Bustos v. Napolitano et al

Filing 30

MEMORANDUM DECISION denying 19 Plaintiff's Motion for Summary Judgment ; granting 25 Defendant's Motion for Summary Judgment.The hearing set for March 19, 2013, is STRICKEN. Signed by Judge Ted Stewart on 2/28/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LUCIANA BUSTOS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT AND DENYING
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT

vs.

JANET NAPOLITANO, Secretary of
Department of Homeland Security;
ALEJANDRO MAYORKAS, Director of
United States Citizenship and Immigration
Services; GERARD HEINAUER, Director,
Nebraska Service Center; JEANNE KENT,
Field Office Director of the Salt Lake Field
Office of United States Citizenship and
Immigration Services,

Case No. 2:12-CV-515 TS

Defendants.

This matter is before the Court on cross motions for summary judgment. For the reasons
discussed below, the Court will grant Defendants’ Motion and deny Plaintiff’s Motion.

1

I. BACKGROUND
Plaintiff Luciana Bustos is a native and citizen of Argentina. She unlawfully entered the
United States on February 17, 1990.
On April 30, 2001, The Herb Shop Connection submitted, on Plaintiff’s behalf, an
Application for Alien Employment Certification (“ETA 750” or “labor certification application”)
with the Utah Department of Workforce Services (“DWS”).
In September 2003, DWS responded to the application by sending a “REMAND OF
LABOR CERTIFICATION APPLICATION” (“Remand Notice”). The Remand Notice stated
that DWS was “in receipt of your application for alien labor certification” but that “some of the
entries used to complete it are unacceptable for purposes of creating a job order to be used in
connection with a labor certification request.”1 As a result, the application was returned so that
four items could be revised or completed.
The Remand Notice advised that the “revised forms and the information requested” must
be returned within 45 days, or November 14, 2003. The letter warned: “If I do not hear from you
or receive the revised forms and information, I will close this case. If the employer wishes to refile, a new priority date will be established.”2

1

Docket No. 9, Ex. B.

2

Id.
2

The information sought by DWS was not provided as requested. On April 9, 2009, DWS
sent a letter to Plaintiff’s former attorney confirming that the labor certification application was
“closed per request” on November 28, 2003.3
In November 2006, an Immigrant Petition for Alien Worker was filed on Plaintiff’s
behalf by Cherry Lane Keepsakes. The United States Citizenship and Immigration Services
(“USCIS”) approved the petition on October 22, 2007. The approval reflects a priority date of
September 29, 2004.
Plaintiff then filed an application for adjustment of status. On August 26, 2009, USCIS
denied Plaintiff’s adjustment application. USCIS determined that Plaintiff failed to establish that
she filed a qualifying application or petition on or before April 30, 2001. Therefore, she did not
meet the requirements of 8 U.S.C. § 1255(i).
Plaintiff filed an appeal, which USCIS construed as a motion to reopen. USCIS denied
the motion to reopen on February 10, 2010. USCIS stated that Plaintiff’s labor certification
“application was returned by State of Utah Department of Workforce Services” and was “not
properly filed and later withdrawn.”4 Therefore, “[t]he Department of Labor did not receive a
properly filed application until September 29, 2004, which clearly indicates that your approved
visa petition was not filed prior to April 30, 2001 for section 245(i) purposes.”5 Plaintiff brought
this action on May 30, 2012.

3

Docket No. 1, Ex. B.

4

Docket No. 25, Ex. A.

