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Amglo Kemlite Laboratories Inc. v. Bureau of Citizenship and Immigration Services

March 10, 2008

AMGLO KEMLITE LABORATORIES, INC., PLAINTIFF,
v.
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Amglo Kemlite Industries, Inc. ("Amglo") filed suit against the United States Bureau of Citizenship and Immigration Services ("CIS") under the Administrative Procedure Act, 5 U.S.C. § 706, seeking to overturn CIS's decision to deny Amglo's petition for an H-1B visa for its employee, Rico Schulz. Both parties have moved for summary judgment. For the reasons set forth below, the Court denies Amglo's motion and grants CIS's motion.

Background

On February 7, 2006, Amglo filed an I-129 petition for nonimmigrant worker on behalf of Mr. Schulz, one of its engineering employees. In the petition, Amglo applied for an "H-2B" temporary worker classification, which covers aliens who come to the United States temporarily to perform temporary services or labor. Amglo also filed a "premium processing petition" along with its application, which allowed CIS to expedite the petition's processing. CIS processed Amglo's petition through its Nebraska Servicing Center and assigned the petition the number LIN 06 092 71742. On February 21, 2006, CIS sent Amglo a request for further evidence relating to the petition. Amglo provided the requested evidence, and CIS approved Mr. Schulz's H-2B temporary worker classification on March 29, 2006. This classification was valid from April 1, 2006 to October 1, 2006.

On May 24, 2006, Amglo filed a second petition for nonimmigrant worker on behalf of Mr. Schulz. In this petition, Amglo sought an "H-1B" classification, which applies to an alien performing services in a specialty occupation. Amglo also filed a premium processing petition along with the H-1B application.

CIS's Vermont Service Center processed the H-1B application, notified Amglo that it had received the petition, and assigned the petition the number EAC 06 175 52163. On June 7, 2006, CIS issued a Notice of Action to Amglo requesting further evidence to support the H-1B petition. In the notice, CIS asked Amglo to provide evidence to support the contention that Mr. Schulz's position qualified as a specialty occupation. Specifically, CIS requested that Amglo establish the degree required to perform the duties of the position; provide a statement indicating who had performed these duties in the past and the educational achievements of that person, along with documentary evidence to support the claim, such as pay stubs and educational documents of the previous employee; and submit the job posting used to fill the position.In the notice, CIS informed Amglo that its response must be received by September 2, 2006. This gave Amglo twelve weeks to respond.

Amglo did not respond to the Notice of Action, and on September 15, 2006, the Vermont Service Center informed Amglo that CIS had denied the H-1B petition due to "abandonment." CIS further notified Amglo that a denial due to abandonment could not be appealed but that Amglo could file a motion to reopen the petition with evidence that the decision was in error for one or more of the following reasons: 1) the evidence that CIS requested was not material to the issue of Mr. Schulz's eligibility; 2) the required evidence was already submitted with the application, or the request for additional information was complied with during the allotted period; or 3) CIS had sent the request for additional information to an address other than that on the application.

On October 2, 2006, Amglo filed a motion to reopen the case. Amglo argued that CIS's decision to deny the petition for abandonment was incorrect because Amglo had already responded to the request for further evidence. However, the motion referenced the evidence that Amglo had sent in response to the earlier H-2B petition it had filed for Mr. Schulz back in February 2006, not any evidence Amglo had provided in connection with the later H-1B petition. Amglo also attached to the motion to reopen the same evidence it had sent in support of the original H-2B petition. Finally, Amglo sent its motion to reopen to the Nebraska Service Center, which had processed the earlier H-2B petition, not to the Vermont Service Center, which had processed the H-1B petition and which had sent the request for additional evidence.

On January 19, 2007, CIS denied Amglo's motion to reopen the case, stating that Amglo had not met any of the three criteria necessary to permit a case to be reopened. CIS noted in its decision that Amglo had not responded to the request for evidence and that with its motion to reopen, Amglo had re-submitted evidence supporting a previous petition, not the pending H-1B petition.

Amglo then filed this suit seeking a declaratory judgment and injunctive relief. Both sides have moved for summary judgment.

Discussion

Under the Administrative Procedure Act, a court reviewing an administrative agency's decision decides relevant questions of law, interprets statutory provisions as necessary, and may set aside agency actions, findings, and conclusions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §§ 706; Environmental Law and Policy Ctr. v. U.S. Nuclear Regulatory Comm'n, 470 F.3d 676, 682 (7th Cir. 2006).

Amglo argues that CIS's decision to deny its H-1B petition was arbitrary, capricious and an abuse of discretion. It contends there was no need for CIS to request additional evidence. Specifically, Amglo argues that the evidence it had provided to support the petition was sufficient and that because Mr. Schulz had previously been approved for an H-2B visa, it had already been established that he was qualified to work as an engineer.

In support of its H-1B petition, Amglo provided a description of Mr. Schulz's proposed duties; the "Labor Condition Application" certified by the U.S. Department of Labor; proof that Mr. Schulz had the equivalent of a bachelor's and master's degree in engineering, including copies of these degrees; a letter concerning Amglo's financial status; and the earlier H-2B approval notice. Amglo contends this evidence should have sufficed for the H-1B application and that the additional evidence CIS requested was therefore duplicative. Amglo also argues that because Mr. Schulz had previously worked in the same position under an H-2B nonimmigrant visa, CIS's request, in response to the later H-1B application, for a statement of who had performed the job in the past and what his educational achievements were, was unnecessary. Finally, Amglo contends that because there is no ...


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