Sunshine Stores and Ali selected H1-B cases

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SUNSHINE STORES, INC., ET AL.,

Plaintiffs,

VS.

ERIC HOLDER, U.S. Attorney General,ET AL.,

Defendants.

)))) CIVIL ACTION NO.)) 3:09-CV-1352-G))))

MEMORANDUM OPINION AND ORDER

Before the court is the defendants’ motion for summary judgment (docket

entry 47). For the reasons set forth below, the motion is granted.

I. BACKGROUND

This is an immigration case. The plaintiffs are Sunshine Stores Inc. (“Sunshine

Stores”), a Texas-based retailer, and husband and wife Ramzan Ali (“Mr. Ali”) and

Munira Ramzan Ali (“Mrs. Ali”). Plaintiffs’ First Amended Petition to the Original

Complaint for Writ of Mandamus and Declaratory Relief (“Complaint”) ¶¶ 3, 5-6

(docket entry 14). The defendants are Eric Holder, Janet Napolitano, Michael Aytes,

Case 3:09-cv-01352-G Document 56 Filed 05/21/12 Page 1 of 11 PageID 818

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An Appeal was filed in the 5th Circuit in this case on June 22, 2012. However, it seems rather ridiculous that these folks have not yet been Removed as they should have been years ago. As you read through you will understand that remark MUCH better. http://dockets.justia.com/docket/circuit-courts/ca5/12-10672/

http://dockets.justia.com/docket/circuit-courts/ca5/12-10672/

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1.) District Court Dismissal; 2.) Government Brief urging this dismissal; 3.) Complaint starting this lawsuit; 4.) AAO Dismissal (one of many).

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Couple arrived on "single entry" B-2 visas in 2003. Mere days before expiration of I-94s he filed an I-539 to extend their B-2s. While the I-539 was pending, employer filed I-129 (H1-B) for her and he filed an I-539 as her dependent. Everything got denied. Appeals and Motions filed for years and then the lawsuit. No mention of any NTAs or Removal Proceedings.

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David Roark, and Mark Hazuda (collectively, United States Citizenship and

Immigration Services or “USCIS”). Id. ¶¶ 1, 7-11.

On October 12, 2003, the Alis were admitted to the United States with B-2

visitor status on a single entry visa. Brief in Support of Defendants’s Motion for

Summary Judgment (“Brief”) at 6 (docket entry 48). Under this visa, they were

authorized to remain in this country until April 11, 2004. Id.

On April 2, 2004, nine days before the scheduled expiration of their initial

visa, the USCIS received the Alis’ first Form I-539 application to extend their

nonimmigrant status (“I-539 #1”). Id. at 7. In this application, the Alis explained

that their stay in the United States would be “temporary,” and that they “do not

intend to stay here longer than [their] authorized time.” Id. They wished to extend

their B-2 visitor status through October 10, 2004. Id.

While the I-539 #1 application was pending, the USCIS received Sunshine

Stores’ Form I-129 petition for a nonimmigrant worker. Id. In this petition,

Sunshine Stores requested that Mrs. Ali’s status be changed from a B-2 visitor to an

H-1B nonimmigrant worker, so that Mrs. Ali could work at Sunshine Stores as an

accountant. Id. Concurrently, Mr. Ali filed a second Form I-539 application (“I-539

#2”), in which he requested that his B-2 visitor status be changed to H-4 dependent

status. Id. at 7-8. Thus, Mr. Ali’s I-539 #2 application was contingent upon Ms.

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Entered on October 12, 2003; I-94s expiring on April 11, 2004; I-539 (B-2s) filed on April 2, 2004; I-129/539 filed on June 11, 2004; RFE for I-129 sent June 15, 2004; I-539 (B-2s) denied on Aug. 30, 2004; I-129/539 denied on Sept. 1. 2004; 8 years of Denied Appeals, Motions, & lawsuits June 12, 2012, filed an Appeal to 5th Circuit!

Ali’s I-129 application. Id. at 9. Both Alis wished to have their stays in the United

States extended until October 1, 2007. Id. at 7.

On June 15, 2004, USCIS requested that Sunshine submit additional evidence

in support of Mrs. Ali’s I-129 on the question of whether her potential position was a

“specialty occupation.” Id. at 8. On August 19, 2004, USCIS received Sunshine’s

response. Id.

On August 30, 2004, USCIS denied the Alis’ I-539 #1 request for extension of

their B-2 visitor status. Id. A principal reason for the denial was that Sunshine Stores

had filed an I-129 petition on behalf of Mrs. Ali. Id. at 9. The USCIS explained that

this demonstrated that the Alis did not intend to leave the United States. Id. at 9.

On September 1, 2004, USCIS denied Sunshine’s I-129 petition for failure to

establish that the position met the regulatory definition of a “specialty occupation.”

Id. Concurrently, USCIS denied Mr. Ali’s contingent I-539 #2 request to change his

status from a B-2 visitor to an H-4 dependent. Id.

After the USCIS denied the I-539 #1, I-539 #2, and I-129 requests, the

plaintiffs filed a series of motions to reopen and reconsider their applications, as well

as an appeal to the Administrative Appeals Unit. Id. at 10-13. All of the plaintiffs’

motions and appeals were denied. Id.

On July 17, 2009, the plaintiffs filed this suit challenging the USCIS’ decision

on their I-539 and I-129 requests. On September 23, 2011, the defendants filed this

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motion for summary judgment. Summary judgment is proper when the pleadings,

depositions, admissions, disclosure materials on file, and affidavits, if any, “show[]

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FEDERAL RULE OF CIVIL PROCEDURE 56(a), (c)(1). A

fact is material if the governing substantive law identifies it as having the potential to

affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). An issue as to a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.; see also Bazan ex

rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (“An issue is ‘genuine’

if it is real and substantial, as opposed to merely formal, pretended, or a sham.”). To

demonstrate a genuine issue of material fact, the nonmoving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574, 586

(1986). The nonmoving party must show that the evidence is sufficient to support

the resolution of the material factual issues in his favor. Anderson, 477 U.S. at 249

(citing First National Bank of Arizona v. Cities Service Company, 391 U.S. 253, 288-89

(1968)).

When evaluating a motion for summary judgment, the court views the

evidence in the light most favorable to the nonmoving party. Id. at 255 (citing Adickes

v. S.H. Kress & Company, 398 U.S. 144 (1970)). However, it is not incumbent upon

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the court to comb the record in search of evidence that creates a genuine issue as to a

material fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). The

nonmoving party has a duty to designate the evidence in the record that establishes

the existence of genuine issues as to the material facts. Celotex Corporation v. Catrett,

477 U.S. 317, 324 (1986). “When evidence exists in the summary judgment record

but the nonmovant fails even to refer to it in the response to the motion for summary

judgment, that evidence is not properly before the district court.” Malacara, 353 F.3d

at 405.

II. ANALYSIS

A. Judicial Review of Administrative Agency Decisions

Under the Administrative Procedures Act, 5 U.S.C. § 500 et seq. (“APA”), “[a]

person suffering legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant statute, is entitled to

judicial review thereof.” Id. § 702. In particular, a “reviewing court shall . . . hold

unlawful and set aside agency action, findings, and conclusions found to be . . .

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. § 706(2)(A). The Fifth Circuit has explained that an agency’s action is arbitrary

and capricious

“if the agency has relied on factors which Congress has notintended it to consider, entirely failed to consider animportant aspect of the problem, offered an explanation forits decision that runs counter to the evidence before the

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agency, or is so implausible that it could not be ascribed toa difference in view or the product of agency expertise.”

Luminant Generation Company, L.L.C. v. United States Environmental Protection Agency,

675 F.3d 917, 925 (5th Cir. 2012) (quoting Texas Oil and Gas Association v.

Environmental Protection Agency, 161 F.3d 923, 955 (5th Cir. 1998)).

The scope of review of agency actions under Section 706(2)(A) is “very

narrow.” Delta Foundation, Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002)

(quoting Louisiana v. Verity, 853 F.2d 322, 327 (5th Cir. 1988)). “The court’s role is

not to weigh the evidence pro and con but to determine whether the agency decision

‘was based on a consideration of the relevant factors and whether there was a clear

error of judgment.’” Id. (quoting Louisiana, 853 F.2d at 327). “Thus, if the agency

considers the factors and articulates a rational relationship between the facts found

and the choice made, its decision is not arbitrary and capricious.” Id. (quoting Harris

v. United States, 19 F.3d 1090, 1096 (5th Cir. 1994)). “The ‘agency’s decision need

not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave

at least minimal consideration to relevant facts contained in the record.’” Id. (quoting

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance

Company, 463 U.S. 29, 43 (1983)).

B. Requests under I-129 and I-539 #2

The plaintiffs argue that the USCIS’ denial of their I-129 and I-539 #2

requests was “arbitrary, capricious, and not in accordance with law.” Complaint ¶ 29.

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In particular, they argue, the USCIS was wrong to determine that the position that

Sunshine Stores had for Mrs. Ali was not a “specialty occupation.” Id. ¶ 28. In this

case, the court concludes that the USCIS’ determination that the Sunshine Stores

position was not a “specialty occupation” was not arbitrary and capricious.

1. Legal Standard: What Constitutes a “Specialty Occupation”

Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., a qualified

temporary nonimmigrant alien can come to the United States to work for a

sponsoring employer in a “specialty occupation.” Id. § 1101(a)(15)(H)(i)(b). These

aliens are known as “H-1B” nonimmigrants. 8 C.F.R. § 214.2(h)(1)(ii)(B). If an

employer wishes to employ an H-1B nonimmigrant, the employer must demonstrate

that offered position is a specialty occupation, and that the potential H-1B

nonimmigrant is qualified for the position. See 8 C.F.R. § 214.2(h)(4)(iv)(A).

