United States District Court, N.D. Illinois, Eastern Division
QUALITY TRUCK & TRAILER REPAIR, INC., and ANDRZEJ CZUPTA, Plaintiffs,
JEH JOHNSON, Secretary of the Department of Homeland Security, ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration Services; ERIC H. HOLDER, JR., Attorney General of the United States. Defendants.
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiff, Quality Truck & Trailer Repair, Inc. ("Quality Truck") filed a Complaint seeking review of the Administrative Appeals Office ("AAO") denial of its Form I-140 visa petition to classify its employee-beneficiary Andrzej Czupta for permanent employment-based status. Defendants filed a motion for summary judgment  and Quality Truck submitted a cross-motion for summary judgment in response. For the reasons stated herein, this Court grants defendants' motion for summary judgment and denies Quality Truck's motion.
The material facts are not in dispute. Plaintiff, Quality Truck, is a truck and trailer repair business. On April 30, 2001, Quality Truck filed an application for Alien Employment Certification with the Department of Labor on behalf of Andrzej Czupta, as a mechanic specialist. (Dkt. #23, Certified Administrative Record ("CAR") at 557-60). April 30, 2001, is Czupta's priority date with a proffered wage of $47, 424 annually. Id. The Labor Department reviewed the application, certifying the requirements of the job and that employment of such aliens will not adversely affect the wages and working conditions of similarly employed workers in the U.S. (Dkt. #21, Def.'s Opening Br. at 4). The Labor Department approved Quality Truck's application for Alien Employment Certification on November 28, 2006. (CAR at 561).
On January 7, 2008, Quality Truck filed a Form I-140 visa petition with the United States Citizenship and Immigration Services ("USCIS") requesting classification of Czupta as an immigrant seeking employment-based immigration status. Id. at 554. On July 22, 2009, USCIS denied the petition after finding Quality Truck had not made a bona fide job offer. Id. at 549-51. On August 21, 2009, Quality Truck moved USCIS to reopen and reconsider the decision. USCIS granted Quality Truck's motion to reopen and reconsider on September 28, 2009. Id. at 528. After reviewing the materials Quality Truck submitted in support of its motion, USCIS issued a decision that same day confirming its decision of July 22, 2009.
On October 27, 2009, Quality Truck appealed USCIS' denial of its petition in the Administrative Appeals Office. Id. at 522. On December 26, 2012, the AAO issued a Notice of Intent to Deny and Request for Evidence. Id. at 487. Quality Truck submitted additional information in support of its petition. Id. at 112-486. On May 29, 2009, the AAO dismissed Quality Truck's appeal of USCIS' decision and affirmed the denial, invalidating the labor certification on which the petition was based. Id. at 97.
September 20, 2013, the AAO issued a Notice of Reopening on Service Motion and Intent to Deny, reopening the petition application on its own motion for de novo review. The AAO stated that it based its intent to deny on the following: (1) failure to show the job offer is bona fide; (2) failure to show the beneficiary has the requisite training and experience to show that he is qualified for the position as certified in the Labor Certification application submitted to the Labor Department; and (3) the failure to show that Quality Truck has the ability to pay the wage proffered to beneficiary in the Labor Certification application. Id. at 93-94. The AAO also requested further evidence from Quality Truck to support the petition, including a list of each beneficiary for whom Quality Truck has filed a Form I-140 immigrant worker petition, the priority date and receipt number for each beneficiary listed; exact dates of the beneficiaries' employment, indication of whether each listed beneficiaries' petition is active or inactive with explanation of any inactive petitions, the proffered wage for each listed beneficiary, the actual wage paid to each from April 30, 2001, to the present, and W-2 or 1099 Forms issued to each beneficiary from April 30, 2001, to the present. Id. at 94-95. Quality Truck responded to the request on October 18, 2013.
