$100,000” andemployment of 10 persons in the convenient store retail business did not necessitate thehiring of an accountant with a bachelor’s degree in accounting. (Id. at 127-35.) 21. On August 29, 2006, Sunshine filed a Motion to Reopen/Reconsider theAAO’s decision. (Id. at 136-43.)Brief in Support of Defendants’s Motion for Summary Judgment - Page 12
  • 28. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 17 of 33 PageID 596 22. On November 17, 2006, USCIS dismissed Sunshine’s Motion toReopen/Reconsider, as the evidence submitted did not overcome the basis for denial. (Id.at 144-46.) 23. On February 8, 2008, the AAO dismissed Sunshine’s Motion toReopen/Reconsider. The motion did not meet the regulatory requirements for a motionto reopen since it did not reference any new facts in support of the I-129 but merelyincluded an opinion letter based on facts already in existence. Further, the motion did notmeet the requirements of a motion to reconsider because it did not establish that the priordecision was based on an incorrect application of law. (Id. at 147-50.) 24. On March 11, 2008, Sunshine, through [another] new counsel, filed a finalMotion to Reopen and Reconsider with a brief attached. On March 18, 2009, USCISdismissed the Motion to Reopen and Reconsider, as the motion did not present any newfacts or establish that the prior decision was based on an incorrect application of law orUSCIS policy. (Id. at 151-52.) REVIEW UNDER THE APA “Under the APA, the administrative record is reviewed to determine whether thechallenged action was arbitrary and capricious, an abuse of discretion, or otherwise not inaccordance with law.” State of Louisiana v. Verity, 853 F.2d 322, 326 (5th Cir.1988); see5 U.S.C. § 706(2)(A). Under this “very narrow” standard of review, the Court may not“weigh the evidence in the record pro and con.” Verity, 853 F.2d at 327. Instead, theCourt’s “role is to review the agency action to determine whether the decision ‘was basedBrief in Support of Defendants’s Motion for Summary Judgment - Page 13
  • 29. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 18 of 33 PageID 597on a consideration of the relevant factors and whether there was a clear error ofjudgment.’” Id. (quoting Motor Vehicles Mfrs. Ass’n of the United States v. State FarmMut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “A reviewing court is not to substitute itsjudgment for that of the agency, and the court is to show proper deference to agencyexpertise.” Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 535 (N. D. Tex. 1989).“Thus, if the agency considers the factors and articulates a rational relationship betweenthe facts found and the choice made, its decision is not arbitrary or capricious.” Verity,853 F.2d at 327. “Indeed, the agency’s decision need not be ideal, so long as it is notarbitrary or capricious, and so long as the agency gave at least minimal consideration torelevant facts contained in the record.” Id. (footnote omitted). See also Hayward v.United States Dept. of Labor, 536 F.3d 376, 379-80 (5th Cir. 2008) (same). “[A] federalagency’s interpretation of a statute whose administration is entrusted to it is to beaccepted unless Congress has spoken directly on the issue . . . Even if statutory orregulatory language is ambiguous, deference is usually given to the agency’sinterpretation.” Defensor, 201 F.3d at 386. The APA, however, does not apply to agencyaction that “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).Brief in Support of Defendants’s Motion for Summary Judgment - Page 14
  • 30. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 19 of 33 PageID 598 ARGUMENTS AND AUTHORITIESThe I-129 and I-539 #2 Sunshine filed an I-129 on June 11, 2004, seeking to hire Munira into a “specialtyoccupation,” as an accountant. USCIS denied the I-129 because Sunshine failed to showthat it was the industry standard for its business, or for businesses of like size anddescription, to employ a full-time accountant. Sunshine exhausted its administrativeremedies in an unsuccessful effort to get the denial overturned. Sunshine now appeals thedenial through the use of the Administrative Procedure Act (APA), 5 U.S.C. § 701.Sunshine, however, is not entitled to relief. A. The Decision to Deny Was Not An Error as a Matter of Law. The grant or denial of an I-129 is at the discretion of USCIS. 8 U.S.C. § 1258.Because the decision is discretionary, the denial of the I-129 cannot be an error as amatter of law. Moreover, the APA does not apply to agency action committed by law toagency discretion. 5 U.S.C. § 701(a)(2). B. The Decision to Deny Was Not Arbitrary and Capricious. Even if the APA did apply here, however, the decision to deny the I-129 was notarbitrary and capricious. USCIS gave Sunshine an opportunity to amend or supplementits application in order to obtain a positive adjudication of the I-129. In the RFE, USCISspecifically set out the definitions and standards used to determine if an occupation is aspecialty occupation and asked for specific information from Sunshine to show that theposition it had open was for a specialty occupation. Sunshine failed to provide theBrief in Support of Defendants’s Motion for Summary Judgment - Page 15
  • 31. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 20 of 33 PageID 599requisite information. USCIS considered the factors involved in establishing anoccupation as a specialty occupation. It also clearly articulated the reasons why it madethe decision to deny the I-129. The reasons given were rationally related to the facts.The denial was not arbitrary and capricious. See Verity, 853 F.2d at 327. Anyone who makes application for admission into the United States has the burdenof proof “to establish that he is eligible to receive such visa . . . or is not inadmissible . . .and is entitled to the nonimmigrant . . . status claimed. If such person fails to establish tothe satisfaction of [USCIS] that he is eligible” he shall not be admitted. 8 U.S.C. § 1361. An employer who seeks to hire a nonimmigrant temporary worker as anaccountant in a “specialty occupation” must apply for an H-1B visa on behalf of thenonimmigrant it wishes to hire. Application is made through a Form I-129. 8 C.F.R. §214.1(c)(1). “The director shall determine if the application involves a specialtyoccupation as defined in section 214(i)(1) of the Act [8 U.S.C. 1184(i)(1)] .” 8 C.F.R. §214.2(h)(4)(i)(B)(2). “Director means a Service Center director with delegated authorityat 8 CFR 103.1.” 8 C.F.R. § 214.2l(ii)(M). In the case at hand, Sunshine could not show that a bachelor’s degree or itsequivalent was the normal minimum requirement for entry into the “accountant” positionit had open because it had never hired anyone for that position. (Appendix at 32.) For thesame reason, it could not show that it normally required a degree for the position. ForSunshine to have been successful on its I-129, therefore, it had to show that (1) it wascommon in the industry in parallel positions among similar organizations that bachelor’sBrief in Support of Defendants’s Motion for Summary Judgment - Page 16