A “specialty occupation” is one that requires “theoretical and practical

application of a body of highly specialized knowledge, and [the] 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)(1)(A)-(B).

To qualify as a specialty occupation, the position offered by the employer must meet

one of the four following requirements:

(1) A baccalaureate or higher degree or its equivalent isnormally the minimum requirement for entry into theparticular position;

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(2) The degree requirement is common to the industry inparallel positions among similar organizations or, in thealternative, an employer may show that its particularposition is so complex or unique that it can be performedonly by an individual with a degree;

(3) The employer normally requires a degree or itsequivalent for the position; or

(4) The nature of the specific duties are so specialized andcomplex that knowledge required to perform the duties isusually associated with the attainment of a baccalaureate orhigher degree.

8 C.F.R. § 214.2(h)(4)(iii)(A).

2. Application

In this case, Sunshine Stores filed an I-129 request to change Mrs. Ali to an H-

1B nonimmigrant so she could be employed as an accountant. See Brief at 15. The

USCIS denied the I-129 request on the grounds that Sunshine Stores failed to

demonstrate that the position constituted a “specialty occupation.” Id. After

reviewing the record, the court concludes that the USCIS did not act arbitrarily and

capriciously when it denied Sunshine Stores I-129 application.

First, it is clear that Sunshine Stores did not “normally require[] a degree or its

equivalent for the position.” See 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). This is because

Sunshine Stores had never previously employed anyone as an accountant. Brief at 8.

Second, Sunshine Stores failed to show that a baccalaureate or higher degree

was a normal requirement for that position, or a parallel position in similar

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organizations. See 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(2). After Sunshine Stores

submitted the I-129, USCIS requested additional evidence on whether the position

that Mrs. Ali would fill was a specialty occupation. Brief at 8. The response

contained a lengthy description of what Mrs. Ali would be doing if she filled the

position. Appendix to Brief in Support of Defendants’s Motion for Summary

Judgment (“Appendix”) at 22-74 (docket entry 49). However, the vast majority of

this description was an explanation of what accountants and financial managers do in

general. While many positions for accountants do require advanced degrees,

Sunshine Stores failed to show that the particular position it was offering Mrs. Ali

would normally require such a degree in the industry.

Finally, Sunshine Stores failed to show that the particular position was so

specialized, complex, or unique that it could only be performed by an individual with

a degree. See 8 C.F.R. § 214.2(h)(4)(iii)(A)(4). While the plaintiffs’ complaint

alleges that Sunshine Stores has gross revenues of over $6,000,000, Complaint ¶ 3,

the I-129 filed in 2004 stated that Sunshine Stores’ gross annual income was

“+$100,000”, and that it employed ten individuals, Appendix at 4. However, as the

Administrative Appeals Unit noted, “[n]ot all accounting employment is performed

by degreed accountants.” Appendix at 134. Instead, many accounting tasks are

completed by individuals with “associate degrees or certificates, or who have acquired

their accounting expertise through experience.” Id. After considering the size and

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complexity of Sunshine Stores’ operations, the USCIS reasonably decided that its

accounting needs did not require someone with an advanced degree.

As a result, it was not arbitrary or capricious for the USCIS to deny Sunshine

Store’s I-129 request. Moreover, because Mr. Ali’s I-539 request was contingent on

Sunshine Stores I-129 request, it was not arbitrary or capricious for the USCIS to

deny Mr. Ali’s I-539 request.

C. Requests under I-539 #1

Mr. and Mrs. Ali also argue that the USCIS was arbitrary and capricious in

denying their I-539 #1 request to extend their B-2 nonimmigrant visitor status. In

this application, the Alis stated that they “have substantial ties with India and intend

to return upon completion of our visit.” Appendix at 156. They explain that their

“stay in the United States will be temporary and [they] do not intend to stay here

longer than [their] authorized time.” Id. However, while the I-539 #1 request was

pending, Sunshine Stores submitted the I-129 request on behalf of Mrs. Ali. Brief at

25. As stated in the denial of the I-539 #1 request, “[t]his action strongly suggests

that through your attorneys, you submitted your applications primarily to circumvent

the immigration laws of the United States.” Id.; see also Appendix at 166. As a result,

it was not arbitrary or capricious of the USCIS to deny the Alis’ I-539 #1 request.

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III. CONCLUSION

For the reasons set forth above, the defendants motion for summary judgment

is GRANTED. Judgment will be entered for the defendants.

SO ORDERED.

May 21, 2012.

___________________________________A. JOE FISHSenior United States District Judge

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DALLAS DIVISION

SUNSHINE STORES, INC., §RAMZAN ALI, and §MUNIRA RAMZAN ALI, §

§Plaintiffs, §

§v. § CASE NO. 3:09-CV-1352-G

§ERIC HOLDER, §U.S. ATTORNEY GENERAL, §et. al. §

§ Defendants. §

BRIEF IN SUPPORT OF DEFENDANTS’S MOTION FOR SUMMARY JUDGMENT

JAMES T. JACKSUNITED STATES ATTORNEY

/s/ Angie L. Henson ANGIE L. HENSONAssistant United States AttorneyTX SBN: 094929001100 Commerce Street, Third FloorDallas, Texas 75242Telephone: 214.659.8600Facsimile: 214.659.8807Email: [email protected]


TABLE OF CONTENTSPage(s)

SUMMARY ................................................................................................................................... 1

OVERVIEW OF THE TEMPORARY NONIMMIGRANT WORKER H-IB VISA PROGRAM .................................................................................................................................... 2

UNDISPUTED FACTS ................................................................................................................ 6

REVIEW UNDER THE APA ..................................................................................................... 13

ARGUMENTS AND AUTHORITIES ....................................................................................... 15

CONCLUSION ............................................................................................................................ 29

CERTIFICATE OF SERVICE ................................................................................................... 29

i


TABLE OF AUTHORITIES

FEDERAL CASES

All Aboard Worldwide Couriers, Inc. v. Attorney General, 8 F. Supp. 2d 379 (S.D. N.Y. 1998) 5

Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N. D. Tex. 1989) ....................................... 14

Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000) ............................................................... 5, 14

Giddings v. Chandler, 979 F.2d 1104 (5th Cir. 1992) ........................................................... 22, 28

Hayward v. United States Department of Labor, 536 F.3d 376 (5th Cir. 2008) ......................... 14

Motor Vehicles Manufacturers Association of the United States v. State Farm MutualAutomobile Insurance Co., 463 U.S. 29 (1983) ........................................................................... 14

Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. 2007) ................................................... 23

Sherwin-Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003) ............................... 22, 28

State of Louisiana v. Verity, 853 F.2d 322 (5th Cir.1988) ......................................... 13, 14, 16, 27

FEDERAL STATUTES

8 C.F.R. §§ 103.3(a)(1)(iii) ........................................................................................................... 4

8 C.F.R. §103.3(a)(1)(iv) ............................................................................................................... 4

8 C.F.R. § 103.5 ........................................................................................................................... 25

8 C.F.R. § 103.5(a)(1)(ii)(A) ....................................................................................................... 26

8 C.F.R. § 214.1(c)(1) .................................................................................................................. 16

8 C.F.R. § 214.1(c)(5) (2003) ...................................................................................................... 23

8 C.F.R. §214.2(h) ......................................................................................................................... 4

8 C.F.R. §214.2(h)(13)(iii) ............................................................................................................. 4

8 C.F.R. §214.2(h)(15)(ii)(B)(1) .................................................................................................... 4

8 C.F.R. §214.2(h)(4)(iii)(A) ............................................................................................... 5, 9, 17

ii


8 C.F.R. § 214.2(h)(4)(iv)(A) ........................................................................................................ 3

8 C.F.R. § 214.2(h)(8)(ii)(A)(1) .................................................................................................... 3

8 C.F.R. § 214.2l(ii)(M) ............................................................................................................... 16

5 C.F.R. § 701(a)(2) ..................................................................................................................... 23

8 U.S.C. § 1101(a)(15)(H)(i)(b) ..................................................................................................... 2

8 U.S.C. §§ 1103(a)(1) & 1182(n) ................................................................................................. 3

8 U.S.C. §§ 1184(c)(1) ................................................................................................................... 3

8 U.S.C. § 1184(i)(1)(A)-(B) ......................................................................................................... 4

8 U.S.C. § 1258 ............................................................................................................................ 15

8 U.S.C. § 1361 ........................................................................................................................ 5, 16

5 U.S.C. § 701 .............................................................................................................................. 15

5 U.S.C. § 701(a)(2) ............................................................................................................... 14, 15

5 U.S.C. § 706(2)(A) .................................................................................................................... 13

20 C.F.R. § 655.731(a) ................................................................................................................... 3

8 C.F.R. § 214.2(h)(4)(i)(B)(2) ................................................................................................ 3, 16

MISCELLANEOUS

USCIS Adjudicator's Field Manual §31.3(g)(1) ............................................................................ 6

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DALLAS DIVISION

SUNSHINE STORES, INC., §RAMZAN ALI, and §MUNIRA RAMZAN ALI, §

§Plaintiffs, §

§v. § CASE NO. 3:09-CV-1352-G

§ERIC HOLDER, §U.S. ATTORNEY GENERAL, §et. al. §

§ Defendants. §

BRIEF IN SUPPORT OF DEFENDANTS’S MOTION FOR SUMMARY JUDGMENT

Eric Holder, United States Attorney General; Janet Napolitano, Secretary, United

States Department of Homeland Security; Michael Aytes, Deputy Director, United States

Citizenship and Immigration Services; David Roark, Director, United States Citizenship

and Immigration Services, Texas Service Center; and Mark Hazuda, Acting Director,

United States Citizenship and Immigration Services, Vermont Service Center, Defendants

(USCIS, collectively), file this Brief in support of their Motion for Summary Judgment.