USCIS records indicate that Quality Truck has filed immigrant worker visa petitions on behalf of eight beneficiaries. Aside from Czupta, the other seven beneficiaries are JG, PJ, JS, AIK, RJ, AP, and FP. Quality Truck did not provide the W-2s for any of these other beneficiaries. Id. at 41-42. The evidence presented by Quality Truck in support of its petition establishes that between 2001 and 2012, Quality Truck paid Czupta anywhere between $2, 798.60 and $21, 174 below the proffered wage at issue here of $47, 424. Id. at 43-44. In 2007, according to Quality Truck's records, it paid Czupta $41, 600 ($5, 824 below the proffered wage of $47, 424). In 2008, according to Quality Truck's records, it paid Czupta $41, 600 ($5, 824 below the proffered wage of $47, 424). In 2009, according to Quality Truck's records, it paid Czupta $43, 648.40 ($3, 772.60 below the proffered wage of $47, 424). In 2010, according to Quality Truck's records, it paid Czupta $44, 625.40 ($2, 798.60 below the proffered wage of $47, 424). In 2011, according to Quality Truck's records, it paid Czupta $44, 586.10 ($2, 837.90 below the proffered wage of $47, 424). Quality Truck submitted tax returns to USCIS demonstrating its net income for the years 2001-2011. For each of the years 2007-2011 its net income was $2, 352; -$5, 269; -$130, 167; -$11, 588; and -$8, 513, respectively. Quality Truck's records also show that its net current assets for each of the years 2007, 2010-2011, were $754; -$13, 794; -$18, 589. Each of these figures is less than $47, 424.
Quality Truck's submissions to USCIS list a technical school in Poland, "Group of Trade Schools of Zakopane" to support Czupta's training requirements, but on the ETA 750 Form submitted to the Department of Labor this school is not listed as an entity where Czupta received training. Quality Truck's submissions also show different dates on which Czupta began employment with Quality Truck: the Form G-325A biographic information signed by Czupta under penalty of perjury on October 9, 2007, states that Czupta began working for Quality Truck in February 1998. Id. at 10, 49. The ETA 750 submitted to the Department of Labor states that Czupta began working for Quality Truck in 2001. Id. at 50, 560. One of the documents that Quality Truck submitted to USCIS was a work certificate with a stamp from Mechanika Pojazdowa, but the work certificate lacks a title for the signatory, Jan Domagala, and it fails to list Czupta's duties while he worked at Mechanika Pojazdowa. A letter submitted in support also does not list Czupta's duties. Id. at 542.
On November 22, 2013, the AAO dismissed Quality Truck's appeal and affirmed the denial of the petition. The AAO based its decision on Quality Truck's failure to show the job offer is bona fide, the failure to show that it has the ability to pay the wage proffered to Czupta in the Labor Certification Application, and the failure to show that Czupta has the requisite training and employment experience to qualify for the position as certified in the Department of Labor certification application. Id. at 48-50.
While the motions before the Court are styled as motions for summary judgment, the Court is really asked to review the final administrative decision of the AAO under the Administrative Procedure Act ("APA"). A court reviewing an administrative agency's decision 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(2)(A); Cheeku, Inc. v. Napolitano , 13-CV-1600, 2014 WL 321699 at 2 (N.D. Ill. Jan. 28, 2014); see also Abraham Lincoln Memorial Hosp. v. Sebelius , 698 F.3d 536, 547 (7th Cir. 2012). "Review under the APA is deferential and a court must not substitute its judgment for that of the agency.'" Taco Especial v. Napolitano , 696 F.Supp.2d 873, 877 (E.D. Mich. 2010) (quoting Motor Vehicle Manufacturer's Association v. State Farm Mutual Auto Insurance Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The Court will affirm an agency decision that rests on several independent grounds if any of those grounds validly supports the result. Carnegie Natural Gas Co. v. FERC , 968 F.2d 1291, 1294 (D.C. Cir. 1992); see generally NLRB v. Wyman-Gordon Co. , 394 U.S. 759, 767 n.6 (1969) (plurality opinion).
The process of gaining permanent employment for immigrant aliens begins with the Application for Alien Employment ETA-750 Form submitted to the Department of Labor for certification. The application must state the actual minimum requirements of the job opportunity without listing unduly restrictive prerequisites for the job, demonstrate the job opportunity has been and is "clearly open" to any qualified U.S. worker. See 20 C.F.R. § 656.10(c)(8); see also 20 C.F.R. § 656.17. The Department of Labor must certify: (1) there are no qualified, able and willing U.S. workers available to fill the employer's job opportunity, (2) the requirements of the job, including required training and experience, and (3) that the employment of such aliens will not adversely affect the wages and working conditions of similarly employed workers in the United States. 8 U.S.C. § 1182(a)(5)(A)(i)(I). Once an employer obtains approval of a Form ETA-750, it can petition USCIS to classify a specific alien beneficiary as an employment-based immigrant using a Form I-140. See 8 C.F.R. § 204.5(c). The employer must show that the prospective employee meets the minimum job requirements specified in the Form ETA-750 and that the employer has the ability to pay the wage specified in that form. See 8 C.F.R. § 204.5(g); see 8 C.F.R. § 204.5 (1)(3)(ii)(B). If ...