  • 32. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 21 of 33 PageID 600degrees were required, (2) the particular position was so complex or unique that it couldhave been performed only by someone with a degree, or (3) the nature of the specificduties were so specialized and complex that knowledge obtained by acquiring a bachelorsdegree was required to perform them. 8 C.F.R. § 214.2(h)(4)(iii)(A) (emphasis added).Sunshine did not make the requisite showing. On its initial application, Sunshine said only that the proposed duties were to“collect, analyze and manage financial data; oversee and direct financial operations.”(Appendix at 5.) In its attachment to the application, instead of listing or explaining theduties that would be specifically required of the person filling its position, Sunshineprovided what appeared to be a copied list of the duties often associated with anaccountant’s position from the OOH. (Id. at 12-13.) Sunshine made no effort to connectthe lists to the actual job in question. On June 15, 2004, USCIS sent Sunshine a “Request for Additional Evidence.” Inthe request, it set out the definition and requirements for the specialty occupation ofaccountant. (Id. at 16-17.) The request also asked for specific information, including: evidence showing “that the occupation is a specialty occupation as defined above . . . evidence that it is the industry standard as it relates to [Sunshine’s] organization to hire individuals with a baccalaureate or equivalent for this position . . . the name of the individual who provided accounting services for Sunshine in the past and documentary evidence that the individual had a bachelor’s degree, if he did.(Id. at 17.) (Emphasis added). Sunshine was given 12 weeks to respond to the request.In its response to the Request for Evidence, Sunshine provided an even longer list of jobBrief in Support of Defendants’s Motion for Summary Judgment - Page 17
  • 33. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 22 of 33 PageID 601duties of, and courses taken by, financial managers, accountants, auditors, and budgetanalysts in the abstract and compared its listing to information in publications from theDOL. (Id. at 34-70.) No connection between that list and Sunshine’s business inparticular or the type and size of a business like Sunshine was attempted. Further,Sunshine did not provide the name of the individual who had previously providedaccounting services. On September 1, 2004, USCIS denied the application for the I-129. The Directorexplained the denial, stating: the information you submitted does not adequately establish that the position meets the criteria of a specialty occupation. This office requested that the petitioner submit documentary evidence to establish that it is the industry standard among similar organizations to require the attainment of a bachelor’s degree to perform the duties of an accountant. The evidence submitted did not establish that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry as an Accountant as it relates to your organization and the industry. It is not enough for the petitioner to copy the duties that are regularly associated with a specialty occupation and then say the beneficiary will be performing those duties. The service recognizes that certain Accountant positions are a specialty occupation however, given the size, scope and complexity of the petitioners’s organization3, as well as the duties of an accountant as it relates to the petitioners business, this position does not qualify as a specialty occupation. The beneficiary has not established that a bachelor degree is common to the industry in parallel positions among similar organizations or, in the alternative, that the employer showed that its particular position is so complex or unique that it can be performed only by 3 In their complaint, Plaintiffs assert that Sunshine’s gross annual revenue is more than$6,000,000.00. USCIS has no knowledge of Sunshine’s present gross earnings, but even if that is anaccurate figure, it is irrelevant for purposes of the I-129 it filed seven years ago. In the I-129, Sunshinestated that its gross annual income was “+$100,000.00” and that it employed ten individuals. (Appendixat 4.)Brief in Support of Defendants’s Motion for Summary Judgment - Page 18
  • 34. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 23 of 33 PageID 602 an individual with a degree. The critical element is not the title of the position or an employer’s self imposed standard, but whether the position actually requires theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s degree in the specific specialty as the minimum for entry into the occupation as required by the act. The petitioner must establish that the position realistically requires knowledge, both theoretically and applied, which is almost exclusively obtained through studies at the institution of higher learning. The depth of knowledge and length of studies required are best typified by a degree granted by such an institution at the baccalaureate level. It must be demonstrated that the position requires a precise and specific course of study, which relates directly and closely to the position in question.