SUMMARY

Plaintiffs Ramzan Ali (Ramzan) and his wife, Munira Ramzan Ali (Munira)

entered the United States in 2003 on single-entry B-2 visitor visa stamp. In 2004,

Plaintiff Sunshine Stores, Inc. (Sunshine) filed an I-129 Petition for Non-Immigrant

Brief in Support of Defendants’s Motion for Summary Judgment - Page 1


Worker seeking permission to hire Munira as an accountant. Ramzan filed two I-539

Applications to Extend/Change Non-Immigrant Status, one seeking to extend his and his

wife’s visit as visitors and the other seeking to change his status to an H-4 dependent

which would allow him to stay in the United States with his wife if Sunshine’s I-129 was

granted. USCIS denied the I-129 and both of the I-539s.

The Plaintiffs assert that USCIS erred as a matter of law when it denied the I-129

and I-539s and that its denials were arbitrary and capricious. The granting of I-129s and

I-539s is within the discretion of USCIS. To prove that the denials were arbitrary and

capricious, the Plaintiffs must show that USCIS did not consider relevant factors and that

the decisions were clear errors of judgment. In addition to the decisions on the

applications being discretionary, the denials were appropriate based on the information

Plaintiffs submitted at the time they filed the applications.

The Plaintiffs seek a writ of mandamus, a declaratory judgment and relief under

the Administrative Procedure Act but fail to show entitlement to any relief. There is no

genuine dispute as to any material fact, however, and the Defendants are entitled to

judgment as a matter of law.

OVERVIEW OF THETEMPORARY NONIMMIGRANT WORKER (H-1B) VISA PROGRAM

The Immigration and Nationality Act (INA) provides for the classification of

qualified temporary worker (“nonimmigrant”) aliens who are coming to the United States

to perform services for a sponsoring employer in a “specialty occupation.” 8 U.S.C. §



1101(a)(15)(H)(i)(b). These aliens are classified as “H-1B” nonimmigrants. Employers

seeking to employ foreign nationals under the H-1B program must demonstrate that the

proffered position is a specialty occupation, and that the alien beneficiary qualifies for the

specialty occupation position. 8 C.F.R. § 214.2(h)(4)(iv)(A). The determination of

whether an employer’s position qualifies as a specialty occupation has been delegated to

the Secretary of Homeland Security. 8 U.S.C. §§ 1103(a)(1) & 1184(c)(1).

Before filing a petition with USCIS to classify an alien beneficiary as an H-1B

nonimmigrant, the petitioning employer must file a labor condition application (LCA)

with the Department of Labor (DOL). 8 U.S.C. §§ 1182(n), 1184(c)(1). When filing an

LCA, the employer must agree, among other things, to pay a prevailing wage identified

by DOL to the prospective H-1B employee. 20 C.F.R. § 655.731(a). Once an employer

receives a certified LCA from DOL, the employer files its petition, Form I-129, with

USCIS, along with supporting documentation concerning the claimed specialty

occupation position and the alien beneficiary’s qualifications. Nonetheless, a certified

LCA issued by DOL is not a determination that the position at issue is a specialty

occupation. 8 C.F.R. § 214.2(h)(4)(i)(B)(2). The certified LCA simply establishes the

employer’s responsibility to comply with certain prevailing wage requirements and to

maintain certain working conditions. 8 U.S.C. § 1182(n).

If the USCIS adjudicator makes a favorable determination, the employer’s H-1B

petition is approved and can have a validity period up to three years. 8 C.F.R. §

214.2(h)(8)(ii)(A)(1). After three years, an employer may request an extension of stay



for the H-1B nonimmigrant for an additional three years. 8 C.F.R. §

214.2(h)(15)(ii)(B)(1). Aliens are limited to a six- year period in H-1B status, 8 C.F.R. §

214.2(h)(13)(iii), except under specific statutorily defined exceptions.

If the USCIS adjudicator determines that the employer’s H-1B petition should be

denied, the employer has the right to appeal the decision to the USCIS Administrative

Appeals Office (AAO). 8 C.F.R. §§ 103.3(a)(1)(iii) & § 214.2(h)(12)(i). The AAO is an

appellate body located within its own division of USCIS, separate from the adjudication

arm of the agency, which is located under the Domestic Operations Director. 8 C.F.R. §

103.3(a)(1)(iv).

Specialty Occupations

“Specialty occupation” means an occupation that requires a “theoretical and

practical application of a body of highly specialized knowledge, and [the] 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)(1)(A)-(B). The

regulations further define specialty occupation as an

occupation which requires theoretical and practical application of a body ofhighly specialized knowledge in fields of human endeavor including, butnot limited to . . . accounting . . . and which requires the attainment of abachelor’s degree or higher in a specific specialty, or its equivalent, as aminimum for entry into the occupation in the United States.

8 C.F.R. §214.2(h). In order to qualify as a specialty occupation within the meaning of

the statute, the position must meet one of the following criteria:

( 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 positionsamong similar organizations or, in the alternative, an employer may showthat its particular position is so complex or unique that it can be performedonly by an individual with a degree;( 3 ) The employer normally requires a degree or its equivalent for theposition; or( 4 ) The nature of the specific duties are so specialized and complex thatknowledge required to perform the duties is usually associated with theattainment of a baccalaureate or higher degree.

8 C.F.R. §214.2(h)(4)(iii)(A).

The burden of proof rests on the employer and the alien beneficiary to establish

that the proffered position is a specialty occupation and that the alien beneficiary

qualifies for the specialty occupation. 8 U.S.C. § 1361. The employer may not make an

end run around the specialty occupation requirement by hiring an alien with a college

education for a position that does not require such a high level. Cf. Defensor v. Meissner,

201 F.3d 384, 387-88 (5th Cir. 2000).

After receiving the employer’s I-129 H-1B petition, certified LCA, and other

supporting documents, USCIS adjudicators make a case-by-case, fact-sensitive,

determination of whether the job at issue in the petition is a specialty occupation. See All

Aboard Worldwide Couriers, Inc. v. Attorney General, 8 F. Supp. 2d 379, 382 (S.D. N.Y.

1998).

In order to assess the issue of whether a position offered is a specialty occupation,

USCIS adjudicators are instructed to consider all facts surrounding the petition, including



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“the beneficiary’s education and work experience, the nature of the petitioner’s business,

industry practice, and salary.” USCIS Adjudicator’s Field Manual § 31.3(g)(1).1 USCIS

adjudicators are also instructed to consult the Bureau of Labor Statistics’s Occupational

Outlook Handbook (OOH) as a source for determining industry standards. Id.

UNDISPUTED FACTS

1. Ramzan and Munira Ali (“the Alis,” collectively) were issued B-2 visitor visa

stamps in their passports by the United States Consulate in Chennai (Madras), India on

August 18, 2003. The B-2 visa stamps were valid until November 17, 2003, for a single

entry into the United States. (Appendix at 161-62.)2

2. On October 12, 2003, the Alis were admitted to the United States in B-2 visitor

status on the single-entry visas, with authorization to remain until April 11, 2004. (Id. at

159-60.)

1The Adjudicator’s Field Manual is publically available athttp://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm.

2The appendix is composed of excerpts from the Administrative Records. The completeAdministrative Records are on file with this Court.



3. On April 2, 2004, USCIS received the Alis’s Form I-539, Application to

Extend/Change Nonimmigrant Status (I-539 #1), requesting an extension of their B-2

visitor status through October 10, 2004. (Id. at 154.)

4. The Alis included the following statement in their request for extension of their

B-2 visitor status: “We have substantial ties with India and intend to return upon

completion of our visit . . . We will not be working in United States and have substantial

means to support ourselves and take care of any expenses that may occur. Our stay in

United States will be temporary and we do not intend to stay here longer than our

authorized time.” (Id. at 156.)

5. Included in the April 2, 2004, request for extension of their B-2 visitor status

was a brief letter from Donald R. Samuel, M.D., dated March 2, 2004, stating that

Munira had recently had surgery and was under his medical care. Dr. Samuel’s letter

also stated that it was not advisable for Munira to travel at that time but that he would

advise when she could travel safely. (Id. at 163.)

6. Sunshine is a company involved in convenience store retail sales. On June 11,

2004, while the I-539 #1 was pending, USCIS received Form I-129, Petition for a

Nonimmigrant Worker, filed by Sunshine on behalf of Munira for the position of

Accountant. The petition requested that Munira’s status be changed from B-2 visitor to

H-1B nonimmigrant worker and that the H-1B status be extended until October 1, 2007.

(Id. at 3-4, 11.)

7. Ramzan concurrently filed another Form I-539, Application to Extend/Change



Joey

Highlight

Joey

Highlight

Nonimmigrant Status (I-539 #2), requesting that his status be changed from B-2 visitor to

H-4 dependent and that the H-4 status be extended until October 1, 2007. (Id. at 76.)

8. On June 15, 2004, USCIS issued a Request for Additional Evidence (RFE) on

the I-129 requesting evidence that the position requested in the petition was a specialty

occupation as defined in the RFE and that it was the industry standard as it related to

Sunshine’s organization to hire individuals with a baccalaureate or equivalent for the

position in the petition. It also requested information and documentary evidence on who

performed Sunshine’s accounting services in the past, as well as that individual’s

qualifications, and evidence that Munira was in a valid non-immigrant status. Sunshine

was given 12 weeks to respond. (Id. at 16-17.)

