Palace Wine and Spirits, Inc. v. United States Citizenship and Immigration Services et al

Filing 35

MEMORANDUM OPINION AND ORDER granting 19 Motion for Summary Judgment; denying 23 Motion for Summary Judgment (Written Opinion). Signed by Judge Donovan W. Frank on 05/25/2012. (rlb)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Palace Wine and Spirits, Inc.,

Civil No. 11-402 (DWF/JJK)

Plaintiff,
v.

MEMORANDUM
OPINION AND ORDER

United States Citizenship and Immigration
Services; Alejandro Mayorkas, Director of
the United States Citizenship and
Immigration Services; Rosemary Langley
Melville, Director of California Service
Center, Untied States Citizenship and
Immigration Services; U.S. Department
of Homeland Security; Janet Napolitano,
Secretary of the Department of Homeland
Security; and Eric J. Holder, United States
Attorney General,
Defendants.
________________________________________________________________________
Rachel M. Engebretson, Esq., Binsfeld & Engebretson, P.A., counsel for Plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, United States Attorney’s Office,
counsel for Defendants.
________________________________________________________________________

INTRODUCTION
This matter is before the Court on Defendants’ Motion for Summary Judgment
(Doc. No. 19) and Plaintiff’s Motion for Summary Judgment (Doc. No. 23). For the
reasons set forth below, the Court grants Defendants’ motion and denies Plaintiff’s
motion.

BACKGROUND
Palace Wine and Spirits, Inc. (“Plaintiff”) is a liquor sales and business acquisition
company with seventeen employees and a gross annual income in 2009 of $2.78 million
and a net annual income in 2009 of $16,635. (Doc. No. 21, Admin. R. 518.) In April
2010, Plaintiff filed an I-129, Petition for Nonimmigrant Worker, seeking to temporarily
employ Ms. Olena Protashchuk as a part-time, entry-level “Operations and Finance
Analyst” for a period of three years at an hourly wage of $22. 1 (Id. at 442-46, 515-28.)
After providing Plaintiff multiple opportunities to supplement the record (id. at 118-21,
148-58), on August 5, 2011, United States Citizenship and Immigration Services
(“USCIS”) recommended denial of the visa application, finding that the position of
“Financial and Operations Analyst” did not qualify as a specialty occupation, and
certified the case to its Administrative Appeals Office for review (id. at 28-36). The
Administrative Appeals Office of USCIS issued a final decision denying the petition on
November 1, 2011. (Id. at 1-14.)
Plaintiff initiated this action seeking a declaration from this Court that USCIS’s

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Specifically, Plaintiff sought a specialty occupation visa to hire Protashchuk as an
“Operations and Finance Analyst,” to “research, develop, and interpret information that
assists management with policy formulation, and other managerial functions, including
evaluation of accounting and operations.” (Admin. R. 443.) Plaintiff identified the
minimum requirement for the position as “a Bachelor’s degree in Management or in
Business Administration with an emphasis in Management.” (Id. at 444). Plaintiff
further described the position as requiring the “use [of] analytical techniques, and
provid[ing] analysis and information to the President and CFO about business acquisition
interests. The Operations and Financial Analyst will oversee and manage projects as
assigned by the Chief Financial Manager.” (Id. at 443.)

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decision to deny Plaintiff’s I-129 Petition constituted an arbitrary and capricious abuse of
discretion. (Compl. at 10.) The parties have now filed cross-motions for summary
judgment.
DISCUSSION
I.

Summary Judgment Standard
Summary judgment is proper if there are no disputed issues of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at
747. The nonmoving party must demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th
Cir. 1995). A party opposing a properly supported motion for summary judgment “may
not rest upon the mere allegations or denials of his pleading, but must set forth specific

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facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986).
II.

Summary Judgment Motions
Both motions for summary judgment seek a determination by the Court with

respect to Plaintiff’s administrative appeal of USCIS’s decision to deny Protashchuk an
H-1B visa as the beneficiary of Plaintiff’s I-129 Petition. Plaintiff asserts that it is
entitled to a reversal of the administrative decision because USCIS abused its discretion
in rendering its decision to deny the H-1B visa and in finding that the Operations and
Finance Analyst position is not a “specialty occupation.” Defendants contend that, in
light of the great deference owed to its decision, USCIS did not abuse its discretion in
finding that Plaintiff failed to demonstrate that the position in question qualifies as a
specialty occupation.
A.

