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VERAS-MEJIA v. BRENNAN

August 25, 1976

Josefa Maria VERAS-MEJIA et al., Plaintiffs,
v.
Peter F. BRENNAN, Secretary of Labor, et al., Defendants



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 Thirty Western Hemisphere aliens who seek admission to the United States have brought this action to obtain the benefits of an order entered in a previous class litigation, Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir.), rev'g 337 F. Supp. 1289 (S.D.N.Y.1972). The application of that order to these plaintiffs presents complex issues which the parties seek to resolve on cross-motions for summary judgment. For the reasons which appear hereafter, the defendants' motion for summary judgment is granted in part and denied in part, and the plaintiffs' cross-motion is denied in all respects.

 A discussion of both the Lewis-Mota suit and the relevant part of the statutory scheme governing immigration is a prerequisite to a comprehensible analysis of plaintiffs' claims in this action. It will also be helpful to discuss the claims of plaintiffs 1 through 9 separately from those of plaintiffs 10 through 30, for the thirty plaintiffs have disparate positions.

 A. The Immigration Process

 A Western Hemisphere alien who seeks to come to the United States and plans to enter the American work-force is required, to be eligible for a visa, to obtain a certificate from the Secretary of Labor determining that there is a need for workers in the alien's field which Americans cannot fill and that the alien's employment will not adversely affect Americans similarly employed. 8 U.S.C. § 1182(a)(14).

 An alien may procure such a certificate in a proper case by presenting proof that he has an actual offer of employment in the United States. 29 C.F.R. § 60.3(c) (1975). To expedite the administration of the labor certification system, however, the Secretary of Labor published three schedules in 1965 and 1967 which set forth categories of employment as to which a determination of the state of the American labor market had been made. See Lewis-Mota v. Secretary of Labor, supra, 337 F. Supp. at 1291 n. 1. Thus, if a scheduled category applies to him, an alien may obtain a labor certificate merely by demonstrating his qualifications for one of the occupations listed in the published schedule without needing to submit proof of a specific job offer. 29 C.F.R. §§ 60.2, 60.3(a) (1975). This alternative process is called precertification.

 Once an alien has complied with the labor certification requirement (or established the applicability of certain exemptions thereto, not relevant here), his visa application is assigned a "priority date." This date determines the alien's place in line for the limited number of visas which are allotted to the many American consulates each month. Given the substantial backlog of visa applications, it may take as long as two years for an alien's application to be reached in the consulate's processing. The application is reached when a visa becomes available to the alien, as determined by the priority date of his application. When applications with his priority date have been reached, an appointment is made for an interview with consular officials at which the alien is given the opportunity to show that he meets all the eligibility requirements for a visa.

 B. The Lewis-Mota Litigation

 On February 9, 1970 the Secretary of Labor issued a Directive which suspended the Schedule C precertification list, one of the schedules previously published, and provided that previously issued certifications pursuant to that schedule would be valid only for a year from the date of their issue or until June 30, 1970, whichever was later. See Lewis-Mota v. Secretary, supra, 469 F.2d at 480. The Secretary had neglected to first publish this order in the Federal Register, and indeed did not do so until February 4, 1971. 34 Fed.Reg. 2462 (1971). The Lewis-Mota plaintiffs, who had relied upon Schedule C to establish their compliance with the labor certification requirement, challenged the Secretary's failure to publish the Directive as a violation of the Administrative Procedure Act, 5 U.S.C. §§ 552, 553. The Court of Appeals sustained their position, and declared "the Directive invalid until 30 days after it was actually published on February 4, 1971, but valid thereafter." Id. at 482.

 Thus, those aliens who were improperly deprived of their Schedule C labor certification in the period from the date their certification expired pursuant to the invalid Directive until March 4, 1971, when the Directive became legally effective, were afforded relief by the Lewis-Mota decision. However, only those aliens for whom visas would have become available in that period were actually harmed by the improper Directive; those who would still have been on the visa waiting list until after March 4 -- those whose applications' "priority dates" would not have been reached in that time period -- were in no way affected by the defectively-promulgated order. Accordingly, on remand the District Court entered a judgment which defined the Lewis-Mota class as consisting of

 
. . . all those aliens who establish, to the satisfaction of the appropriate consular officer, by the production of their original labor precertification endorsed by a consular officer or a true copy thereof, that they were precertified or certified under Schedule C Lists published on or before January 23, 1969, and further, that their priority position would have been reached by March 4, 1971. . . .

 Class members, upon applying for a visa within two years from the date of the judgment, were to be deemed to have satisfied the labor certification requirement. The 30 plaintiffs in the instant suit, alleging that they were members of the Lewis-Mota class, apparently made timely applications for the benefits of the Lewis-Mota judgment, but were refused. The present litigation followed.

 C. Plaintiffs 1 through 9

 There is no dispute concerning the facts underlying the contentions of the first nine plaintiffs, and their claims are therefore ripe for summary judgment. Fed.R.Civ.P. 56(c). Each of the nine has a "priority date" which is at least as early as those of the named plaintiffs in Lewis-Mota, as to whom the defendants ...


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