9. On August 19, 2004, USCIS received Sunshine’s RFE response. Sunshine

stated that it had not previously employed any person in the position of accountant prior

to hiring Munira and was unable to provide documentary evidence regarding a history of

minimum requirements for the position. Sunshine also stated that Munira’s duties

resembled those set forth in the DOL’s OOH for the positions of financial manager,

accountant/auditor and budget analyst, and attached the corresponding portion of the

OOH but did not otherwise answer the questions posed in the RFE. (Id. at 19-71.)

10. On August 30, 2004, USCIS denied the Alis’s I-539 #1 request for

extension of their B-2 visitor status. The request was denied because the Alis did not

provide sufficient information regarding the nature of Munira’s medical treatment, such

as the type of treatment she received, the anticipated date of release from medical care,



whether the treatment was unavailable in her home country, whether she was unable to

fly home due to the ongoing medical treatment, and evidence of her paid medical bills.

Further, USCIS noted that an I-129 Petition for a Nonimmigrant Worker had been filed

on behalf of Munira, contrary to her statement in the B-2 extension request that she

would not be working in the United States. Based on the record, the Alis did not meet

their burden of proof in demonstrating that they intended to depart the United States and

that their request for an extension of their B-2 visitor status was not merely an attempt to

prolong their stay indefinitely. (Id. at 165-66.)

11. On September 1, 2004, USCIS denied Sunshine’s I-129 filed on behalf of

Munira because Sunshine failed to establish that the offered position of accountant met

the regulatory definition of “specialty occupation.” The denial explained that the critical

element is not the title of the position or an employer’s self-imposed standard. Sunshine

did not submit documentary evidence to satisfy the criteria in 8 C.F.R. §

214.2(h)(4)(iii)(A). Therefore, given the size, scope and complexity of Sunshine’s

organization, as well as the duties of an accountant in relation to Sunshine’s business, this

position did not qualify as a specialty occupation. (Id. at 71-74.)

12. Concurrent with the I-129 denial, USCIS also denied Ramzan’s I-539 #2

request to change status from B-2 visitor to H-4 dependent. His request for change of

status to H-4 was contingent upon the approval of Munira’s change of status. Since the

I-129 filed on behalf of Munira was denied, Ramzan’s request to change status to H-4

was consequently denied. (Id. at 80.)



13. On October 5, 2004, untimely Motions to Reopen on both the I-129 on

behalf of Munira and the I-539 #2 were filed. Sunshine made additional assertions about

its business but did not provide evidence of its actual size, number of retail stores owned,

its finances, or how it was determined that it needed a full-time accountant. (Id. at 81-

99.)

14. Also on October 5, 2004, the Alis, through new counsel, filed a Motion to

Reopen the denial of their I-539 #1 request for extension of their B-2 visitor status. The

new counsel did not submit Form G-28, Notice of Entry of Appearance as Attorney or

Representative. The Alis argued that (1) it was error for USCIS to deny the I-539 #1

extension request without first requesting additional documentation on Munira’s medical

condition, and (2) USCIS is permitted to presume preconceived intent to engage in

employment only if the I-129 had been filed within 60 days of her initial entry as a B-2

visitor or within 60 day of filing her B-2 extension of her visitor status. Attached to the

Motion to Reopen was a brief letter from Donald R. Samuel, M.D., dated September 30,

2004, which stated that: Munira was under his care from November 2003 through April

28, 2004; she had a cesarean section on February 4, 2004; she was not advised to travel



for 8 weeks after surgery; and the baby was approved for travel in May 2004 at Munira’s

post-partum visit on April 28, 2004. (Id. at 168-70.)

15. On December 3, 2004, USCIS denied both Motions to Reopen/Reconsider on

the I-129 for Munira and I-539 #2 change of status for Ramzan as untimely filed and

because the grounds originally stated in the denials had not been overcome. (Id. at 101-

06.)

16. On December 16, 2004, USCIS dismissed the Alis’s Motion to Reopen their

I-539 #1 extension of their B-2 visitor status and upheld the original denial. The Motion

to Reopen was not properly filed, as neither the affected party (i.e. the Alis) nor the

attorney or representative of record had signed the motion. (The new counsel had not

filed Form G-28, Notice of Appearance as Attorney or Representative and, therefore, was

not counsel of record.) Further, upon review of the entire record, the Alis failed to

overcome the basis for the original denial, which was based on their attempt to prolong

their stay in the United States indefinitely. (Id. at 172.)

17. On December 23, 2004, Sunshine filed Form I-290B Appeal to the

Administrative Appeals Unit (AAU, now Administrative Appeals Office or AAO),

requesting review of the I-129 denial and indicated that a brief and/or evidence would be

submitted to the AAO within 30 days. (Id. at 107-08.)

18. On January 18, 2005, an extension of 30 days to file a brief in support of the

appeal was requested. On February 21, 2005, another extension of five business days to

submit the brief in support of the appeal was requested. These extensions were granted,



with the appeal brief due on February 28, 2005. (Id. at 109-14.)

19. On February 25, 2005, the AAO received the appeal brief. Sunshine asserted

that it had submitted evidence to show the proposed position of accountant is a specialty

occupation and cited to the OOH. (Id. at 115-26.)

20. On July 27, 2006, the AAO dismissed the appeal and affirmed the

determination that Sunshine failed to establish it would employ Munira in a specialty

occupation. The AAO pointed out that some of the listed duties did not relate to

Sunshine’s business, such as coordinating efforts with sales representatives to target new

sales territories and advising sales representatives in matters such as import and export

regulations. The AAO further stated that, while the size of the company is not relevant in

determining whether a position qualifies as a specialty occupation, the level of income

generated by Sunshine had a direct and substantial bearing on the scope and depth of the

proposed duties of accountant. Sunshine’s gross annual income of “+$100,000” and

employment of 10 persons in the convenient store retail business did not necessitate the

hiring of an accountant with a bachelor’s degree in accounting. (Id. at 127-35.)

21. On August 29, 2006, Sunshine filed a Motion to Reopen/Reconsider the

AAO’s decision. (Id. at 136-43.)



22. On November 17, 2006, USCIS dismissed Sunshine’s Motion to

Reopen/Reconsider, as the evidence submitted did not overcome the basis for denial. (Id.

at 144-46.)

23. On February 8, 2008, the AAO dismissed Sunshine’s Motion to

Reopen/Reconsider. The motion did not meet the regulatory requirements for a motion

to reopen since it did not reference any new facts in support of the I-129 but merely

included an opinion letter based on facts already in existence. Further, the motion did not

meet the requirements of a motion to reconsider because it did not establish that the prior

decision was based on an incorrect application of law. (Id. at 147-50.)

24. On March 11, 2008, Sunshine, through [another] new counsel, filed a final

Motion to Reopen and Reconsider with a brief attached. On March 18, 2009, USCIS

dismissed the Motion to Reopen and Reconsider, as the motion did not present any new

facts or establish that the prior decision was based on an incorrect application of law or

USCIS policy. (Id. at 151-52.)

REVIEW UNDER THE APA

“Under the APA, the administrative record is reviewed to determine whether the

challenged action was arbitrary and capricious, an abuse of discretion, or otherwise not in

accordance with law.” State of Louisiana v. Verity, 853 F.2d 322, 326 (5th Cir.1988); see

5 U.S.C. § 706(2)(A). Under this “very narrow” standard of review, the Court may not

“weigh the evidence in the record pro and con.” Verity, 853 F.2d at 327. Instead, the

Court’s “role is to review the agency action to determine whether the decision ‘was based



on a consideration of the relevant factors and whether there was a clear error of

judgment.’” Id. (quoting Motor Vehicles Mfrs. Ass’n of the United States v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “A reviewing court is not to substitute its

judgment for that of the agency, and the court is to show proper deference to agency

expertise.” Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 535 (N. D. Tex. 1989).

“Thus, if the agency considers the factors and articulates a rational relationship between

the facts found and the choice made, its decision is not arbitrary or capricious.” Verity,

853 F.2d at 327. “Indeed, the agency’s decision need not be ideal, so long as it is not

arbitrary or capricious, and so long as the agency gave at least minimal consideration to

relevant facts contained in the record.” Id. (footnote omitted). See also Hayward v.

United States Dept. of Labor, 536 F.3d 376, 379-80 (5th Cir. 2008) (same). “[A] federal

agency’s interpretation of a statute whose administration is entrusted to it is to be

accepted unless Congress has spoken directly on the issue . . . Even if statutory or

regulatory language is ambiguous, deference is usually given to the agency’s

interpretation.” Defensor, 201 F.3d at 386. The APA, however, does not apply to agency

action that “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).



ARGUMENTS AND AUTHORITIES

The I-129 and I-539 #2

Sunshine filed an I-129 on June 11, 2004, seeking to hire Munira into a “specialty

occupation,” as an accountant. USCIS denied the I-129 because Sunshine failed to show

that it was the industry standard for its business, or for businesses of like size and

description, to employ a full-time accountant. Sunshine exhausted its administrative

remedies in an unsuccessful effort to get the denial overturned. Sunshine now appeals the

denial through the use of the Administrative Procedure Act (APA), 5 U.S.C. § 701.

Sunshine, however, is not entitled to relief.

A. The Decision to Deny Was Not An Error as a Matter of Law.

The grant or denial of an I-129 is at the discretion of USCIS. 8 U.S.C. § 1258.

Because the decision is discretionary, the denial of the I-129 cannot be an error as a

matter of law. Moreover, the APA does not apply to agency action committed by law to

agency discretion. 5 U.S.C. § 701(a)(2).

