United States District Court, Northern District of Illinois, E. D
December 3, 1971
AURELIO M. JAVIER, PLAINTIFF,
IMMIGRATION & NATURALIZATION SERVICE, DEFENDANT.
The opinion of the court was delivered by: Marovitz, District Judge.
Motion For Summary Judgment
On January 6, 1971, the Plaintiff, Aurelio M. Javier, who is a
Philippine citizen, entered this country as a non-immigrant for
pleasure. Plaintiff was entitled to remain in the United States
up to and including March 1, 1971, with such status. On or
about March 4, 1971, Plaintiff submitted a visa petition with
supporting documents which sought a reclassification to a third
preference immigrant as an accountant under Section 203(a)(3)
of the Immigration and Nationality Act as amended.
In his supporting documents, Plaintiff stated that he had
attended, but had not graduated from, Jose Rizal College, in
Mandoluyong, Philippines. Plaintiff attended Jose Rizal College
from June of 1959 to November of 1963. The Plaintiff received
109 credits, with 30 hours in accounting while attending Jose
Rizal College, and therefore never graduated.
Plaintiff, in his supporting documents, states that his work
experience consisted of accounting and storekeeping for the
Bureau of Customs, Manila, Philippines from February of 1963 to
December of 1966. He states the nature of the business to be
warehousing with his duties consisting of using an adding
machine and typewriter. Plaintiff also states that he worked
from January of 1966 to December of 1968 as an accounting clerk
for Atlas Equipment and Machines. He states that his duties
there also consisted
of the use of an adding machine and typewriter. On March 17,
1971, the District Director of the Immigration and
Naturalization Service denied Plaintiff's third preference visa
petition as an accountant. As the reason for his denial of the
petition, the District Director stated:
"A bachelors degree with a major in accounting or education and
experience equivalent to a degree is required to qualify for
third preference immigrant classification as an accountant. You
have only one hundred and nine (109) total college credits, and
you do not have a bachelors degree and you claim no experience
as an accountant. Therefore, the petition is denied." R. 11.
The Plaintiff was allowed 15 days from the date of the District
Director's decision to appeal to the Regional Commissioner of
the Immigration and Naturalization Service.
On March 23, 1971, Plaintiff's attorney filed a Notice of
Appeal and requested 10 days in which to file a brief. On March
27, 1971 a brief was filed on behalf of the Plaintiff.
The reasons given for the appeal were that:
1. Plaintiff had 30 units in accounting which is sufficient for
a major in that subject.
2. Plaintiff had experience as he had been an apprentice
accountant for five years and three additional thereafter.
3. Plaintiff's education and experience were the equivalent of
a bachelor's degree in the profession of accounting.
On May 5, 1971, the Regional Commissioner of the Immigration
and Naturalization Service denied Plaintiff's appeal for a
third preference and in his decision stated:
"The petition for preference classification as an accountant
was filed by a 31-year-old native and citizen of the
Philippines. The record reflects the petitioner attended Jose
Rizal College, Philippines from the first semester 1959-1960
through the first semester 1962-1963. During this period he
earned 109 college credits. He did not graduate and received no
degree. His statements concerning employment experience
submitted with his petition reflect employment from February
1963 to December 1966 as an `accountant and storekeeper' for
the Bureau of Customs, Philippines, and from January 1966 to
December 1968 as an `accounting clerk' for a machinery company
in Quezon City. On appeal counsel argues that the District
Director, in his decision, failed to take into consideration
the petitioner's employment background; that his background,
coupled with his 109 college credits, is qualifying for third
preference classification. The District Director's decision was
proper. The petitioner does not have a baccalaureate degree.
His experience as an accounting clerk and in the position of
accountant and storekeeper for the Customs Service combined
with his education are not sufficient to establish that he is
entitled to the classification under the provisions of Section
203(a)(3) of the Immigration and Nationality Act, as amended.
The appeal will be dismissed."
On May 13, 1971, Plaintiff was notified that as a result of the
denial of his appeal he was to depart from the United States on
June 13, 1971.