5

Id.
3

II. STANDARD OF REVIEW
Plaintiff brings her Complaint pursuant to the Administrative Procedures Act (the
“APA”). Under the APA, the Court is directed to “decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or applicability of the terms
of an agency action.”6 The Court must “set aside agency action, findings, and conclusions found
to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”7
“An agency acted arbitrarily and capriciously if it relied on factors deemed irrelevant by
Congress, failed to consider important aspects of the problem, presented an implausible
explanation or one contrary to the evidence.”8
The arbitrary and capricious standard . . . is a narrow standard of review. This
court will determine whether the agency considered all the relevant factors and
whether there was clear error of judgment, but may not substitute its own
judgment for the agency’s. The agency must establish a relationship between its
findings and its conclusions.9
III. DISCUSSION
Plaintiff seeks an adjustment of status under 8 U.S.C. § 1255(i)(1). To be eligible for
adjustment of stats under this provision, Plaintiff must show that she was the beneficiary of either
a petition for classification or an application for a labor certification, filed on or before April 30,

6

5 U.S.C. § 706.

7

Id.

8

Bd. of Cnty. Comm’rs of Cnty. of Adams v. Issac, 18 F.3d 1492, 1497 (10th Cir. 1994).

9

Id. at 1496-97.
4

2001.10 Under the implementing regulations, the visa petition or labor certification must be both
“properly filed” and “approvable when filed.”11
Plaintiff contends that the labor certification application filed on her behalf was both
properly filed and approvable when filed. Defendants disagree with both arguments. Because
the Court finds that the labor certification application was not properly filed, the Court need not
reach the issue of whether it was approvable when filed. Thus, the only issue the Court will
address is whether the labor certification application was properly filed.
A labor certification is properly filed if “the application was properly filed and accepted
pursuant to the regulations of the Secretary of Labor, 20 C.F.R. § 656.21.”12 20 C.F.R. § 656.21
details the requirements for an employer applying for a labor certification. The regulations
require that the labor certification include various information, including a statement of the
qualifications of the alien, a description of the job, and the wages to be paid.13 Additionally, the
regulations state that the job requirements must not be unduly restrictive, such as including a
requirement for a language other than English.14
Section 656.21 states that when an application is received “[t]he local office shall date
stamp the application . . . and shall make sure that the Application for Alien Employment

10

8 U.S.C. § 1255(i)(1)(B).

11

8 C.F.R. § 245.10(a)(1)(i).

12

Id. § 245.10(a)(2)(ii).

13

20 C.F.R. § 656.21(a), (b) (2001).

14

Id. § 656.21(b)(2)(i)(C).
5

Certification form is complete. If it is not complete the local office shall return it to the employer
and shall advise the employer to refile it when it is completed.”15 If the application is
“acceptable,” the local office, in cooperation with the employer, will attempt to recruit workers
for the position.16 If the employer’s job offer is “unacceptable,” “the local office, as appropriate,
either shall contact the employer to try to remedy the defect or shall return the Application for
Alien Employment Certification form to the employer with instructions on how to remedy the
defect.”17 The regulations further require the employer to
supply the local office with required documentation or requested information in a
timely manner. If documentation or requested information is not received within
45 calendar days of the date of the request the local office shall return the
Application for Alien Employment Certification form, and any supporting
documents submitted by the employer and/or the alien, to the employer to be filed
as a new application.18
As set forth above, The Herb Shop Connection submitted, on Plaintiff’s behalf, an
Application for Alien Employment Certification with the Utah Department of Workforce
Services. DWS later returned that application so that four items could be revised or completed.
A completed/revised application was never provided to DWS. Therefore, Plaintiff’s Application
for Alien Employment Certification was closed. Based upon this, USCIS determined that
Plaintiff’s application was not properly filed. The issue presented here is whether that

15

Id. § 656.21(d).

16

Id. § 656.21(f)(1).

17

Id. § 656.21(f)(2).