(Id. at 71-74.) The I-539 #2 was denied at the same time because Ramzan’s request tochange status was contingent on the I-129 filed on behalf of Munira. (Id. at 80.) On appeal from the denial, the AAO’s written dismissal of the appeal clearlyshowed that it considered the relevant factors involved in granting or denying an I-129and clearly articulated the reasons for its decision: To the extent that they are described in the record, some of the duties appear to involve some level of accounting. However, not all positions that involve accounting and are labeled by the employing firm as accountant positions require a four-year degree in accounting or a related field. The critical question is whether performance of the particular position in question involves the theoretical and practical application of highly specialized accounting knowledge that is attained only by at least a bachelor’s degree or its equivalent in accounting or a related specialty. Not all accounting employment is performed by degreed accountants. Therefore, the performance of duties requiring accounting knowledge does not necessarily establish a proffered position as a specialty occupation. The question is not whether the petitioner’s position requires knowledge of accounting principles, which it does, but rather whether it is one that normally requires the level of accounting knowledge that is signified by atBrief in Support of Defendants’s Motion for Summary Judgment - Page 19
  • 35. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 24 of 33 PageID 603 least a bachelor’s degree, or its equivalent, in accounting or a related specialty. ... While the size of a petitioner’s business is normally not a factor in determining the nature of a proffered position, both level of income and organizational structure are appropriately reviewed when a petitioner seeks to employ an H-IB worker as an accountant. In cases where a petitioner’s business is relatively small, the AAO reviews the record for evidence that its operations are, nevertheless, of sufficient complexity to indicate that it would employ the beneficiary in an accounting position requiring a level of financial knowledge that may be obtained only through a baccalaureate degree in accounting or its equivalent.(Id. at 131-32.) The AAO pointed out that, in the RFE, Sunshine was given an opportunity toprovide evidence to establish that the proffered position was a specialty occupation.Instead of taking advantage of the opportunity, however, Sunshine merely provided amore extensive description of the duties of an accountant, in general, many of which didnot seem to be related to Sunshine’s business. It was not apparent to the Director or theAAO how duties such as coordinating efforts with sales representatives to target newsales territories and advising sales representatives in matters such as import and exportregulations related to the position at Sunshine. Sunshine also failed to provide evidenceof the industry standard as it relates to its organization, the name of the person(s) whohad previously provided accounting services for Sunshine, and whether he or she had abachelor’s degree. The AAO further pointed out that Sunshine neither provided an explanation of theBrief in Support of Defendants’s Motion for Summary Judgment - Page 20
  • 36. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 25 of 33 PageID 604processes and knowledge that Munira would apply in the performance of the proposedposition, nor described or provided examples of specific matters of its business andexplained how Munira’s work on such matters would correlate with highly specializedknowledge only attained by achieving a bachelor’s degree, or its equivalent, in a specificspecialty. (Id. at 133.) The record showed that Sunshine is a company involved inconvenience store retail sales, employed ten persons, and earned a gross annual income of“+$100,000.” (Id. at 134.) Sunshine failed to provide evidence to support its assertionthat it had numerous daily financial transactions that necessitated the hiring of a personwith a bachelor’s degree in accounting. Indeed, the only evidence of record regardingfinancial transactions are tax documents supporting Sunshine’s claims that it has tenemployees. (Id.) There are no tax documents regarding its income and no evidence thatit has more than one convenience store, as Sunshine alleged in the petition. (Id.)Further, although whether a position qualifies as a specialty occupation is not dependenton the petitioning entity’s size, the level of income generated by the petitioner has a directand substantial bearing on the scope and depth of the proposed duties. (Id.)Responsibility for income of $100,000 differs vastly from responsibility associated with afar larger income or from a firm that is responsible for the accounting work of manyclients. (Id.) The AAO’s sustaining of the denial of the I-129 was well-reasoned and factuallyspecific. Sunshine failed to provide the appropriate evidence to support its I-129. C. Mandamus Relief is Not Available.Brief in Support of Defendants’s Motion for Summary Judgment - Page 21
  • 37. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 26 of 33 PageID 605 Because it is USCIS’s decision to determine if the application should be granted,and the granting of an I-129 is within the discretion of USCIS, Sunshine also fails toshow any right to a writ of mandamus. “Mandamus is an appropriate remedy ‘only whenthe plaintiff’s “claim is clear and certain and the duty of the officer is ministerial and soplainly prescribed as to be free from doubt.”’ Thus, mandamus is not available to reviewthe discretionary acts of officials.” Giddings v. Chandler 979 F.2d 1104, 1108 (5th Cir.1992) (internal citations omitted). Sunshine does not have a clear right to relief, andUSCIS’s decision on the I-129 was not ministerial. Moreover, the decision on the I-129was within the discretion of USCIS. The Plaintiffs are not entitled to a writ ofmandamus. D. Declaratory Relief is Not Available. The Plaintiffs also cannot show a right to relief under the Declaratory JudgmentAct. Sherwin-Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003). Adeclaratory judgment is inappropriate solely to adjudicate past conduct. Sherwin-Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003).Brief in Support of Defendants’s Motion for Summary Judgment - Page 22