B. The Decision to Deny Was Not Arbitrary and Capricious.

Even if the APA did apply here, however, the decision to deny the I-129 was not

arbitrary and capricious. USCIS gave Sunshine an opportunity to amend or supplement

its application in order to obtain a positive adjudication of the I-129. In the RFE, USCIS

specifically set out the definitions and standards used to determine if an occupation is a

specialty occupation and asked for specific information from Sunshine to show that the

position it had open was for a specialty occupation. Sunshine failed to provide the



requisite information. USCIS considered the factors involved in establishing an

occupation as a specialty occupation. It also clearly articulated the reasons why it made

the decision to deny the I-129. The reasons given were rationally related to the facts.

The denial was not arbitrary and capricious. See Verity, 853 F.2d at 327.

Anyone who makes application for admission into the United States has the burden

of proof “to establish that he is eligible to receive such visa . . . or is not inadmissible . . .

and is entitled to the nonimmigrant . . . status claimed. If such person fails to establish to

the satisfaction of [USCIS] that he is eligible” he shall not be admitted. 8 U.S.C. § 1361.

An employer who seeks to hire a nonimmigrant temporary worker as an

accountant in a “specialty occupation” must apply for an H-1B visa on behalf of the

nonimmigrant it wishes to hire. Application is made through a Form I-129. 8 C.F.R. §

214.1(c)(1). “The director shall determine if the application involves a specialty

occupation as defined in section 214(i)(1) of the Act [8 U.S.C. 1184(i)(1)] .” 8 C.F.R. §

214.2(h)(4)(i)(B)(2). “Director means a Service Center director with delegated authority

at 8 CFR 103.1.” 8 C.F.R. § 214.2l(ii)(M).

In the case at hand, Sunshine could not show that a bachelor’s degree or its

equivalent was the normal minimum requirement for entry into the “accountant” position

it had open because it had never hired anyone for that position. (Appendix at 32.) For the

same reason, it could not show that it normally required a degree for the position. For

Sunshine to have been successful on its I-129, therefore, it had to show that (1) it was

common in the industry in parallel positions among similar organizations that bachelor’s



degrees were required, (2) the particular position was so complex or unique that it could

have been performed only by someone with a degree, or (3) the nature of the specific

duties were so specialized and complex that knowledge obtained by acquiring a bachelors

degree was required to perform them. 8 C.F.R. § 214.2(h)(4)(iii)(A) (emphasis added).

Sunshine did not make the requisite showing.

On its initial application, Sunshine said only that the proposed duties were to

“collect, analyze and manage financial data; oversee and direct financial operations.”

(Appendix at 5.) In its attachment to the application, instead of listing or explaining the

duties that would be specifically required of the person filling its position, Sunshine

provided what appeared to be a copied list of the duties often associated with an

accountant’s position from the OOH. (Id. at 12-13.) Sunshine made no effort to connect

the lists to the actual job in question.

On June 15, 2004, USCIS sent Sunshine a “Request for Additional Evidence.” In

the request, it set out the definition and requirements for the specialty occupation of

accountant. (Id. at 16-17.) The request also asked for specific information, including:

evidence showing “that the occupation is a specialty occupation as definedabove . . . evidence that it is the industry standard as it relates to[Sunshine’s] organization to hire individuals with a baccalaureate orequivalent for this position . . . the name of the individual who providedaccounting services for Sunshine in the past and documentary evidence thatthe individual had a bachelor’s degree, if he did.

(Id. at 17.) (Emphasis added). Sunshine was given 12 weeks to respond to the request.

In its response to the Request for Evidence, Sunshine provided an even longer list of job



duties of, and courses taken by, financial managers, accountants, auditors, and budget

analysts in the abstract and compared its listing to information in publications from the

DOL. (Id. at 34-70.) No connection between that list and Sunshine’s business in

particular or the type and size of a business like Sunshine was attempted. Further,

Sunshine did not provide the name of the individual who had previously provided

accounting services.

On September 1, 2004, USCIS denied the application for the I-129. The Director

explained the denial, stating:

the information you submitted does not adequately establish that theposition meets the criteria of a specialty occupation. This office requestedthat the petitioner submit documentary evidence to establish that it is theindustry standard among similar organizations to require the attainment of abachelor’s degree to perform the duties of an accountant. The evidencesubmitted did not establish that a baccalaureate or higher degree or itsequivalent is normally the minimum requirement for entry as an Accountantas it relates to your organization and the industry.

It is not enough for the petitioner to copy the duties that are regularlyassociated with a specialty occupation and then say the beneficiary will beperforming those duties. The service recognizes that certain Accountantpositions are a specialty occupation however, given the size, scope andcomplexity of the petitioners’s organization3, as well as the duties of anaccountant as it relates to the petitioners business, this position does notqualify as a specialty occupation. The beneficiary has not established that abachelor degree is common to the industry in parallel positions amongsimilar organizations or, in the alternative, that the employer showed that itsparticular position is so complex or unique that it can be performed only by

3In their complaint, Plaintiffs assert that Sunshine’s gross annual revenue is more than$6,000,000.00. USCIS has no knowledge of Sunshine’s present gross earnings, but even if that is anaccurate figure, it is irrelevant for purposes of the I-129 it filed seven years ago. In the I-129, Sunshinestated that its gross annual income was “+$100,000.00” and that it employed ten individuals. (Appendixat 4.)



an individual with a degree.

The critical element is not the title of the position or an employer’s selfimposed standard, but whether the position actually requires theoretical andpractical application of a body of highly specialized knowledge, and theattainment of a bachelor’s degree in the specific specialty as the minimumfor entry into the occupation as required by the act.

The petitioner must establish that the position realistically requiresknowledge, both theoretically and applied, which is almost exclusivelyobtained through studies at the institution of higher learning. The depth ofknowledge and length of studies required are best typified by a degreegranted by such an institution at the baccalaureate level. It must bedemonstrated that the position requires a precise and specific course ofstudy, which relates directly and closely to the position in question.

(Id. at 71-74.) The I-539 #2 was denied at the same time because Ramzan’s request to

change status was contingent on the I-129 filed on behalf of Munira. (Id. at 80.)

On appeal from the denial, the AAO’s written dismissal of the appeal clearly

showed that it considered the relevant factors involved in granting or denying an I-129

and clearly articulated the reasons for its decision:

To the extent that they are described in the record, some of the dutiesappear to involve some level of accounting. However, not all positions thatinvolve accounting and are labeled by the employing firm as accountantpositions require a four-year degree in accounting or a related field. Thecritical question is whether performance of the particular position inquestion involves the theoretical and practical application of highlyspecialized accounting knowledge that is attained only by at least abachelor’s degree or its equivalent in accounting or a related specialty.

Not all accounting employment is performed by degreed accountants.Therefore, the performance of duties requiring accounting knowledge doesnot necessarily establish a proffered position as a specialty occupation. Thequestion is not whether the petitioner’s position requires knowledge ofaccounting principles, which it does, but rather whether it is one thatnormally requires the level of accounting knowledge that is signified by at



least a bachelor’s degree, or its equivalent, in accounting or a relatedspecialty.

. . .

While the size of a petitioner’s business is normally not a factor indetermining the nature of a proffered position, both level of income andorganizational structure are appropriately reviewed when a petitioner seeksto employ an H-IB worker as an accountant. In cases where a petitioner’sbusiness is relatively small, the AAO reviews the record for evidence thatits operations are, nevertheless, of sufficient complexity to indicate that itwould employ the beneficiary in an accounting position requiring a level offinancial knowledge that may be obtained only through a baccalaureatedegree in accounting or its equivalent.

(Id. at 131-32.)

The AAO pointed out that, in the RFE, Sunshine was given an opportunity to

provide evidence to establish that the proffered position was a specialty occupation.

Instead of taking advantage of the opportunity, however, Sunshine merely provided a

more extensive description of the duties of an accountant, in general, many of which did

not seem to be related to Sunshine’s business. It was not apparent to the Director or the

AAO how duties such as coordinating efforts with sales representatives to target new

sales territories and advising sales representatives in matters such as import and export

regulations related to the position at Sunshine. Sunshine also failed to provide evidence

of the industry standard as it relates to its organization, the name of the person(s) who

had previously provided accounting services for Sunshine, and whether he or she had a

bachelor’s degree.

The AAO further pointed out that Sunshine neither provided an explanation of the



processes and knowledge that Munira would apply in the performance of the proposed

position, nor described or provided examples of specific matters of its business and

explained how Munira’s work on such matters would correlate with highly specialized

knowledge only attained by achieving a bachelor’s degree, or its equivalent, in a specific

specialty. (Id. at 133.) The record showed that Sunshine is a company involved in

convenience store retail sales, employed ten persons, and earned a gross annual income of

“+$100,000.” (Id. at 134.) Sunshine failed to provide evidence to support its assertion

that it had numerous daily financial transactions that necessitated the hiring of a person

with a bachelor’s degree in accounting. Indeed, the only evidence of record regarding

financial transactions are tax documents supporting Sunshine’s claims that it has ten

employees. (Id.) There are no tax documents regarding its income and no evidence that

it has more than one convenience store, as Sunshine alleged in the petition. (Id.)

Further, although whether a position qualifies as a specialty occupation is not dependent

on the petitioning entity’s size, the level of income generated by the petitioner has a direct

and substantial bearing on the scope and depth of the proposed duties. (Id.)

Responsibility for income of $100,000 differs vastly from responsibility associated with a

far larger income or from a firm that is responsible for the accounting work of many

clients. (Id.)

The AAO’s sustaining of the denial of the I-129 was well-reasoned and factually

specific. Sunshine failed to provide the appropriate evidence to support its I-129.

C. Mandamus Relief is Not Available.



Because it is USCIS’s decision to determine if the application should be granted,

and the granting of an I-129 is within the discretion of USCIS, Sunshine also fails to

show any right to a writ of mandamus. “Mandamus is an appropriate remedy ‘only when

the plaintiff’s “claim is clear and certain and the duty of the officer is ministerial and so

plainly prescribed as to be free from doubt.”’ Thus, mandamus is not available to review

the discretionary acts of officials.” Giddings v. Chandler 979 F.2d 1104, 1108 (5th Cir.

