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Regal International, Inc. v. Janet Napolitano

September 29, 2011

REGAL INTERNATIONAL, INC. PLAINTIFF,
v.
JANET NAPOLITANO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

On March 16, 2011, plaintiff Regal International, Inc. ("Regal") filed a First Amended Complaint (Dkt. No. 12 ("1st Am. Compl.")) against defendants Janet Napolitano, the Secretary of the Department of Homeland Security; Alejandro Mayorkas, the Director of the Office of U.S. Citizenship and Immigration Services; and Perry Rhew, the Chief of Administrative Appeals of the Office of U.S. Citizenship and Immigration Services (collectively "Defendants"). In the First Amended Complaint, Regal claims that the U.S. Citizenship and Immigration Services's ("USCIS" or "agency") decision to deny Regal's Form I-140 employment-based immigrant visa petition on behalf Santokh Bains ("Bains") was "arbitrary, capricious, and erroneous as a matter of law." (Id. ¶ 25.) Pending before the court are Regal's "Motion for Summary Judgment" (Dkt. Nos. 19, 20 ("Regal's Mot.")) as well as Defendants' "Cross Motion for Summary Judgment" (Dkt. No. 25 ("Def.'s Cross Mot.")).*fn1 For the reasons explained below, Regal's Motion is denied and Defendant's Cross Motion is granted.

BACKGROUND*fn2

I. The Parties

Plaintiff Regal is an import/export company that imports consumer goods from India and other parts of South Asia for distribution in the United States. (1st Am. Compl. ¶ 3.) Defendant Janet Napolitano is the Secretary of Homeland Security, a department which includes USCIS (id. ¶ 4); defendant Michael Mayorkas is the Director of USCIS (id. ¶ 5); and defendant Perry Rhew is the Chief of the Administrative Appeals Office ("AAO") of USCIS (id. ¶ 6). Bains is a citizen of India, a prospective employee of Regal, and the prospective beneficiary of Regal's immigrant visa petition. (Id. ¶ 2.)

II. Statutory and Regulatory Background The Immigration and Nationality Act ("INA") provides for the issuance of a visa to an immigrant alien seeking permanent employment as a professional worker based on a job offer from a United States employer. See 8 U.S.C. § 1153(b)(3)(A)(ii). Congress delegated to the Secretary of Homeland Security ("Secretary") the authority to determine whether a specific job opportunity qualifies under the INA to allow for the employment of an immigrant. See 8 U.S.C. § 1103(a)(1). The Secretary then sub-delegated this authority to USCIS.*fn3 See 8 C.F.R. § 2.1; DHS Delegation Order No. 0150.1 (Mar. 1, 2003).

Before an employer files a petition with USCIS for the issuance of a visa, the employer first must submit an Application for Permanent Employment Certification with the Department of Labor ("DOL"), also known as a Form ETA-750, that identifies the job opportunity and the employer's minimum job requirements. See 20 C.F.R. § 656.21 (2004).*fn4 The DOL then must certify that there are not sufficient United States "workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such . . . labor." 8 U.S.C. § 1182(a)(5)(A)(i)(I). Additionally, the DOL must certify that "the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed." § 1182(a)(5)(A)(i)(II). If both of these conditions are met, the DOL certifies the Form ETA-750.

Once the DOL certifies the Form ETA-750, the employer may file an I-140 petition with USCIS seeking to classify the alien beneficiary as an employment-based immigrant. See 8 C.F.R. § 204.5(a)-(c). The INA provides that certain allotments of visas are to be issued on a preferential basis to employment-based aliens who qualify under certain special categories. See 8 U.S.C. § 1153(b). To qualify under the third preference ("EB-3") "professional" category, the alien beneficiary must possess a baccalaureate degree and be a member of the professions. § 1153(b)(3)(A)(ii). The relevant federal regulations similarly require that such an EB-3 professional "holds at least a United States baccalaureate degree or a foreign equivalent degree" and be "a member of the professions." 8 C.F.R. § 204.5(l)(3)(ii)(C). If USCIS denies the employer's I-140 petition, the employer may appeal to the AAO. See 8 C.F.R. § 204.5(n)(2).

III. Background Facts and Procedural Posture of the Case

On April 24, 2001, Regal filed a Form ETA-750, Application for Alien Employment Certification, with the DOL. (Dkt. No. 10 ("A.R.") at 264.) Regal's application was for an economist position and the application indicated that the position's minimum education requirement was a "Bachelor's degree" with a "Major Field of Study" in "Commerce." (Id.) The DOL certified the Form ETA-750 on April 17, 2006. (Id.)

Regal then filed a Form I-140, Immigrant Petition for Alien Worker, with USCIS, seeking to classify Bains as an EB-3 professional. (Id. at 261.) On January 31, 2007, USCIA requested additional information from Regal documenting, inter alia, that Bains met Regal's minimum education requirement of a Bachelor's degree in Commerce. (Id. at 259-60.) In response, Regal submitted Bains's diploma from the University of Calcutta for a "Bachelor of Commerce (Three-year Course) with Honours." (Id. at 140.) On April 21, 2007, USCIS denied Regal's petition on the grounds that Regal failed to establish that Bains possessed a United States baccalaureate degree, or foreign equivalent, in Commerce. (Id. at 137.) USCIS noted that a "United States baccalaureate degree generally requires four years of education." (Id. (citing Matter of Shah, 17 I&N Dec. 244, 245 (1977)).) Because Bains received his Bachelor's degree after only three years of study, USCIS found that the degree was not a foreign equivalent degree, and therefore denied the petition. (Id.)

On May 4, 2007, Regal filed an appeal with the AAO, which is USCIS's Administrative Appeals Office. (Id. at 133.) As part of that appeal, Regal submitted evidence that Bains received a Master's degree in Economics from Meerut University in India. (Id.at 117-19.) Regal also provided an "Evaluation of Foreign Education and Training" from Joel B. Slocum of Education International, Inc. (Id.at 116.) That evaluation statedthat Bains's Master's degree was "the equivalent of at least a Bachelor's degree, specialized in Economics, at an accredited institution in the United States." (Id.) It further noted that "in some countries a 'Bachelor of Commerce' can be in Economics," but that degrees in Commerce "are not given in the United States." (Id.) Regal argued that the AAO should uphold Regal's appeal because Bains's foreign Master's degrees in Economics is "exactly the same field" as Commerce, the field of study that Regal specified on its Form ETA-750. (Id. at 112.)

On September 15, 2009, the AAO issued a Request for Evidence addressing some of the ambiguities it found in Regal's documentary evidence. (A.R. 96-99.) Specifically, the AAO found that Regal's ETA-750 form indicated that the minimum educational requirement for the job opportunity was a Bachelor's degree in Commerce. (Id. at 99.) The AAO also cited information from the Electronic Database for Global Education ("EDGE"), created by the American Association of Collegiate Registrars and Admissions Officers ("AACRAO"), which stated that Bains's "three-year bachelor of commerce degree represents attainment of a level of education comparable to two to three years of university study in the United States." (Id.) EDGE further stated that Bains's Master's degree in Economics was the equivalent of a U.S Bachelor's degree. (Id.) In the Request for Evidence, the AAO requested that Regal submit additional evidence of Regal's "intent concerning the actual minimum educational requirements of the position as that intent was explicitly and specifically expressed during the labor certification process." (Id.)

On November 30, 2009, Regal submitted additional evidence regarding Regal's original intent as to the actual minimum educational requirements of the job opportunity, including copies of newspaper advertisements and a posting notice prepared as part of Regal's labor certification application. (Id. at 84-93.) Regal's recruitment documentation ...


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