  • 38. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 27 of 33 PageID 606 E. No Relief is Available. The I-539 #2 filed concurrently with the I-129 was dependent on the I-129.(Appendix at 80.) Because the denial of the I-129 was appropriate, the concurrent denialof the I-539 #2 was similarly appropriate. There is no genuine issue of material fact regarding what evidence was submittedto USCIS for the I-129 and the basis for the denial. USCIS properly denied theapplications. USCIS is entitled to judgment as a matter of law.4The I-539 #1 A. The Decision to Deny Was Not An Error as a Matter of Law. The grant or denial of an I-539 is at the discretion of USCIS. “Where an applicantor petitioner demonstrates eligibility for a requested extension, it may be granted at thediscretion of the Service. There is no appeal from the denial of an application forextension of stay filed on Form I-129 or I-539.”5 8 C.F.R. § 214.1(c)(5). Because thedecision is at the discretion of the USCIS, the denial of the I-539 #1 cannot be an error asa matter of law. Moreover, the APA does not apply to agency action committed toagency discretion. 5 C.F.R. § 701(a)(2). B. The Decision to Deny Was Not Arbitrary and Capricious. 4 Plaintiffs also asked for approval of their applications nunc pro tunc. Even if USCIS had abusedits discretion when it denied the applications, Plaintiffs cannot obtain approval nunc pro tunc. This Courtdoes not have authority to approve the I-129 and I-539 nunc pro tunc. Romero-Rodriguez v. Gonzales,488 F.3d 672 (5th Cir. 2007). 5 The regulation was word-for-word the same at the time the Alis’s application was denied. 8C.F.R. § 214.1(c)(5) (2003).Brief in Support of Defendants’s Motion for Summary Judgment - Page 23
  • 39. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 28 of 33 PageID 607 The B-2 visitor authorization on which Ramzan and Munira Ali entered the UnitedStates in October of 2003 expired on April 11, 2004. Nine days before the expiration oftheir visitor status, on April 2, 2004, they filed an I-539 Application to ExtendNonimmigrant Status, seeking to extend their visit until October 10, 2004. (Id. at 154.)They stated on the application that “[w]e will not be working in the United States . . . Ourstay in United States will be temporary and we do not intend to stay here longer than ourauthorized time.” (Id. at 156.) In the letter that accompanied the I-539 #1, the Alis’sattorney stated, “Mr. Ali is requesting an extension of his visa in order to have additionaltime to visit friends and family and assist his wife during her recovery period.” (Id. at158.) Included in the Application package was a letter from a doctor, dated 30 daysearlier on March 2, 2004, which stated, “The patient stated above is currently under mymedical care. She recently had surgery and I do not feel that it is advisable for her totravel at this time. We’ll advise your company when we feel that this patient can travelsafely.” (Id. at 163.) Nothing was stated on the I-539 #1 form itself that indicated thatMunira had had surgery or was ill. Neither the attorney’s letter nor the doctor’s letterrevealed why Munira was under medical care. On August 30, 2004, USCIS denied the I-539 #1. (Id. at 165-66.) In the denialletter, the Director specifically pointed out the information that should have beenprovided regarding Munira’s medical situation if they had wanted to use it as a reason toextend their B-2 visitors status. No information was provided as to (1) the type oftreatment she was undergoing and when that treatment would end, (2) whether MuniraBrief in Support of Defendants’s Motion for Summary Judgment - Page 24
  • 40. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 29 of 33 PageID 608could obtain that type of care in her home country, (3) whether she was unable to flybecause of her medical condition, and (4) proof of her actual medical bills. (Id. at 165.) In the denial letter, the Director also (1) cited the statement on the I-539 #1 that theAlis would not be working in the United States and (2) referenced the I-129 petition filedon behalf of Munira indicating the exact opposite. (Id. at 165-66.) The Director statedthat “[t]his action strongly suggests that through your attorneys, you submitted yourapplications primarily to circumvent the immigration laws of the United States.” (Id. at166.) The I-539 #1 was denied because the Alis did not prove that they intended todepart the United States. (Id.) They failed to establish that the purpose for which theyhad been admitted to the country had not been accomplished and that their request for anextension of stay was not merely an attempt to prolong their stay indefinitely. (Id.) TheAlis were directed to make immediate arrangements to depart the United States. (Id.) There is no appeal from the denial of an I-539. 8 C.F.R. § 103.5. The Alis wereinformed that they had no appeal rights but that they could file a motion to reopen orreconsider the application within 30 days of the decision to deny. (Appendix at 166.)The Alis filed a motion to reopen the application after the deadline, on October 5, 2004.(Id. at 168.) Attached to the motion to reopen was another letter from Munira’s doctorexplaining that Munira had had a cesarean section on February 4, 2004, and was advisednot to travel for eight weeks after the surgery. (Id. at 170.) The doctor also advised thatthe Alis’s baby was approved for travel in May, 2004. (Id.)Brief in Support of Defendants’s Motion for Summary Judgment - Page 25
  • 41. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 30 of 33 PageID 609 The attorney who filed the motion to reopen was not the same one who had filedthe I-539 #1 and was not the attorney or representative of record. (Id. at 172.) The Alisdid not sign the motion themselves. (Id.) The regulations require that “A motion must bein writing and signed by the affected party or the attorney or representative of record, ifany.” 8 C.F.R. § 103.5(a)(1)(ii)(A). The motion to reopen, therefore, was not a properlyfiled motion to reopen. (Id. at 172.) The motion was dismissed because the Alis failed toovercome the basis for the original denial and because it was improperly filed. (Id.) Further, the decision to deny the I-539 #1 was not arbitrary and capricious: 1. The application contained no information regarding Munira’s medicalcondition, yet the attorney’s letter stated that that was at least one of the reasons forstaying. 2. The application also specifically stated that they would not be working in theUnited States and, yet, two months later Sunshine filed an I-129 application for Munira tostay and work. 3. The application asked for an extension of the B-2 visitor status to October 10,2004. Sunshine’s I-129 asked for the H-1B visa to begin October 1, 2004.Brief in Support of Defendants’s Motion for Summary Judgment - Page 26