1992) (internal citations omitted). Sunshine does not have a clear right to relief, and

USCIS’s decision on the I-129 was not ministerial. Moreover, the decision on the I-129

was within the discretion of USCIS. The Plaintiffs are not entitled to a writ of

mandamus.

D. Declaratory Relief is Not Available.

The Plaintiffs also cannot show a right to relief under the Declaratory Judgment

Act. Sherwin-Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003). A

declaratory judgment is inappropriate solely to adjudicate past conduct. Sherwin-

Williams Co. v. Holmes County, 343F.3d 383 (5th Cir. 2003).



E. No Relief is Available.

The I-539 #2 filed concurrently with the I-129 was dependent on the I-129.

(Appendix at 80.) Because the denial of the I-129 was appropriate, the concurrent denial

of the I-539 #2 was similarly appropriate.

There is no genuine issue of material fact regarding what evidence was submitted

to USCIS for the I-129 and the basis for the denial. USCIS properly denied the

applications. USCIS is entitled to judgment as a matter of law.4

The I-539 #1

A. The Decision to Deny Was Not An Error as a Matter of Law.

The grant or denial of an I-539 is at the discretion of USCIS. “Where an applicant

or petitioner demonstrates eligibility for a requested extension, it may be granted at the

discretion of the Service. There is no appeal from the denial of an application for

extension of stay filed on Form I-129 or I-539.”5 8 C.F.R. § 214.1(c)(5). Because the

decision is at the discretion of the USCIS, the denial of the I-539 #1 cannot be an error as

a matter of law. Moreover, the APA does not apply to agency action committed to

agency discretion. 5 C.F.R. § 701(a)(2).

B. The Decision to Deny Was Not Arbitrary and Capricious.

4Plaintiffs also asked for approval of their applications nunc pro tunc. Even if USCIS had abusedits discretion when it denied the applications, Plaintiffs cannot obtain approval nunc pro tunc. This Courtdoes not have authority to approve the I-129 and I-539 nunc pro tunc. Romero-Rodriguez v. Gonzales,488 F.3d 672 (5th Cir. 2007).

5The regulation was word-for-word the same at the time the Alis’s application was denied. 8C.F.R. § 214.1(c)(5) (2003).



The B-2 visitor authorization on which Ramzan and Munira Ali entered the United

States in October of 2003 expired on April 11, 2004. Nine days before the expiration of

their visitor status, on April 2, 2004, they filed an I-539 Application to Extend

Nonimmigrant Status, seeking to extend their visit until October 10, 2004. (Id. at 154.)

They stated on the application that “[w]e will not be working in the United States . . . Our

stay in United States will be temporary and we do not intend to stay here longer than our

authorized time.” (Id. at 156.) In the letter that accompanied the I-539 #1, the Alis’s

attorney stated, “Mr. Ali is requesting an extension of his visa in order to have additional

time to visit friends and family and assist his wife during her recovery period.” (Id. at

158.) Included in the Application package was a letter from a doctor, dated 30 days

earlier on March 2, 2004, which stated, “The patient stated above is currently under my

medical care. She recently had surgery and I do not feel that it is advisable for her to

travel at this time. We’ll advise your company when we feel that this patient can travel

safely.” (Id. at 163.) Nothing was stated on the I-539 #1 form itself that indicated that

Munira had had surgery or was ill. Neither the attorney’s letter nor the doctor’s letter

revealed why Munira was under medical care.

On August 30, 2004, USCIS denied the I-539 #1. (Id. at 165-66.) In the denial

letter, the Director specifically pointed out the information that should have been

provided regarding Munira’s medical situation if they had wanted to use it as a reason to

extend their B-2 visitors status. No information was provided as to (1) the type of

treatment she was undergoing and when that treatment would end, (2) whether Munira



could obtain that type of care in her home country, (3) whether she was unable to fly

because of her medical condition, and (4) proof of her actual medical bills. (Id. at 165.)

In the denial letter, the Director also (1) cited the statement on the I-539 #1 that the

Alis would not be working in the United States and (2) referenced the I-129 petition filed

on behalf of Munira indicating the exact opposite. (Id. at 165-66.) The Director stated

that “[t]his action strongly suggests that through your attorneys, you submitted your

applications primarily to circumvent the immigration laws of the United States.” (Id. at

166.)

The I-539 #1 was denied because the Alis did not prove that they intended to

depart the United States. (Id.) They failed to establish that the purpose for which they

had been admitted to the country had not been accomplished and that their request for an

extension of stay was not merely an attempt to prolong their stay indefinitely. (Id.) The

Alis were directed to make immediate arrangements to depart the United States. (Id.)

There is no appeal from the denial of an I-539. 8 C.F.R. § 103.5. The Alis were

informed that they had no appeal rights but that they could file a motion to reopen or

reconsider the application within 30 days of the decision to deny. (Appendix at 166.)

The Alis filed a motion to reopen the application after the deadline, on October 5, 2004.

(Id. at 168.) Attached to the motion to reopen was another letter from Munira’s doctor

explaining that Munira had had a cesarean section on February 4, 2004, and was advised

not to travel for eight weeks after the surgery. (Id. at 170.) The doctor also advised that

the Alis’s baby was approved for travel in May, 2004. (Id.)



The attorney who filed the motion to reopen was not the same one who had filed

the I-539 #1 and was not the attorney or representative of record. (Id. at 172.) The Alis

did not sign the motion themselves. (Id.) The regulations require that “A motion must be

in writing and signed by the affected party or the attorney or representative of record, if

any.” 8 C.F.R. § 103.5(a)(1)(ii)(A). The motion to reopen, therefore, was not a properly

filed motion to reopen. (Id. at 172.) The motion was dismissed because the Alis failed to

overcome the basis for the original denial and because it was improperly filed. (Id.)

Further, the decision to deny the I-539 #1 was not arbitrary and capricious:

1. The application contained no information regarding Munira’s medical

condition, yet the attorney’s letter stated that that was at least one of the reasons for

staying.

2. The application also specifically stated that they would not be working in the

United States and, yet, two months later Sunshine filed an I-129 application for Munira to

stay and work.

3. The application asked for an extension of the B-2 visitor status to October 10,

2004. Sunshine’s I-129 asked for the H-1B visa to begin October 1, 2004.



4. The doctor’s March 2, 2004, letter that accompanied the I-539 #1 was vague

and did not state what Munira’s medical condition was or that the advice against traveling

was for only eight weeks after her February 4, 2004, surgery.

5. The I-539 #1 was filed on April 2, 2004. The 56th day (eight weeks) after

Munira’s February 4th surgery is March 31, three days before they submitted the

doctor’s March 2 letter to USCIS, failing to reveal that the advice against traveling was

no longer valid–and also appearing to cover up the fact that Munira had given birth.

6. When it was eventually discovered (in the motion to reopen filed in October)

that Munira had given birth, it was also discovered that the baby had been cleared to

travel the previous May.

7. Seven years later, the Alis are still in this country, having lived here illegally

since the denial of their I-539 #1.

All of the reasons given for the I-539 #1 and all of the actions taken in connection

with it support the Director’s decision that the I-539 #1 was filed primarily to circumvent

the immigration laws of the United States and that the Alis were attempting to prolong

their stay in the United States indefinitely. The reasons given for denying the I-539 #1

were rationally related to the facts. The denial was not arbitrary and capricious. See

Verity, 853 F.2d at 327. And although the Director did not know they would still be here

in 2011, the fact that they are still here and have been out of status all of this time, only



serves to support the Director’s conclusion and confirms that the conclusion was not

arbitrary and capricious.

C. Mandamus Relief is Not Available.

Because it is USCIS’s decision to determine if the application should be granted,

and the granting of an I-539 is within the agency’s discretion, the Alis also fail to show

any right to a writ of mandamus. “Mandamus is an appropriate remedy ‘only when the

plaintiff’s “claim is clear and certain and the duty of the officer is ministerial and so

plainly prescribed as to be free from doubt.”’ Thus, mandamus is not available to review

the discretionary acts of officials.” Giddings v. Chandler, 979 F.2d at 1108 (internal

citations omitted). The Alis do not have a clear right to relief, and the USCIS’s decision

on the I-539 #1 was not ministerial. Moreover, the decision was within the discretion of

USCIS. The Alis are not entitled to a writ of mandamus.

D. Declaratory Relief is Not Available.

The Alis also cannot show a right to relief under the Declaratory Judgment Act. A

declaratory judgment is inappropriate solely to adjudicate past conduct. Sherwin-

Williams Co., 343F.3d 383.

There is no genuine issue of material fact regarding what evidence was submitted

to USCIS for the I-539 #1 and the reasons USCIS denied it. USCIS properly denied the

application. USCIS is entitled to judgment as a matter of law.



CONCLUSION

USCIS’s actions have not been arbitrary or capricious. There are no genuine

disputes as to any material fact. USCIS, therefore, is entitled to judgment as a matter of

law.

Respectfully submitted,

JAMES T. JACKSUNITED STATES ATTORNEY

/s/ Angie L. Henson ANGIE L. HENSONAssistant United States AttorneyTX SBN: 094929001100 Commerce Street, Third FloorDallas, Texas 75242Telephone: 214.659.8600Facsimile: 214.659.8807Email: [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on September 23, 2011, I electronically filed the foregoingdocument with the clerk of court for the U.S. District Court, Northern District of Texas,using the electronic case filing system of the court. I also certify that a copy of thisdocument was served upon all opposing parties, or their attorneys of record, by electronicdelivery on this 23rd day of September, 2011.