On June 10, 1971, Plaintiff's attorney notified the Immigration
and Naturalization Service of the instant action and asked that
deportation be suspended until the Court disposed of the
On July 8, 1971, the Immigration and Naturalization Service
agreed to suspend action pending a decision in the District
Court. On September 14, 1971, the Defendant filed its motion
for summary judgment.
It is well established that this Court's duty in reviewing
administrative immigration decisions is limited to determining
whether the law in question has been properly applied and to
whether there has been an abuse of discretion. Song Jook Suh v.
Rosenberg, 437 F.2d 1098 (9th Cir. 1971); Pizarro v. District
Director, I.N.S., 415 F.2d 481 (9th Cir. 1969); Dong Yup Lee v.
U.S. Immigration and Naturalization Service, 407 F.2d 1110
(9th Cir. 1969).
"Abuse of discretion may be found only if there is no evidence
to support the decision or if the decision is based on an
improper understanding of the law". Song Jook Suh v. Rosenberg,
437 F.2d 1098 at 1102. We must therefore determine whether,
under the applicable statutes, Javier's request for a third
preference visa was properly denied.
Section 203(a)(3) of the Immigration and Nationality Act
(8 U.S.C. § 1153(a)(3)) states:
"Visas shall next be made available * * * to qualified
immigrants who are members of the professions, or who because
of their exceptional ability in the sciences or the arts will
substantially benefit prospectively the national economy,
cultural interests, or welfare of the United States."
Although in its definitional section (8 U.S.C. § 1101(a) (32))
the Immigration Statute categorizes "profession" as
specifically including architects, engineers, lawyers,
physicians, surgeons and teachers, that list was by no means
meant to be exhaustive and the Immigration and Naturalization
Service has been fairly liberal in granting third preferences
where some exceptional ability or evidence of professional
status is present. Zoologists (Matter of Roychaudhuri, 11 I.N.
715 (1966)) and Entomologists (Matter of Nakatsug AWA, 11 I.N.
843, (1966)) to cite a couple of examples, have been admitted
under this criteria.
Though there are no hard and fast rules as to who is a
professional there are various distinguishing characteristics
that aid in the decisional process. We will discuss some of
these categories progressing from those instances most clearly
within the realm of the third preference to those least likely
to qualify. The highest form of attainment and one most
conclusive of third preference qualifications is a college
degree in the profession under which one seeks the preference
plus experience in that field. If the evidence substantiates
those characteristics a District Court might well find that the
denial of a third preference by the Immigration Service was an
abuse of discretion. Quite understandably a college degree is
the most basic requirement for professional status and the most
telling factor in determining whether that status exists. Yet
the simple presence of a college degree or the absence of it is
not by itself dispositive of professional status.
One seeking a third preference might possess a degree yet not
be considered a professional either because his vocation is not
a profession or because he lacks practical experience while an
applicant lacking a degree may have the redeeming ingredient of
adequate experience that is equivalent to a degree depending on
the profession in question.
In Tang v. District Director of the U.S. Immigration and
Naturalization Service, 298 F. Supp. 413 (C.D.Cal. 1969) an
alien who had a degree in electronic engineering but only a few
months employment in a position that was not strictly an
engineering one was denied a third preference on the grounds
that the institution from which he received his degree was not
accredited and that his engineer-in-training position could in
no way be considered as the equivalent of practicing
engineering or recognition as a professional engineer.
In Pizarro v. District Director of the United States
Immigration and Naturalization Service, 415 F.2d 481 (9th Cir.
1969) an alien applied for a third preference as a professional
trained in psychology. The applicant held a Bachelor of Science
Degree with a major in psychology yet the Immigration Service
concluded that she did not have sufficient experience and that
a master's degree or the equivalent thereof was a minimum
requirement for status as a professional psychologist and that
with only a bachelor's degree and minimum practical experience
she did not have the
educational qualifications requisite for professional standing.
