Rizvi v. Dep't of Homeland Sec.

37 F.Supp.3d 870

Syed RIZVI, et al., Plaintiffs,

v.DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. H–12–3362.

United States District Court, S.D. Texas, Houston Division.

Signed Aug. 4, 2014

Defendants' motion granted. Clara Delgado Rossell, Bruce A. Coane, Coane & Associates, Houston, TX, for Plaintiffs.

Adam Laurence Goldman, Department of Justice, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

In this nation of immigrants, the United States limits the number of new immigrants it will admit and allow to remain as permanent residents. When a prospective employer petitions the United States for a visa on behalf of an alien on the basis that the alien has valuable skills that the employer needs, the United States requires proof that the alien is qualified for the work by training and experience and that the prospective employer is able to pay the alien. The plaintiffs are Advanced Medical Automation Systems, Inc. (“AMAS”), the visa petitioner; Syed Rizvi, the visa beneficiary; and two of Syed Rizvi's family members who filed I–485 applications to adjust their residency status. They sued the United States Citizenship and Immigration Services (“USCIS”) after it rejected AMAS's I–140 visa petition and denied the I–485 applications. The plaintiffs challenged the government's grounds for concluding that the prospective employer had not shown an ability to pay the proffered wage and that the applicant had failed to show his qualifications and experience for the proffered position. The plaintiffs asserted claims for wrongful denial of the I–140 petition and I–485 applications under the Administrative Procedure Act, 5 U.S.C. § 706, the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201.

In previous rulings, this court granted the government's motion to dismiss the challenges to the denial of the I–485 applications for lack of subject-matter jurisdiction, granted the motion to dismiss the individual plaintiffs' challenges to the denial of the I–140 petitions for lack of standing, and granted the motion to dismiss the claims asserted against the Attorney General. ¹ The pending motion asks this court to dismiss AMAS's challenge to the denial of the I–140 petition. The question is whether the USCIS abused its discretion when it denied AMAS's petition. The parties have cross-moved for summary judgment.

Based on the motions, responses, and replies; the administrative record; oral argument by counsel; and the governing law, the court grants the government's motion for summary judgment and denies AMAS's motion. This ruling resolves the remaining issue. Final judgment is issued under separate order.

The reasons are explained in detail below.

I. BackgroundA. The Visa–Application Statutory Framework

The Immigration and Naturalization Act (“INA”) regulates immigration by establishing procedures for the government to grant entry and permanent residency status to aliens meeting certain statutory criteria. See 8 U.S.C. § 1154 (procedures for granting immigrant status); 8 U.S.C. § 1255 (procedures for granting permanent resident status). The Secretary of Homeland Security and the USCIS administer the INA. 8 U.S.C. § 1103(a)(1); 8 C.F.R. § 2.1.

An alien may obtain an employment visa and a change of immigration status if he or she meets certain employment qualifications, including showing a permanent job offer as a professional worker. See 8 U.S.C. § 1153(b). The INA limits the number of visa petitions that the USCIS may approve each year for aliens seeking entry and change in status as a professional worker. 8 U.S.C. § 1153(b)(3)(A). Professionals are “[q]ualified immigrants who hold baccalaureate degrees and who are members of the professions.” 8 U.S.C. § 1153(b)(3)(A)(ii). The “professions” include, but are not limited to, “architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.” 8 U.S.C. § 1101(a)(32).

The process for a professional-worker visa proceeds in three steps. First, the government certifies that a prospective employer needs a worker with certain qualifications and that it cannot fill the need with a United States worker. Second, the prospective employer files an I–140 petition for an employment-based visa, with documents showing that the noncitizen worker meets the education, training, and experience requirements that the government had certified and that it can pay the proffered wage that the government certified from a specified date. Third, if the USCIS approves the I–140 petition, the alien worker files an I–485 Application to Register Permanent Residence or Adjust Status to become a lawful permanent resident. At that time, certain members of the alien worker's family may also apply to become lawful permanent residents based on the alien worker's approved I–140 petition.