18

Id. § 656.21(h).
6

determination was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.
Plaintiff argues that her labor certification was properly filed. In support, Plaintiff relies
on language published in the Federal Register. That language provides:
To be considered properly filed, for purposes of grandfathering under Section
245(i) of the Act (8 U.S.C. 1255(i)), a labor certification application must be filed
on or before April 30, 2001, according to the regulations established by the
Department of Labor, 20 CFR 656.21. The sponsoring employer must properly
complete and sign ETA Form 750, Parts A and B. The Labor Department
considers an application for labor certification that is filed and accepted at a State
Employment Security Agency (SESA) to be properly filed.19
The Court finds that this language does not answer the question before it. This language
merely restates the language from the regulations, discussed above. Therefore, additional
analysis is required before the Court can determine whether the labor certification application
was properly filed.
Plaintiff also relies on an Interoffice Memorandum prepared by William R. Yates,
Associate Director for Operations of USCIS (hereinafter “Yates Memo”).20 The Yates Memo
provides:
Absent evidence of fraud, when a qualification application for labor certification
(Form ETA-750) is properly filed and accepted by the United States Department
of Labor in accordance with 20 CFR 656.21, USCIS will consider the
requirements of 8 CFR 245.10 related to ‘properly filed’ and ‘approvable when
filed’ to have been met for grandfathering purposes under section 245(i).21

19

66 Fed. Reg. 16383, 16385 (Mar. 26, 2001); see also Docket No. 10, Ex. B.

20

Id., Ex. C.

21

Id. at 4.
7

Again, this language merely states the requirement that the application be properly filed
and accepted in accordance with the regulations, but does not provide guidance on when an
application is properly filed.
Plaintiff argues that the evidence in the record establishes that her application was filed
and accepted. Plaintiff relies heavily on the Remand Notice in support of her argument. Plaintiff
argues that the Remand Notice specifically states that it concerns a “Labor Certification” and
establishes a priority date of April 30, 2001.22 Plaintiff also argues that the labor certification
application had been accepted because the Remand Notice gave the employer the option of
making changes to the original Form ETA 750. Additionally, Plaintiff points to language from
the Remand Notice stating that DWS was “in receipt of your application for alien labor
certification.”23
While this language may provide some support for Plaintiff’s position, Plaintiff ignores
other critical language from the Remand Notice. While DWS stated it was in receipt of the
application for labor certification, that agency found “that some of the entries used to complete it
[were] unacceptable for the purpose of creating a job order to be used in connection with a labor
certification request.”24 As a result, the application was returned so that certain items could be
revised or completed.

22

Docket No. 9, Ex. B.

23

Id.

24

Id.
8

The Remand Notice further advised that the “revised forms and the information
requested” must be returned within 45 days, or November 14, 2003. This time limitation is
consistent with that found in the regulations, discussed above.25 The Remand Notice warned: “If
I do not hear from you or receive the revised forms and information, I will close this case. If the
employer wishes to re-file, a new priority date will be established.”26 As stated, this information
was not provided and the case was closed.
At most, Plaintiff has shown that her application for labor certification was filed, but she
has not shown that her application was filed and accepted. Plaintiff’s argument would equate
receipt by DWS with filing and acceptance, but the regulations require more than mere filing
before an application is considered “properly filed.” A labor certification application must be
both “properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 C.F.R.
§ 656.21.”27
As set forth above, § 656.21 requires that once an application is received, the local office
must determine whether it is complete. “If it is not complete the local office shall return it to the
employer and shall advise the employer to refile it when it is completed.”28 Further, it is only
25

See 20 C.F.R. § 656.21(h) (“The employer shall supply the local office with required
documentation or requested information in a timely manner. If documentation or requested
information is not received within 45 calendar days of the date of the request the local office
shall return the Application for Alien Employment Certification form, and any supporting
documents submitted by the employer and/or the alien, to the employer to be filed as a new
application.”).
26

Docket No. 9, Ex. B.