Abuse of Discretion Standard

A reviewing court must set aside agency action denying a petition for an H1-B
visa when the decision is found to be “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency abuses its
discretion if its decision is unsupported by substantial evidence or is based upon an
improper understanding of the law. Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1162
(D. Minn. 1999). An agency abuses its discretion “by making decisions without rational
explanation, departing inexplicably from established policies, or discriminating
invidiously against a particular race or group.” Rodriguez–Rivera v. INS, 993 F.2d 169,

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170 (8th Cir. 1993). Thus, a reviewing court must determine whether, based on the
record as a whole, the agency’s decision “was supported by reasonable, substantial, and
probative evidence,” and reversal is warranted only if the appealing party “shows that the
evidence was so compelling that no reasonable factfinder” could find against it.
Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir. 1999); see Perinpanathan v. INS,
310 F.3d 594, 597 (8th Cir. 2002). “The scope of review under the ‘arbitrary and
capricious’ standard is narrow and a court is not to substitute its judgment for that of the
agency.” Alliance Home Health Care and Nursing Servs. LLC v. Melville, Civ.
No. 11-2447, 2012 WL 950021, at *3 (D. Minn. Mar. 20, 2012) (quoting Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).
B.

No Abuse of Discretion

The only dispute between the parties for purposes of the motions before the Court
is whether or not the position at issue constitutes a “specialty occupation.” No genuine
issues of material fact exist with respect to the asserted claims.
An employer may file an H–1B petition for a nonimmigrant to temporarily
perform services in a specialty occupation in the United States. 8 U.S.C. §§ 1101,
1184(c). Pursuant to 8 U.S.C. § 1184(i), a “specialty occupation” requires a “theoretical
and practical application of a body of highly specialized knowledge,” and “attainment of
a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum
for entry into the occupation in the United States.” 8 U.S.C. § 1184(i); see also 8 C.F.R.

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§ 214.2(h)(4)(i)(A)(1). A position must meet one of the following criteria in order to
qualify as a specialty occupation:
1) A baccalaureate or higher degree or its equivalent is normally the
minimum requirement for entry into the particular position;
2) The degree requirement is common to the industry in parallel positions
among similar organizations, or, in the alternative, an employer may show
that its particular position is so complex or unique that it can be performed
only by an individual with a degree;
3) The employer normally requires a degree or its equivalent for the
position; or
4) The nature of the specific duties are so specialized and complex that
knowledge required to perform the duties is usually associated with the
attainment of a baccalaureate or higher degree.
8 C.F.R. § 214.2(h)(4)(iii)(A). The petitioning employer bears the burden of establishing
that the alien worker is entitled to the visa by demonstrating that: (1) the position sought
qualifies as a specialty occupation; and (2) the alien worker is qualified to perform
services in the occupation. Alliance Home Health Care, 2012 WL 950021, at *4 (citing
Shanti, Inc., 36 F. Supp. 2d at 1151).
Here, there is no dispute that Protashchuk is qualified to perform the services of an
Operations and Finance Analyst. Protashchuk’s education and experience are not
contested. Rather, the disagreement centers around USCIS’s determination that the
Operations and Finance Analyst position at issue is not a “specialty occupation.” Having
considered the record, the Court finds that USCIS did not abuse its discretion in
determining that the Operations and Finance Analyst position is not a specialty
occupation.