  • 42. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 31 of 33 PageID 610 4. The doctor’s March 2, 2004, letter that accompanied the I-539 #1 was vagueand did not state what Munira’s medical condition was or that the advice against travelingwas for only eight weeks after her February 4, 2004, surgery. 5. The I-539 #1 was filed on April 2, 2004. The 56th day (eight weeks) afterMunira’s February 4th surgery is March 31, three days before they submitted thedoctor’s March 2 letter to USCIS, failing to reveal that the advice against traveling wasno longer valid–and also appearing to cover up the fact that Munira had given birth. 6. When it was eventually discovered (in the motion to reopen filed in October)that Munira had given birth, it was also discovered that the baby had been cleared totravel the previous May. 7. Seven years later, the Alis are still in this country, having lived here illegallysince the denial of their I-539 #1. All of the reasons given for the I-539 #1 and all of the actions taken in connectionwith it support the Director’s decision that the I-539 #1 was filed primarily to circumventthe immigration laws of the United States and that the Alis were attempting to prolongtheir stay in the United States indefinitely. The reasons given for denying the I-539 #1were rationally related to the facts. The denial was not arbitrary and capricious. SeeVerity, 853 F.2d at 327. And although the Director did not know they would still be herein 2011, the fact that they are still here and have been out of status all of this time, onlyBrief in Support of Defendants’s Motion for Summary Judgment - Page 27
  • 43. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 32 of 33 PageID 611serves to support the Director’s conclusion and confirms that the conclusion was notarbitrary and capricious. C. Mandamus Relief is Not Available. Because it is USCIS’s decision to determine if the application should be granted,and the granting of an I-539 is within the agency’s discretion, the Alis also fail to showany right to a writ of mandamus. “Mandamus is an appropriate remedy ‘only when theplaintiff’s “claim is clear and certain and the duty of the officer is ministerial and soplainly prescribed as to be free from doubt.”’ Thus, mandamus is not available to reviewthe discretionary acts of officials.” Giddings v. Chandler, 979 F.2d at 1108 (internalcitations omitted). The Alis do not have a clear right to relief, and the USCIS’s decisionon the I-539 #1 was not ministerial. Moreover, the decision was within the discretion ofUSCIS. The Alis are not entitled to a writ of mandamus. D. Declaratory Relief is Not Available. The Alis also cannot show a right to relief under the Declaratory Judgment Act. Adeclaratory judgment is inappropriate solely to adjudicate past conduct. Sherwin-Williams Co., 343F.3d 383. There is no genuine issue of material fact regarding what evidence was submittedto USCIS for the I-539 #1 and the reasons USCIS denied it. USCIS properly denied theapplication. USCIS is entitled to judgment as a matter of law.Brief in Support of Defendants’s Motion for Summary Judgment - Page 28
  • 44. Case 3:09-cv-01352-G Document 48 Filed 09/23/11 Page 33 of 33 PageID 612 CONCLUSION USCIS’s actions have not been arbitrary or capricious. There are no genuinedisputes as to any material fact. USCIS, therefore, is entitled to judgment as a matter oflaw. Respectfully submitted, JAMES T. JACKS UNITED STATES ATTORNEY /s/ Angie L. Henson ANGIE L. HENSON Assistant United States Attorney TX SBN: 09492900 1100 Commerce Street, Third Floor Dallas, Texas 75242 Telephone: 214.659.8600 Facsimile: 214.659.8807 Email: angie.henson@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that on September 23, 2011, I electronically filed the foregoingdocument with the clerk of court for the U.S. District Court, Northern District of Texas,using the electronic case filing system of the court. I also certify that a copy of thisdocument was served upon all opposing parties, or their attorneys of record, by electronicdelivery on this 23rd day of September, 2011. /s/ Angie L. Henson Angie L. Henson Assistant U.S. AttorneyBrief in Support of Defendants’s Motion for Summary Judgment - Page 29
  • 45. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 1 of 13 PageID 1 I", )~~~¥P~ ,¢b . -iJNITEDSTATESDISTRICTCOURT NORTHERN DISTRICT OF TEXAS DALLAS, TEXAS ) .1. __ ::>. l)~~ 1:1 L t}L .~~z ~. <0Ki i:iEkli DlSH<.iCT Of TEXA:-.SUNSHINE STORES, INC., )RAMZAN ALI, and ) I FILEDMUNIRA RAMZAN ALI ) ) I JUL 11-2009 Plaintiffs ) O..j~ DISTRICT CotJR.T ) ) Deputy · v. ) )ERIC HOLDER, U.S. Attorney General, )JANET NAPOLITANO, Secretary, ) 3·09CV1352- G Case No. ______________U.S. Department of )Homeland Security, )MICHAEL AYTES, Deputy Director, )U.S. Citizenship and Immigration Services, )and )DAVID ROARK, Director, )U.S. Citizenship and Immigration )Services, Texas Service Center )MARK HAZUDA, Acting DirectorU.S. Citizenship and Immigration )Services, Vermont Service Center )----------------~D=e=£=en=d=a=n=ts~___) PLAINTIFFS ORIGINAL COMPLAINT FOR WRIT OF MANDAMUS AND DECLARATORY RELIEF COMES NOW, SUNSHINE STORES, INC., RAMZAN ALI, AND MUNIRA RAMZAN ALI, Plaintiffs in the above-styled and numbered cause, and for cause of action would allege the following: 1
  • 46. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 2 of 13 PageID 2 INTRODUCTION1. This action is brought to compel Defendants to lawfully adjudicate Form I- 129 (Hl-B - Petition for a Nonimmigrant Worker) and Form I-539 (B-2 - Application to Extend/Change Nonimmigrant Status) under which Plaintiff Munira Ramzan Ali is the beneficiary. Plaintiffs have a clear right to the relief requested; the Defendants have a clear duty to perform the act in question; and no other adequate remedy is available. The applications were filed with the United States Citizenship and Immigration Services (hereinafter "USCIS" or "the Service") and remain within the jurisdiction of the Defendants, who have unlawfully denied said applications to Plaintiffs detriment.2. Further, this action is brought seeking declaratory judgment against the Defendants on the basis that the USCIS, as a matter of law, unlawfully deprived the Plaintiff Sunshine Stores, Inc., of an employee; the Plaintiff Munira Ramzan Ali of employment; and Plaintiff Munira Ramzan Ali and Plaintiff Ramzan Ali the proper adjudication of Form I-539 and Form I-129 and, subsequently, Form I-485. PARTIES3. Established in 1999, Plaintiff Sunshine Stores, Inc., is a Texas-based retailer with revenues grossing over $6,000,000 annually. Plaintiff Sunshine Stores, 2