The court said:
"After a consideration of the relatively few departmental
precedents and examination of various Department of Labor
publications the Regional Commissioner stated as a general
`While the acquisition of a baccalaureate degree is a
minimum academic requirement for recognition as a member of
the professions, the acquisition of such a degree does not
automatically and by itself make the holder a member of the
professions. Some occupations require a degree above the
level of a baccalaureate degree to qualify as a
professional in their field of study.'"
In Sung Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971)
preferential status was denied to an applicant as an
instructor-teacher of cosmetology. She held a bachelor's degree
in English, had studied cosmetology for one year and held an
instructor's license from the State Board of Cosmetology of the
State of California. The court held that there was no abuse of
agency discretion in view of the fact the applicant was not a
The Regional Commissioner in Matter of Asuncion, 11 I.N. 660
aptly summarized what weight a degree ought to be given in
deciding professional status. The applicant held a bachelor of
science degree in medical technology, completed a one-year
course in medical technology, and was certified as a medical
technologist yet she was denied status as a "professional". The
Regional Commissioner said:
"Thus, not every individual is graduated from an accredited
college or university is classifiable as a member of the
professions. If the degree or diploma he obtains equips the
individual to enter an occupation for which the attainment of
the degree or diploma is not a realistic prerequisite, that
occupation may not be considered to be a profession. Also, if
the degree or diploma obtained is so avocational in nature
that it does not provide the recipient with a background
which can be accepted as a realistic qualification for a
specific position, the recipient would not be classifiable as
a member of the professions on the basis of his educational
"On the other hand, it must be recognized that in our modern
society there has been a great expansion in the number of
occupations for which graduation from a college or university
is indeed a realistic prerequisite. Thus, a person with a
degree or diploma from an accredited university or college
(or with the equivalent experience) which has equipped him to
hold a position such as that of a specialized business
executive, bank official, economist, mathematician, chemist,
physicist, pharmacologist, etc. may be regarded as a `member
of the professions' within the meaning of section 203(a)(3),
of the Act, as amended, if it is established that a person
below that educational level would not realistically be
qualified for entry into that field."
On the other hand, there are instances, though they are rarer,
where an applicant will be granted a third preference absent a
college degree. In Guinto v. District Director of U.S.
Immigration and Naturalization Service, 303 F. Supp. 1094
(C.D.Cal. 1969) the applicant received an elementary teacher's
certificate after studying for two years in the Philippine
Islands where she took courses ordinarily taught in this
country as part of a college curriculum in education. She had
been employed as an elementary school teacher for 18 years. The
court held that it was an abuse of discretion for the Service
to deny a third preference given the combination of education
and experience involved.
In Matter of Bienkowski, 12 I.N. 17 (1966) applicant was
granted a third preference as an economist despite the fact
that he had never received any degree from an institution of
higher learning. The Service taking into consideration that he
had attended college
for three years, had passed a general M.A. examination, had
taken the preliminary examinations for a bachelor's degree and
had been employed in numerous high positions in his profession
held that because of his extensive employment experience and
high level of occupational attainment, notwithstanding his lack
of academic achievement, he was a member of the profession.
Thus, we see from the entire line of cases that the definition
of "profession" varies according to the particular profession
involved and that a multitude of factors are taken into
consideration by the Service in deciding whether to grant third
preferences, the most important being the possession of an
academic degree. The simplest cases involve an applicant in an
acknowledged profession who has a degree and adequate
experience. More difficult cases involve the presence of a
degree but lack of experience where the experience or a
graduate degree is an indispensible element of the profession;
cases where the profession itself is dubious and must be
construed; and instances where there is a lack of an academic
degree but there is a vast amount of experience that could
conceivably be considered as a degree equivalent. The most
difficult situation occurs where there is both a lack of a
degree and a questionable amount of experience. The latter
category is our case.
Thus, our task in reviewing the Service's denial of a third
preference must consider whether there was an abuse of
discretion in the finding that Plaintiff's work experience
coupled with his education short of a degree was not of a
nature sufficient to fall within the genre of a "profession".