27

8 C.F.R. § 245.10(a)(2)(ii).

28

20 C.F.R. § 656.21(d).
9

when the application is deemed “acceptable,” that the local office, in cooperation with the
employer, will attempt to recruit workers for the position.29 If the employer’s job offer is
“unacceptable,” “the local office, as appropriate, either shall contact the employer to try to
remedy the defect or shall return the Application for Alien Employment Certification form to the
employer with instructions on how to remedy the defect.”30
In this case, the local office determined that Plaintiff’s application was incomplete and
unacceptable. Therefore, DWS sent the Remand Notice. The Remand Notice required the
revisions and information within 45 days and, if not received, the case would be closed. This is
precisely what happened. While the labor certification application may have been filed, there is
no evidence that it was ever accepted by DWS. Therefore, the Court cannot find the decision of
USCIS to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.
In addition to the evidence set forth above, Plaintiff relies on an affidavit and two
declarations that were not before the USCIS.31 The Affidavit of Robert Scott, the owner of The
Herb Shop Connection, states “[t]o the best of my knowledge [the labor certification] application
was properly filed and accepted by the US Department of Labor through its Utah counterpart, the
Utah Department of Workforce Service before the designated deadline.”32 Mr. Scott does not
29

Id. § 656.21(f)(1).

30

Id. § 656.21(f)(2).

31

Defendant argues that the Court’s review should be limited to the record before the
agency. However, even considering the affidavit and declarations, Plaintiff’s claim must fail.
32

Docket No. 1, Ex. F, ¶ 4.
10

state how he reaches this conclusion and, even if he did, it would not alter the Court’s decision as
it is not Mr. Scott’s role to determine whether an application is properly filed and accepted.
Next, Plaintiff has provided the Declaration of David Littlefield, an immigration attorney
and law professor. Mr. Littlefield has regularly filed applications for labor certification and has
routinely received letters like the Remand Notice. Mr. Littlefield states: “In my experience, the
Utah Department of Workforce Services’ requests for more information were never construed by
the state agency as a rejection of the initial filing of the application for Labor Certification and
were part of the ongoing process of obtaining Labor Certification.”33 While this information is
helpful to the Court, it fails to address the issue here, where the labor certification application
was closed after the request for information was ignored.
Finally, in Plaintiff’s reply brief, Plaintiff has attached the Declaration of Erlinda
Anderson. Ms. Anderson was employed by the Utah Department of Workforce Services as the
Alien Labor Certification Program Specialist during the relevant time, and was the author of the
Remand Notice. Ms. Anderson states that remand notices were common and “were never
construed by the agency as a rejection of the initial filing of the application for Labor
Certification.”34 Ms. Anderson goes on to state that the labor certification application filed by
The Herb Shop Connection “was properly filed, was to be accepted and processed by our agency,
and was meritorious in fact.”35 Ms. Anderson further states that the Remand Notice was not

33

Docket No. 11, ¶ 7.

34

Docket No. 26, Ex. A, ¶ 4.

35

Id. ¶ 7.
11

intended to be a rejection of the application, but only “was a request for updated information on
an application that had been properly filed, accepted, and was deemed by our agency to be
meritorious in fact.”36
Though Ms. Anderson’s declaration makes this a much closer question, the Court still
cannot find that the determination of USCIS was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. Ms. Anderson’s declaration makes no mention of the fact
that the Remand Notice found the application to be “unacceptable.” Further, Ms. Anderson does
not acknowledge that the information requested by DWS was never provided and that the case
was eventually closed.
In sum, USCIS was faced with a letter from DWS finding that the application for labor
certification was unacceptable and requesting further information. After that information was not
filed in the time allotted, the case was closed. Based on this information, the Court cannot find
fault with the conclusion of USCIS that Plaintiff was not the beneficiary of a properly filed labor
certification application.
IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion for Summary Judgment (Docket No. 25) is
GRANTED. It is further
ORDERED that Plaintiff’s Motion for Summary Judgment (Docket No. 19) is DENIED.
The hearing set for March 19, 2013, is STRICKEN.

36

Id. ¶¶ 8-9.
12

The Clerk of the Court is directed to enter judgment in favor Defendants and against
Plaintiff and close this case.
DATED February 28, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

13