ruling on Perez' application) somehow disqualifies him
— is an extraordinarily arbitrary and mechanistic position.
But to turn to the origins and substantive sustainability of that
notion, both parties spend a great deal of energy discussing two INS
rulings (P. Exs. B & C) dating from 1993 and 1994, each of which involved
an INS reversal of a previous visa denial that had been premised on a
finding that the applicant's position was not a "religious occupation."
Both rulings are silent as to whether the applicant had or had not
received any formal religious training. Predictably each side puts its
own spin on that fact: INS urges that from the rulings' silence on the
matter "it is probably safe to assume" that those applicants had received
such formal training,*fn6 while Perez urges the opposite assumption.
Neither assumption is necessary at this point. What is important is
that neither ruling mentions a formal training requirement at all. That
is in sharp contrast to later INS rulings issued in 1999 and 2000
— around the time of Perez's visa denial — all of which do
mention a formal training requirement, expressed with the identical
phrase: "Persons in [religious occupations] must complete prescribed
courses of training established by the governing body of the
denomination" (P. Ex. D). By sharp contrast with the earlier rulings,
that phrase appears in all of the later rulings, even those that do not
turn on the question of formal religious training. Such a change in
language strongly suggests that at some point during the 1990s the INS
implemented a new rule requiring that applicants must have received such
formal training to qualify for religious worker visas.*fn7 This opinion
now turns to the question whether the INS properly promulgated that
Promulgation of the Rule
There is no dispute that INS did not engage in any sort of formal
rulemaking process before adopting the requirement of formal religious
training. Perez argues that the INS adopted that requirement in violation
of the APA, because it is a substantive rule adopted without the use of
notice-and-comment or other formal rulemaking procedures. INS argues to
the contrary that the formal training requirement is simply an
interpretation of the Regulations — more specifically, of the
definition of "religious occupation" — and that therefore no formal
rulemaking was necessary. Perez wins that argument.
As Perez points out, the Regulations define "religious occupation"
solely on the basis of the nature of the work a person performs:
Religious occupation means an activity which relates to
a traditional religious function.
To be sure, that regulation is not entirely unambiguous in all respects.
Some informal interpretation — for example, a
determination of what
qualifies as a "traditional" function of a religion — is obviously
required for the INS to determine who does or does not qualify for a
religious worker visa. But nothing in that definition, which focuses
solely on the activity performed by the applicant and its relationship to
a religious function, even remotely suggests that the background or
qualifications possessed by an applicant might play any part in
determining whether that person qualifies for a visa. Yet INS now argues
that it arrived at the formal training requirement by "interpreting" that
Nowhere in its memoranda has INS offered any real explanation of how
the formal training requirement can be derived from the Regulations. I.
R. Mem. 7 asserts that it is not irrational for INS to require that
religious worker visa applicants have formal training in their field and
reminds this Court that the Act delegates to INS the authority for
determining visa eligibility procedures. But that is not what is at issue
here. Perez has not disputed that INS authority extends to the
establishment of visa eligibility procedures, nor has he contended
— at least not for the sake of his challenge to INS procedures
— that the formal training requirement is inherently irrational.
Instead he contends that the formal training requirement amounts to a
substantive rule that was impermissibly created informally — in
violation of APA's requirements.
This Court agrees: Nothing in the Regulations' definition of "religious
occupation" suggests a reasonable "interpretation" that includes a formal
training requirement. This opinion can assume without deciding that the
implementation of a formal training requirement is within the scope of
INS authority under the Act — but that in no way exempts INS from
following the mandatory formal rulemaking procedures before implementing
such a substantive rule. That it failed to do, and its failure is fatal
to the principal gravamen of its denial of Perez' application.
This Court therefore finds INS's denial of Perez' visa application on
the ground that he lacks formal training as a music director to be
invalid.*fn8 INS's decision based on that ground is vacated.
Neither side is entitled to judgment as a matter of law. As this
opinion has held, INS's motion fails because its visa denial was premised
on Perez' failure to meet a rule that it implemented in violation of the
APA. But Perez's motion also fails because the present record does not
establish — in a single respect reserved by INS in its denial
ruling — that he meets all other criteria for receipt of a
religious worker visa.
Some explanation on that last point is needed. At the end of the INS
ruling, it stated without elaboration that El Buen Pastor had failed to
establish its ability to pay Perez the proffered wage, as required by
Reg. § 204.5(g)(2). That issue had not been raised in the ultimate
visa denial nor in any INS requests for additional information. But INS
has again raised it in a footnote to its most recent submission (I. R.
Mem. 1 n. 1), and Perez has responded
with a brief submission of his
own. Because that suffices to create a genuine issue of material fact,*fn9
Perez also cannot obtain a final favorable judgment here and now.
This action is therefore remanded solely to enable El Buen Pastor to
make a showing to INS that it is able to pay Perez the proffered wage. As
and when such a showing is made (as would appear to pose no problem,
given the effort and expense that have been devoted to the current
controversy), INS is ordered to grant Perez a religious worker visa. If
however it were to turn out that El Buen Pastor cannot pay Perez as it
and he have represented, INS would be entitled to reject the visa
petition on that ground.