/s/ Angie L. Henson Angie L. HensonAssistant U.S. Attorney



Case 3:09-cv-01352-G Document 1 Filed 07/17/09 Page 1 of 13 PageID 1I"\, )

~~~¥P~ , -'iJNITEDSTATESDISTRICTCOURT \¢\b . NORTHERN DISTRICT OF TEXAS DALLAS, TEXAS

SUNSHINE STORES, INC., RAMZAN ALI, and MUNIRA RAMZAN ALI

Plaintiffs

v.

) ) ) ) ) ) ) ) ) )

ERIC HOLDER, U.S. Attorney General, ) JANET NAPOLITANO, Secretary, ) U.S. Department of ) Homeland Security, ) MICHAEL AYTES, Deputy Director, ) U.S. Citizenship and Immigration Services, ) and ) DAVID ROARK, Director, ) U.S. Citizenship and Immigration ) Services, Texas Service Center ) MARK HAZUDA, Acting Director U.S. Citizenship and Immigration ) Services, Vermont Service Center ) ----------------~D=e=£=en=d=a=n=ts~ ___ )

.1. __ ::>. l)~~ 1:'1\ L t}L .~~z ~.

''<0Ki i:iEkl'\i DlSH<.iCT Of TEXA:-.

I FILED

I JUL 11-2009

O..j~ DISTRICT CotJR.T

Deputy ·

3·09CV1352- G Case No. ____________ __

PLAINTIFFS' ORIGINAL COMPLAINT FOR WRIT OF MANDAMUS AND DECLARATORY RELIEF

COMES NOW, SUNSHINE STORES, INC., RAMZAN ALI, AND

MUNIRA RAMZAN ALI, Plaintiffs in the above-styled and numbered cause, and

for cause of action would allege the following:

1


INTRODUCTION

1. This action is brought to compel Defendants to lawfully adjudicate Form I-

129 (Hl-B - Petition for a Nonimmigrant Worker) and Form I-539 (B-2 -

Application to Extend/Change Nonimmigrant Status) under which Plaintiff

Munira Ramzan Ali is the beneficiary. Plaintiffs have a clear right to the

relief requested; the Defendants have a clear duty to perform the act in

question; and no other adequate remedy is available. The applications were

filed with the United States Citizenship and Immigration Services

(hereinafter "USCIS" or "the Service") and remain within the jurisdiction of

the Defendants, who have unlawfully denied said applications to Plaintiffs'

detriment.

2. Further, this action is brought seeking declaratory judgment against the

Defendants on the basis that the USCIS, as a matter of law, unlawfully

deprived the Plaintiff Sunshine Stores, Inc., of an employee; the Plaintiff

Munira Ramzan Ali of employment; and Plaintiff Munira Ramzan Ali and

Plaintiff Ramzan Ali the proper adjudication of Form I-539 and Form I-129

and, subsequently, Form I -485.

PARTIES

3. Established in 1999, Plaintiff Sunshine Stores, Inc., is a Texas-based retailer

with revenues grossing over $6,000,000 annually. Plaintiff Sunshine Stores,

2


Inc., has separate locations m cities throughout Texas, namely: San

Augustine, Newton, Jasper, Nacogdoches, Brookland, and Pineland.

Plaintiff Sunshine Stores, Inc., is headquartered in Brookland, Texas.

4. On June 10, 2004, Plaintiff Sunshine Stores, Inc., filed Form I-129 with the

USCIS seeking to hire Plaintiff Munira Ramzan Ali on an H-1B as an

accountant.

5. PlaintiffRamzan Ali, a thirty-three year old native and citizen of India, is the

husband of Plaintiff Munira Ramzan Ali. Plaintiff Ramzan Ali filed an

application for a B-2 Visa that allowed his wife and him to enter the United

States on October 12, 2003. On or about April2, 2004, PlaintiffRamzan Ali

filed a Form I-539 (Application to Extend/Change Nonimmigrant Status) to

extend the B status. On or about August 30, 2004, the USCIS denied the

Form I-539 filed by Plaintiff Ramzan Ali. Plaintiff Ramzan Ali lives in

Lafayette, Louisiana.

6. Plaintiff Munira Ramzan Ali is a thirty-three year old native and citizen of

India. On October 12, 2003, she entered the United States on a visitor's visa

with her husband, Plaintiff Ramzan Ali. She is the beneficiary of Form I-

129 filed by Plaintiff Sunshine Stores, Inc., with the USCIS on June 10,

2004. She resides in Lafayette, Louisiana.

7. Defendant Eric Holder is Attorney General of the United States, and this

3


action is brought against him in his official capacity. Defendant Holder is

generally charged with enforcement of the Immigration and Nationality Act

and is further authorized to delegate such powers and authority to

subordinate employees of the Department of Homeland Security. See

Homeland Security Act of 2002, Public Law 107-296. More specifically,

the Attorney General is responsible for the adjudication of immigrant and

nonimmigrant petitions filed pursuant to the Immigration and Nationality

Act. The users is an agency within the U.S. Department of Homeland

Security to whom the Attorney General's authority has in part been

delegated and is subject to the Attorney General's supervision.

8. Defendant Janet Napolitano is Secretary of the U.S. Department of

Homeland Security, and this action is brought against her in her official

capacity. Defendant Napolitano is generally charged with the enforcement of

the Immigration and Nationality Act, as those duties have been delegated to

her Department in accordance with the Homeland Security Act of 2002.

9. Defendant Michael Aytes is users Deputy Director and is currently the

highest ranking users official, and this action is brought against him in his

official capacity. Defendant Aytes is generally charged with supervising the

execution of duties delegated to users by the Attorney General and

Secretary of the U.S. Department of Homeland Security.

4


10. Defendant David Roark, Director of the Texas Service Center, is a USCrS

official who is generally charged with supervisory authority over all

operations within the Service's Texas Service Center.

11. Defendant Mark Hazuda, Acting Director of the V ennont Service Center, is

a users official who is generally charged with supervisory authority over

all operations with in the users' Vermont Service Center.

JURISDICTION

12. Jurisdiction in this case is proper under 28 U.S.C. §§ 1331 and 1361. Relief

is requested pursuant to said statutes.

13. Jurisdiction in this case is proper under 5 U.S.C. § 551 et seq., 28 U.S.C. §§

1331 and 1361,5 U.S.C. § 701 et seq., and 28 U.S.C. § 2201 et seq. Relief is

requested pursuant to said statutes. Jurisdiction is also conferred by 5 U.S.C.

§ 706. A district court reviewing agency action may hold unlawful and set

aside agency action that, inter alia, is found to be: "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. §

706(2)(A); "or without observance of procedure required by law, 5 U.S.C. §

706(2)(D). "Agency action" includes in relevant part, "an agency rule, order,

license, sanction, relief or the equivalent or denial thereof, or failure to act."

5 U.S.C. § 551(13).

5


14. The aid of the Court is invoked under 28 U.S.C. §§ 2201 and 2202,

authorizing declaratory judgment.

VENUE

15. Venue is proper in this court, pursuant to 28 USC§ 1391(e), in that this is an

action against officers and agencies of the United States in their official

capacities, brought in the District where a Defendant resides and where a

substantial part of the events or omissions giving rise to Plaintiffs' claim

occurred. More specifically, the Plaintiffs' petitions were filed in and

unlawfully denied by the USCIS Texas Service Center located in Dallas,

Texas, which falls within this tribunal's jurisdiction.

EXHAUSTION OF REMEDIES

16. Plaintiffs have exhausted their administrative remedies. On April 2, 2004,

Plaintiff Ramzan Ali filed an extension application for the B-2. On August

30, 2004, the B-2 application was denied. On December 16, 2004, the

USCIS erroneously denied the motion to reopen the I-539 application.

17. On June 10, 2004, Plaintiff Sunshine Stores, Inc., filed a Form I-129 for

Plaintiff Munira Ramzan Ali. On September 1, 2004, the Service denied the

Form I-129 petition on the basis that the proffered position was not that of a

"specialty occupation."

6


18. On October 5, 2004, Plaintiff Sunshine Stores, Inc., filed Motions to Re

open the denial of the I-129 (H-lB) and H-4. On December 31, 2004,

USCIS denied the motions. On December 23, 2004, Plaintiff Sunshine

Stores, Inc., appealed the decision to the AAO. On July 27, 2006, the AAO

denied the appeal. On August 29, 2006, Plaintiff Sunshine Stores, Inc., filed

a motion to reopen the AAO decision. On November 17, 2006, the motion

was denied. A request was made to reopen the case which was accepted and

the AAO denied the motion on February 8, 2008. Another motion to re-open

was denied on March 18, 2009.

REMEDY SOUGHT

19. Plaintiffs seek to have the court to compel the Defendants to lawfully

adjudicate the Form I-129 and Form I-539 under which Plaintiff Munira

Ramzan Ali is the beneficiary. Although 28 U.S.C. § 1361 does not

authorize injunctive relief, mandamus jurisdiction permits a flexible remedy.

The same complaint may request declaratory, injunctive, and mandamus

relief.

20. Furthermore, the Plaintiffs seek a judgment from the court to declare the

actions of the users unconstitutional or illegal due to their failure to

comply with the applicable law. 28 U.S.C. § 2201.

7


CAUSE OF ACTION

21. All legal prerequisites having been satisfied. On April 2, 2004, Plaintiff

Ramzan Ali filed an extension application for the B-2. On June 10, 2004,

Plaintiff Sunshine Stores, Inc. filed a petition for nonimmigrant worker

(Form I-129) on behalf ofPlaintiffMunira Ramzan Ali.

22. Plaintiffs are members of the distinct class of people within the zone of

interest of Section 101(a)(15)(B) and Section 101(a)(15)(H)(i)(b) of the

Immigration and Nationality Act.

23. Specifically, PlaintiffRamzan Ali is a member of the class of aliens who are

eligible to benefit from the filing of Form I-539. As such, Defendants owed

a duty to Plaintiff Ramzan Ali to adjudicate the I-539 in accordance with the

applicable statutes and regulations

24. Plaintiffs are members of the class of professional aliens, employers, and

spouses who are eligible to benefit from a Form I-129. As such, Defendants

owed a duty to Plaintiffs to adjudicate the I-129 petition in accordance with

the applicable statutes and regulations.

25. In denying the I-539, the Defendant's erred as a matter oflaw. The denial of

the request for extension of the B status because of the filing of a Form I -129

(H-lB) was erroneous as a matter of law because applications for H-lB