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USCIS found that “the proffered position’s duties most closely related to the
[Occupational Outlook] Handbook’s description of operations research analysts.”
(Admin. R. 6.) USCIS concluded, however, that the record failed to “establish that any
related duties to be performed by the beneficiary would require the practical and
theoretical application of a body of highly specialized knowledge attained by at least a
bachelor’s degree, or the equivalent, in management, or business administration with an
emphasis in management as required,” and consequently denied the petition. 2 (Id.)
USCIS noted that the Occupational Outlook Handbook (the “Handbook”) “indicates that
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In concluding that “[t]he requirement of a bachelor’s degree in management or
business administration with an emphasis in management is inadequate to establish that a
position qualifies as a specialty occupation,” the USCIS applied the following standard:
A petitioner must demonstrate that the proffered position requires a precise
and specific course of study that relates directly and closely to the position
in question. Since there must be a close correlation between the required
specialized studies and the position, the requirement of a degree with a
generalized title, such as management or business administration with an
emphasis in management, without further specification, does not establish
the position as a specialty occupation. See Matter of Michael Hertz
Associates, 19 I&N Dec. 558 (Comm’r 1988). To prove that a job requires
the theoretical and practical application of a body of highly specialized
knowledge as required by section 214(i)(1) of the Act, a petitioner must
establish that the position requires the attainment of a bachelor’s or higher
degree in a specialized field of study or its equivalent . . . . USCIS
interprets the degree requirement at 8 C.F.R. § 214.2(h)(4)(iii)(A) to require
a degree in a specific specialty that is directly related to the proposed
position. USCIS has consistently stated that, although a general-purpose
bachelor’s degree, such as a degree in business administration, may be a
legitimate prerequisite for a particular position, requiring such a degree,
without more, will not justify a finding that a particular position qualifies
for classification as a specialty occupation. See Royal Siam Corp. v.
Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).
(Admin. R. 10-11 n.3).

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operations research analysts do not constitute an occupational group that categorically
requires a specialty-occupation level of education,” and further remarked that “while the
Handbook reports that a bachelor’s degree is usually the minimum educational
requirement for many operations research analyst jobs, a bachelor’s degree alone is not
sufficient for all positions in the occupational category to be recognized as specialty
occupations.” (Id. at 8.)
Not only did USCIS conclude that Plaintiff failed to demonstrate that the
Operations and Finance Analyst position in question “involved the theoretical and
practical application of a highly specialized body of knowledge,” it also concluded that
Plaintiff failed to establish that the position satisfies any of the criteria of 8 C.F.R.
§ 214.2(h)(4)(iii)(A). (Id. at 9.) Considering the Handbook, and other relevant factors,
USCIS found that Plaintiff lacked substantive evidence of an industry-wide requirement
of at least a bachelor’s degree in a specific specialty for similar positions. (See id. at
10-11); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(1). USCIS further concluded that “the
record is devoid of sufficiently detailed information to distinguish the proffered position
as unique from or more complex than similar positions that can be performed by persons
without at least a bachelor’s degree in a specific specialty or its equivalent.” (Admin.
R. 11); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). Also, noting the absence in the record
of Plaintiff’s prior hiring history for the position, USCIS determined that Plaintiff had not
demonstrated that it normally requires at least a bachelor’s degree in a specific specialty
for the position so as to satisfy 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). (Admin. R. 12.)

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Finally, USCIS cited Plaintiff’s failure to present “any evidence to show that the skills
utilized in its daily operations are so specialized and complex that the knowledge
required to perform the duties of the proffered position is usually associated with the
attainment of a baccalaureate or higher degree, or its equivalent, in a specific specialty.”
(Id. at 12); see also 8 C.F.R. § 214.2(h)(4)(iii)(A)(4).
The evidence in the record does not compel findings contrary to those made by
USCIS. Noting that the Court may not substitute its judgment for that of USCIS, the
Court concludes that USCIS’s determination that the Operations and Finance Analyst
position is not a “specialty occupation” is reasonably supported by the evidence.
Considering the record as a whole, USCIS’s decision to deny the petition was neither
arbitrary nor capricious. Defendants are thus entitled to judgment, and Plaintiff is not
entitled to judgment on its claim for declaratory relief. Consequently, Defendants’
motion for summary judgment is properly granted, and Plaintiff’s motion for summary
judgment is therefore denied.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendants’ Motion for Summary Judgment (Doc. No. [19]) is

GRANTED.
2.

Plaintiff’s Motion for Summary Judgment (Doc. No. [23]) is DENIED.

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3.

USCIS’s decision to deny Ms. Olena Protashchuk an H-1B visa as the

beneficiary of Plaintiff’s I-129 Petition is AFFIRMED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 25, 2012

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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