In the first step, the Department of Labor (“DOL”) certifies to the Secretary of State and the Attorney General that:

(I) there are not sufficient workers who are able, willing, qualified ..., and available at the time of the application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. § 1182(a)(5)(A)(i)(I)-(II). The alien's “prospective employer in the United States [must] petition, on the alien's behalf, for labor certification” with the DOL. Masih v. Mukasey, 536 F.3d 370, 373 & n. 7 (5th Cir.2008) (citing 8 U.S.C. § 1153(b)(3)(C) (“Labor certification required [.] An immigrant visa may not be issued [to professionals] until the consular office is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 1182(a)(5)(A) of this title.”)). To obtain the certification, the employer files Form ETA–750, which identifies the “name of the particular alien the employer intends to employ; a description of the alien's qualifications and the job; and documentation of the employer's attempts to recruit American workers in compliance with Labor Department regulations.... An alien's place in line is determined by his or her ‘priority date,’ that is, the date when the employer filed the application [.]” Kooritzky v. Reich, 17 F.3d 1509, 1511 (D.C.Cir.1994) (internal citations omitted). “The priority date of any petition filed for classification [as a professional worker] under [8 U.S.C. § 1153(b) ] ... shall be the date the request for [labor] certification was accepted for processing by any office within the employment service system of the Department of Labor.” 8 C.F.R. § 204.5(d) (defining priority date).

In the second step, “[i]f the DOL approves the [certification,] the prospective employer [must] file an I–140 petition with the [USCIS] for an employment-based visa for the alien.” Masih, 536 F.3d at 373 & n. 8 (citing 8 C.F.R. § 204.5); see also Vemuri v. Napolitano, 845 F.Supp.2d 125, 127 (D.D.C.2012) (“Once the certification is obtained, the employer must submit the certification along with an I–140 visa petition to the USCIS on behalf of the non-citizen worker, who is known as the ‘beneficiary’ to the petition.”). “The employer must ... submit documentation to show that the non-citizen worker meets any educational, training, and experience, or other requirements directed by the labor certification [and] that it has the ability to pay the wage specified in the labor certification, from the date on which the request for the labor certification was submitted to the [DOL] until the non-citizen worker obtains lawful permanent resident status.” Vemuri, 845 F.Supp.2d at 127 (emphasis added); see also 8 C.F.R. § 204.5(g)(1)-(2) (explaining the specific requirements for initial supporting documents and outlining the ability-to-pay requirement); Id. § 204.5( l ) (3)(ii)(C) (outlining other documentation for “professionals” including educational requirements).

“An employer bears the burden of showing that the job offer to the beneficiary is a realistic one. Thus the employer must show that the prospective employee meets the minimum job requirements ... and that the employer has the ability to pay the wage specified in the Form ETA–750.” Taco Especial v. Napolitano, 696 F.Supp.2d 873, 878 (E.D.Mich.2010) (citing 8 C.F.R. § 204.5(g)(2); ( l )(3)(ii)). “Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.” 8 C.F.R. § 204.5(g)(2). The petitioner must prove these requirements by a preponderance of the evidence. 8 U.S.C. § 1361.

In the third step, if the I–140 is approved, the “petition will be forwarded to the Department of State for the allotment of a visa number.” Patel v. Johnson, 2 F.Supp.3d 108, 114, 2014 WL 930823, at *2 (D.Mass. Mar. 11, 2014) (citation omitted). This allows the alien worker to “apply to adjust his or her immigration status to that of a lawful permanent resident by filing an I–485 Application to Register Permanent Residence or Adjust Status.” Vemuri, 845 F.Supp.2d at 127 (citing 8 U.S.C. § 1255(a)). “[T]he USCIS cannot approve the I–485 application unless and until it approves the underlying I–140 visa petition.” Id. This “third and final step of the process for aliens who ... reside in the United States ... would result in the adjustment of the alien's status to lawful permanent resident.” Masih, 536 F.3d at 373–74.

If the process stops at the second step because the I–140 visa petition is not approved, “the employer may appeal the decision to the USCIS...