allow dual intent. Under the dual intent doctrine, a nonimmigrant may have

8


both immigrant and nonimmigrant intent. Matter of H-R-, 7I&N Dec. 651,

654 (R.C. 1958). The doctrine of dual intent is recognized by USCIS for H

visa categories. 8 C.P.R. §§ 214.2(h)(16); Cable, DOS, 91-State-171115, ,-r 5

(May 24, 1991), reprinted in 68 No. 21 Interpreter Releases 681-84 (June 3,

1991) (finding by the Department of State that if the H-1 obtained a change

of status, the fact that s/he "is the beneficiary of an application for

preference status filed under section 204 or has otherwise sought permanent

residence in the United States shall not constitute evidence of an intention to

abandon a foreign residence for purposes of obtaining a v1sa as a

nonimmigrant"; see also Cable, DOS, 92-State-193038 (June 17, 1992),

reprinted in 69 No. 27 Interpreter Releases 872-73 (July 20, 1992) (stating

that the Department of State has long recognized the concept of "dual

intent").

26. When the USCIS denied the I-539, the USCIS erroneously imputed the

intent of Plaintiff Sunshine Stores, Inc., upon Plaintiff Munira Ramzan Ali

when the USCIS erroneously adjudicated the I-539 filed by PlaintiffRamzan

Ali. Plaintiff Sunshine Stores, Inc.-not Plaintiff Munira Ramzan Ali-filed

the I-129.

27. The denial of the H-1B as a matter of law was an error because an

accountant is a specialty occupation. A "specialty occupation" includes the

9


definition of professional. The Board has consistently found that the

position of an accountant is a professional position with the statutory

definition set forth at 8 C.F.R. § 214.2(h)(4)(ii); Matter of Arjani, 12 I&N

Dec. 649 (R.C. 1967); Matter of Doultsinos, 12 I&N Dec. 153 (DD 1957).

Whether the position is professional is unrelated to the size of the company

or whether it has previously employed personnel in the position. Young

China Daily v. Chappell, 742 F.Supp. 552 (N.D.Cal. 1989). An

"accountant" by itself is a position which is characterized as a "specialty

occupation" by the USCIS. According to the H-1B Handbook, 2009

Edition, by Austin T. Fragomen, Jr., Caren Shannon, and Daniel Montalvo,

at § 3:12: Proof and supporting documentation concerning whether an

accountant constitutes a "specialty occupation" need not be submitted.

28. Given the statutes, the regulations, and respected immigration treatises,

Plaintiff Sunshine Stores, Inc., -a company that earns millions of dollars

per year-requires an accountant. In support of the need for an accountant,

Plaintiff Sunshine Stores, Inc., provided proof that the position of accountant

was held previously by Richard Chamberlain, a CPA who performed this

service for Plaintiff Sunshine Stores, Inc.

29. Defendants owe Plaintiff a duty to lawfully and judiciously adjudicate the

Form I-539 and the Form I-129 in a manner that does not violate 5 U.S.C. §

10


706(2)(A). Defendants violated this statutory duty by erroneously denying

Plaintiffs' Fonn I-539 and Form I-129 due to the misapplication of the

applicably statutes and regulations. The actions of Defendants in this case

are, as a matter of law, arbitrary, capricious, and not in accordance with law.

30. As a result of Defendants' arbitrary, capricious, and unlawful actions, the

applicable statutes and regulations have not been implemented in this case

and Plaintiffs have been unlawfully deprived of the opportunity to employ a

needed candidate to work.

31. The actions of the Defendants seem particularly arbitrary, capricious, and

unlawful given the following: On October 28, 2005, Plaintiff Sunshine

Stores, Inc., filed an ETA Form 9089 (Application for Permanent

Employment Certification) for Plaintiff Munira Ramzan Ali. On February

16, 2006, the U.S. Department of Labor Employment and Training

Administration certified the Form ETA 9089. On July 10, 2006, Plaintiff

Sunshine Stores, Inc., filed an I-140 pursuant to INA Section 203(b)(3)(A)(i)

on behalf of the Plaintiff Munira Ramzan Ali. On February 26, 2007, the

USCIS approved the I-140 filed by Plaintiff Sunshine Stores, Inc .. If

Plaintiff Munira Ramzan Ali's qualifications are sufficient for the purpose of

the labor certification and the I-140, why not for the I-129?

32. Plaintiffs have been greatly damaged by the failure of Defendants to act in

11


accordance with their ministerial duties under the law.

(a) Plaintiff Sunshine Stores, Inc., has been unlawfully deprived of the

rights, benefits, and privileges associated with the employment of a

capable and specifically qualified employee.

(b) Plaintiff Munira Ramzan Ali has been unlawfully deprived of the

rights, benefits and privileges associated with lawful employment in

the United States. She has been unlawfully deprived of the

opportunity to pursue lawful employment in the United States and the

ability to maintain lawful status in the United States.

(c) Plaintiff Ramzan Ali has been unlawfully deprived of the rights,

benefits, and the privileges associated with the adjudication of his

Form I-539 and, subsequently, his ability to maintain lawful status in

the United States.

33. The Defendants, in violation of the Administrative Procedures Act, 5 U.S. C.

§ 701 et seq., unlawfully denied Plaintiffs' petitions and have failed to

properly carry out the adjudicative functions delegated to them by law with

regard to the Plaintiffs' case.

PRAYER

34. WHEREFORE, in v1ew of the arguments and authority noted herein,

Plaintiffs respectfully pray that the Defendants be cited to appear herein and

12


that, upon due consideration, the Court enter an order:

(a) declaring unlawful Defendants' erroneous adjudication of Plaintiffs

I-539 petition and approve nunc pro tunc the B-2 status extension;

(b) declaring unlawful Defendants' erroneous-adjudication of Plaintiffs

I-129 petition and approve nunc pro tunc the H-lB status;

· (c) requiring Defendants to adjudicate Plaintiffs' petition for a

nonimmigrant worker on the merits and based on the evidence

properly and timely submitted;

(d) requiring that the Defendant's hold in abeyance the adjudication of the

I-485 pending the outcome of the present action;

(e) awarding Plaintiffs reasonable attorney's fees and costs; and

(f) granting such other relief at law and in equity as justice may require.

This 16th day of July, 2009.

13

identifying data deleted to prevent clearly unw~~ invasion of personal prrva ~,

pUBLIC COPY

FILE:

INRE:

SRC 04 176 50073

Petitioner: 1

Beneficiary:

U.S. Department of Homeland Security 20 Mass. Ave., N.W., Rm. 3000 Washington, DC 20529

U.S. Citizenship and Immigration Services

Office: TEXAS SERVICE CENTER Date: fEB 0 8 2008

PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C. § 110l(a)(l5)(H)(i)(b)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office.

Robert P. Wiemann, Chief Administrative Appeals Office

www.uscis.gov

SRC 04 176 50073 Page2

DISCUSSION: The service center director denied the nonimmigrant visa petition and the Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is again before the AAO on motion to reopen/reconsider. The motion will be dismissed.

The petitioner is a retail sales company. It seeks to employ the beneficiary as an accountant and endeavors to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 10l{a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The director denied the petition on the ground that the proffered position is not a specialty occupation. The AAO affirmed the director's findings.

The regulation at 8 C.F.R § 103.5 provides in pertinent part that "a motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." "New" facts are those that were not available and could not reasonably have been discovered or presented in the previous proceeding. A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). The petitioner's motion does not meet the above cited regulatory requirements in that the motion to reopen is not supported by new facts that were unavailable that could not reasonably have been discovered or presented in previous proceedings. In support of its motion, the petitioner submitted an opinion from a credentials evaluation service which concludes that the duties of the proffered position can only be performed by an individual with a bachelor's degree in business administration, accounting or a related field. The opinion letter is dated August 24, 2006, subsequent to the issuance of the AAO's decision dismissing the petitioner's appeal. The opinion does not contain, or reference, new facts in support of the Form I-129 petition that were unavailable and could not reasonably have been discovered or presented in previous proceedings. The opinion writer simply offers an opinion on the educational requirements of the position based on facts already in existence when the AAO issued its original decision on July 27, 2006. The petitioner could have requested an expert opinion to support its petition based on the facts considered by the credentials service opinion writer at any time during previous proceedings. The motion to reopen shall be dismissed.

A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or CIS policy; and (2) establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).

The motion does not establish that the prior decision was based on an incorrect application of law or CIS policy, nor does it establish that the decision was incorrect based on the evidence of record at the time of the initial decision. The petitioner did not cite any precedent decisions supporting its motion. The record reflects, and the prior decision correctly states, that the proffered position does not qualify as a specialty occupation under 8 C.F.R. § 214.2(h)(4)(iii)(A).

A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). In visa petition proceedings, the burden of proving eligibility remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.

SRC 04 176 50073 Page 3

ORDER: The motion is dismissed. The previous decision of the AAO dated July 27, 2006 is affirmed. The petition is denied.

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