  • 47. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 3 of 13 PageID 3 Inc., has separate locations m cities throughout Texas, namely: San Augustine, Newton, Jasper, Nacogdoches, Brookland, and Pineland. Plaintiff Sunshine Stores, Inc., is headquartered in Brookland, Texas.4. On June 10, 2004, Plaintiff Sunshine Stores, Inc., filed Form I-129 with the USCIS seeking to hire Plaintiff Munira Ramzan Ali on an H-1B as an accountant.5. PlaintiffRamzan Ali, a thirty-three year old native and citizen of India, is the husband of Plaintiff Munira Ramzan Ali. Plaintiff Ramzan Ali filed an application for a B-2 Visa that allowed his wife and him to enter the United States on October 12, 2003. On or about April2, 2004, PlaintiffRamzan Ali filed a Form I-539 (Application to Extend/Change Nonimmigrant Status) to extend the B status. On or about August 30, 2004, the USCIS denied the Form I-539 filed by Plaintiff Ramzan Ali. Plaintiff Ramzan Ali lives in Lafayette, Louisiana.6. Plaintiff Munira Ramzan Ali is a thirty-three year old native and citizen of India. On October 12, 2003, she entered the United States on a visitors visa with her husband, Plaintiff Ramzan Ali. She is the beneficiary of Form I- 129 filed by Plaintiff Sunshine Stores, Inc., with the USCIS on June 10, 2004. She resides in Lafayette, Louisiana.7. Defendant Eric Holder is Attorney General of the United States, and this 3
  • 48. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 4 of 13 PageID 4 action is brought against him in his official capacity. Defendant Holder is generally charged with enforcement of the Immigration and Nationality Act and is further authorized to delegate such powers and authority to subordinate employees of the Department of Homeland Security. See Homeland Security Act of 2002, Public Law 107-296. More specifically, the Attorney General is responsible for the adjudication of immigrant and nonimmigrant petitions filed pursuant to the Immigration and Nationality Act. The users is an agency within the U.S. Department of Homeland Security to whom the Attorney Generals authority has in part been delegated and is subject to the Attorney Generals supervision.8. Defendant Janet Napolitano is Secretary of the U.S. Department of Homeland Security, and this action is brought against her in her official capacity. Defendant Napolitano is generally charged with the enforcement of the Immigration and Nationality Act, as those duties have been delegated to her Department in accordance with the Homeland Security Act of 2002.9. Defendant Michael Aytes is users Deputy Director and is currently the highest ranking users official, and this action is brought against him in his official capacity. Defendant Aytes is generally charged with supervising the execution of duties delegated to users by the Attorney General and Secretary of the U.S. Department of Homeland Security. 4
  • 49. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 5 of 13 PageID 510. Defendant David Roark, Director of the Texas Service Center, is a USCrS official who is generally charged with supervisory authority over all operations within the Services Texas Service Center.11. Defendant Mark Hazuda, Acting Director of the V ennont Service Center, is a users official who is generally charged with supervisory authority over all operations with in the users Vermont Service Center. JURISDICTION12. Jurisdiction in this case is proper under 28 U.S.C. §§ 1331 and 1361. Relief is requested pursuant to said statutes.13. Jurisdiction in this case is proper under 5 U.S.C. § 551 et seq., 28 U.S.C. §§ 1331 and 1361,5 U.S.C. § 701 et seq., and 28 U.S.C. § 2201 et seq. Relief is requested pursuant to said statutes. Jurisdiction is also conferred by 5 U.S.C. § 706. A district court reviewing agency action may hold unlawful and set aside agency action that, inter alia, is found to be: "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A); "or without observance of procedure required by law, 5 U.S.C. § 706(2)(D). "Agency action" includes in relevant part, "an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). 5
  • 50. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 6 of 13 PageID 614. The aid of the Court is invoked under 28 U.S.C. §§ 2201 and 2202, authorizing declaratory judgment. VENUE15. Venue is proper in this court, pursuant to 28 USC§ 1391(e), in that this is an action against officers and agencies of the United States in their official capacities, brought in the District where a Defendant resides and where a substantial part of the events or omissions giving rise to Plaintiffs claim occurred. More specifically, the Plaintiffs petitions were filed in and unlawfully denied by the USCIS Texas Service Center located in Dallas, Texas, which falls within this tribunals jurisdiction. EXHAUSTION OF REMEDIES16. Plaintiffs have exhausted their administrative remedies. On April 2, 2004, Plaintiff Ramzan Ali filed an extension application for the B-2. On August 30, 2004, the B-2 application was denied. On December 16, 2004, the USCIS erroneously denied the motion to reopen the I-539 application.17. On June 10, 2004, Plaintiff Sunshine Stores, Inc., filed a Form I-129 for Plaintiff Munira Ramzan Ali. On September 1, 2004, the Service denied the Form I-129 petition on the basis that the proffered position was not that of a "specialty occupation." 6