In doing this we must take into consideration both the nature
of accountancy, the past cases involving applications for a
third preference as accountant and the particular circumstances
in this case.
There is no doubt that an accountant is a member of a
profession as envisioned in 8 U.S.C. § 1153(a)(3). The
Department of Labor Dictionary of Occupational Titles, Volume
II, Third Edition, states that accountants compile and analyze
business records and prepare financial reports, such as profit
and loss statements, balance sheets, cost studies and tax
reports. In Matter of Doultsinos, 12 I.N. 153 (1967) the
petitioner held a bachelor of science degree in accounting from
a college in Greece and attended the University of Maryland
from 1961 to 1964 taking graduate courses in economics. The
District Director concluded that a person with a bachelor's
degree in accounting or a combination of education and
experience equivalent to such a degree, is a member of the
professions within the meaning of section 101(a) (32) and
203(a)(3) of the Act.
In the Matter of Aranji, 12 I.N. 649 (1967) the petitioner for
a third preference as an accountant was awarded a bachelor of
commerce degree where he specialized in accounting and
auditing; had done post graduate work toward a master of
commerce degree, part-time from 1961 to 1965; was a member of
the Association of International Accountants, London, England,
reflecting eligibility to engage in public accountancy; had
been an assistant accountant for three years and an assistant
secretary for several years with a chemical firm. His work
experience with the company was described as supervising the
different aspects of accounting functions that one comes across
in a manufacturing firm, taking charge of taxation matters,
dealing with banks and financial institutions, preparing
project reports, preparing financial reports, setting up
accounting systems and supervision over accounting matters,
consideration of tax implications in a new venture, and
organizing and handling public issue of shares and legal
problems. Interestingly enough, despite all of these
qualifications, the Department of Labor pursuant to request by
the District Director held in an advisory opinion that he was
not considered to be qualified based in part on a finding by
the Department of Health, Education and Welfare that in terms
of education in the United States the applicant's bachelor of
commerce degree was equivalent to a
high school education plus two years of college. The Regional
Commissioner, however, based on the aggregate of his work
experience and educational background overruled the District
Director and granted the third preference.
We must now juxtapose Aranji with Plaintiff Javier who has no
degree (though he has received almost all of the credits
necessary for one), has not pursued graduate courses and who
does not have anywhere near the amount of "true" accounting
experience that Aranji had. The Plaintiff does not allege and
it does not appear that in his eight years as accountant and
storekeeper for the Bureau of Customs and in his years as
accounting clerk for Atlas Equipment that he performed the
functions that would be expected of an accountant in his
country. He certainly did not have anywhere near the experience
that Aranji had and yet the latter's status was quite
questionable, so much so that the Department of Labor and the
District Director thought him to be not qualified.
Based on the foregoing facts and the trend of cases in the
third preference area we cannot say that the Service abused its
discretion in denying the third preference. It is admittedly a
close case and that this Court might well have decided
differently if it was in the position of the Service is not
relevant. Precisely because this Court's duty is not to put
itself in the place of the Service but, rather, to determine
the perameters within which the Service may reach a decision,
we must hold that there has been no abuse of administrative
discretion in determining that Javier's educational background
and work experience in conjunction do not equal professional
qualification. This is the very meaning of discretion-that
there is a number of ways in which an issue can be decided-and
as long as that discretionary decision is within the bounds
delineated by the Statute we cannot interfere.
Neither can we find a lack of due process in the basis of the
Regional Commissioner's decision. He clearly stated that:
"The petitioner does not have a baccalaureate degree. His
experience as an accounting clerk and in the position of
accountant and storekeeper for the Customs Service combined
with his education are not sufficient to establish that he is
entitled to the classification under the provisions of
Section 203(a)(3) of the Immigration and Nationality Act, as
Thus, Plaintiff was clearly informed on what grounds his appeal
was denied and that both his work experience and educational
background had been taken into consideration.
Defendant's Motion For Summary Judgment is granted and
Plaintiff's Cross Motion For Summary Judgment is denied.
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