  • 51. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 7 of 13 PageID 718. On October 5, 2004, Plaintiff Sunshine Stores, Inc., filed Motions to Re- open the denial of the I-129 (H-lB) and H-4. On December 31, 2004, USCIS denied the motions. On December 23, 2004, Plaintiff Sunshine Stores, Inc., appealed the decision to the AAO. On July 27, 2006, the AAO denied the appeal. On August 29, 2006, Plaintiff Sunshine Stores, Inc., filed a motion to reopen the AAO decision. On November 17, 2006, the motion was denied. A request was made to reopen the case which was accepted and the AAO denied the motion on February 8, 2008. Another motion to re-open was denied on March 18, 2009. REMEDY SOUGHT19. Plaintiffs seek to have the court to compel the Defendants to lawfully adjudicate the Form I-129 and Form I-539 under which Plaintiff Munira Ramzan Ali is the beneficiary. Although 28 U.S.C. § 1361 does not authorize injunctive relief, mandamus jurisdiction permits a flexible remedy. The same complaint may request declaratory, injunctive, and mandamus relief.20. Furthermore, the Plaintiffs seek a judgment from the court to declare the actions of the users unconstitutional or illegal due to their failure to comply with the applicable law. 28 U.S.C. § 2201. 7
  • 52. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 8 of 13 PageID 8 CAUSE OF ACTION21. All legal prerequisites having been satisfied. On April 2, 2004, Plaintiff Ramzan Ali filed an extension application for the B-2. On June 10, 2004, Plaintiff Sunshine Stores, Inc. filed a petition for nonimmigrant worker (Form I-129) on behalf ofPlaintiffMunira Ramzan Ali.22. Plaintiffs are members of the distinct class of people within the zone of interest of Section 101(a)(15)(B) and Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act.23. Specifically, PlaintiffRamzan Ali is a member of the class of aliens who are eligible to benefit from the filing of Form I-539. As such, Defendants owed a duty to Plaintiff Ramzan Ali to adjudicate the I-539 in accordance with the applicable statutes and regulations24. Plaintiffs are members of the class of professional aliens, employers, and spouses who are eligible to benefit from a Form I-129. As such, Defendants owed a duty to Plaintiffs to adjudicate the I-129 petition in accordance with the applicable statutes and regulations.25. In denying the I-539, the Defendants erred as a matter oflaw. The denial of the request for extension of the B status because of the filing of a Form I-129 (H-lB) was erroneous as a matter of law because applications for H-lB allow dual intent. Under the dual intent doctrine, a nonimmigrant may have 8
  • 53. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 9 of 13 PageID 9 both immigrant and nonimmigrant intent. Matter of H-R-, 7I&N Dec. 651, 654 (R.C. 1958). The doctrine of dual intent is recognized by USCIS for H visa categories. 8 C.P.R. §§ 214.2(h)(16); Cable, DOS, 91-State-171115, ,-r 5 (May 24, 1991), reprinted in 68 No. 21 Interpreter Releases 681-84 (June 3, 1991) (finding by the Department of State that if the H-1 obtained a change of status, the fact that s/he "is the beneficiary of an application for preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a v1sa as a nonimmigrant"; see also Cable, DOS, 92-State-193038 (June 17, 1992), reprinted in 69 No. 27 Interpreter Releases 872-73 (July 20, 1992) (stating that the Department of State has long recognized the concept of "dual intent").26. When the USCIS denied the I-539, the USCIS erroneously imputed the intent of Plaintiff Sunshine Stores, Inc., upon Plaintiff Munira Ramzan Ali when the USCIS erroneously adjudicated the I-539 filed by PlaintiffRamzan Ali. Plaintiff Sunshine Stores, Inc.-not Plaintiff Munira Ramzan Ali-filed the I-129.27. The denial of the H-1B as a matter of law was an error because an accountant is a specialty occupation. A "specialty occupation" includes the 9
  • 54. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 10 of 13 PageID 10 definition of professional. The Board has consistently found that the position of an accountant is a professional position with the statutory definition set forth at 8 C.F.R. § 214.2(h)(4)(ii); Matter of Arjani, 12 I&N Dec. 649 (R.C. 1967); Matter of Doultsinos, 12 I&N Dec. 153 (DD 1957). Whether the position is professional is unrelated to the size of the company or whether it has previously employed personnel in the position. Young China Daily v. Chappell, 742 F.Supp. 552 (N.D.Cal. 1989). An "accountant" by itself is a position which is characterized as a "specialty occupation" by the USCIS. According to the H-1B Handbook, 2009 Edition, by Austin T. Fragomen, Jr., Caren Shannon, and Daniel Montalvo, at § 3:12: Proof and supporting documentation concerning whether an accountant constitutes a "specialty occupation" need not be submitted.28. Given the statutes, the regulations, and respected immigration treatises, Plaintiff Sunshine Stores, Inc., -a company that earns millions of dollars per year-requires an accountant. In support of the need for an accountant, Plaintiff Sunshine Stores, Inc., provided proof that the position of accountant was held previously by Richard Chamberlain, a CPA who performed this service for Plaintiff Sunshine Stores, Inc.29. Defendants owe Plaintiff a duty to lawfully and judiciously adjudicate the Form I-539 and the Form I-129 in a manner that does not violate 5 U.S.C. § 10
  • 55. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 11 of 13 PageID 11 706(2)(A). Defendants violated this statutory duty by erroneously denying Plaintiffs Fonn I-539 and Form I-129 due to the misapplication of the applicably statutes and regulations. The actions of Defendants in this case are, as a matter of law, arbitrary, capricious, and not in accordance with law.30. As a result of Defendants arbitrary, capricious, and unlawful actions, the applicable statutes and regulations have not been implemented in this case and Plaintiffs have been unlawfully deprived of the opportunity to employ a needed candidate to work.31. The actions of the Defendants seem particularly arbitrary, capricious, and unlawful given the following: On October 28, 2005, Plaintiff Sunshine Stores, Inc., filed an ETA Form 9089 (Application for Permanent Employment Certification) for Plaintiff Munira Ramzan Ali. On February 16, 2006, the U.S. Department of Labor Employment and Training Administration certified the Form ETA 9089. On July 10, 2006, Plaintiff Sunshine Stores, Inc., filed an I-140 pursuant to INA Section 203(b)(3)(A)(i) on behalf of the Plaintiff Munira Ramzan Ali. On February 26, 2007, the USCIS approved the I-140 filed by Plaintiff Sunshine Stores, Inc .. If Plaintiff Munira Ramzan Alis qualifications are sufficient for the purpose of the labor certification and the I-140, why not for the I-129?32. Plaintiffs have been greatly damaged by the failure of Defendants to act in 11
  • 56. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 12 of 13 PageID 12 accordance with their ministerial duties under the law. (a) Plaintiff Sunshine Stores, Inc., has been unlawfully deprived of the rights, benefits, and privileges associated with the employment of a capable and specifically qualified employee. (b) Plaintiff Munira Ramzan Ali has been unlawfully deprived of the rights, benefits and privileges associated with lawful employment in the United States. She has been unlawfully deprived of the opportunity to pursue lawful employment in the United States and the ability to maintain lawful status in the United States. (c) Plaintiff Ramzan Ali has been unlawfully deprived of the rights, benefits, and the privileges associated with the adjudication of his Form I-539 and, subsequently, his ability to maintain lawful status in the United States.33. The Defendants, in violation of the Administrative Procedures Act, 5 U.S. C. § 701 et seq., unlawfully denied Plaintiffs petitions and have failed to properly carry out the adjudicative functions delegated to them by law with regard to the Plaintiffs case. PRAYER34. WHEREFORE, in v1ew of the arguments and authority noted herein, Plaintiffs respectfully pray that the Defendants be cited to appear herein and 12
  • 57. Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 13 of 13 PageID 13 that, upon due consideration, the Court enter an order: (a) declaring unlawful Defendants erroneous adjudication of Plaintiffs I-539 petition and approve nunc pro tunc the B-2 status extension; (b) declaring unlawful Defendants erroneous-adjudication of Plaintiffs I-129 petition and approve nunc pro tunc the H-lB status;· (c) requiring Defendants to adjudicate Plaintiffs petition for a nonimmigrant worker on the merits and based on the evidence properly and timely submitted; (d) requiring that the Defendants hold in abeyance the adjudication of the I-485 pending the outcome of the present action; (e) awarding Plaintiffs reasonable attorneys fees and costs; and (f) granting such other relief at law and in equity as justice may require. This 16th day of July, 2009. 13
  • 58. U.S. Department of Homeland Security 20 Mass. Ave., N.W., Rm. 3000 Washington, DC 20529 U.S. Citizenshipidentifying data deleted to and Immigrationprevent clearly unw~~ Services invasion of personal prrva ~, pUBLIC COPY FILE: SRC 04 176 50073 Office: TEXAS SERVICE CENTER Date: fEB 0 8 2008 1 INRE: Petitioner: Beneficiary: PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(H)(i)(b) ON BEHALF OF PETITIONER: INSTRUCTIONS: This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office. Robert P. Wiemann, Chief Administrative Appeals Office www.uscis.gov
  • 59. SRC 04 176 50073Page2DISCUSSION: The service center director denied the nonimmigrant visa petition and the AdministrativeAppeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO on motion toreopen/reconsider. The motion will be dismissed.The petitioner is a retail sales company. It seeks to employ the beneficiary as an accountant and endeavors toclassify him as a nonimmigrant worker in a specialty occupation pursuant to section 10l{a)(l5)(H)(i)(b) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The director denied thepetition on the ground that the proffered position is not a specialty occupation. The AAO affirmed the directorsfindings.The regulation at 8 C.F.R § 103.5 provides in pertinent part that "a motion to reopen must state the new factsto be provided in the reopened proceeding and be supported by affidavits or other documentary evidence.""New" facts are those that were not available and could not reasonably have been discovered or presented inthe previous proceeding. A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R.§ 103.5(a)(4). The petitioners motion does not meet the above cited regulatory requirements in that themotion to reopen is not supported by new facts that were unavailable that could not reasonably have beendiscovered or presented in previous proceedings. In support of its motion, the petitioner submitted an opinionfrom a credentials evaluation service which concludes that the duties of the proffered position can only beperformed by an individual with a bachelors degree in business administration, accounting or a related field.The opinion letter is dated August 24, 2006, subsequent to the issuance of the AAOs decision dismissing thepetitioners appeal. The opinion does not contain, or reference, new facts in support of the Form I-129petition that were unavailable and could not reasonably have been discovered or presented in previousproceedings. The opinion writer simply offers an opinion on the educational requirements of the positionbased on facts already in existence when the AAO issued its original decision on July 27, 2006. Thepetitioner could have requested an expert opinion to support its petition based on the facts considered by thecredentials service opinion writer at any time during previous proceedings. The motion to reopen shall bedismissed.A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinentprecedent decisions to establish that the decision was based on an incorrect application of law or CIS policy;and (2) establish that the decision was incorrect based on the evidence of record at the time of the initialdecision. 8 C.F.R. § 103.5(a)(3).The motion does not establish that the prior decision was based on an incorrect application of law or CISpolicy, nor does it establish that the decision was incorrect based on the evidence of record at the time of theinitial decision. The petitioner did not cite any precedent decisions supporting its motion. The recordreflects, and the prior decision correctly states, that the proffered position does not qualify as a specialtyoccupation under 8 C.F.R. § 214.2(h)(4)(iii)(A).A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). In visa petitionproceedings, the burden of proving eligibility remains entirely with the petitioner. Section 291 of the Act,8 U.S.C. § 1361. The petitioner has not met that burden.
  • 60. SRC 04 176 50073Page 3ORDER: The motion is dismissed. The previous decision of the AAO dated July 27, 2006 is affirmed. The petition is denied.