The opinion of the court was delivered by: SWEET
Plaintiffs London Typographers, Inc. ("petitioner" or "London Typographers") and Dinshaw Sachinvala ("beneficiary" or "Sachinvala") bring this action to challenge the final decision of defendants Charles C. Sava ("District Director"), New York District Director of the Immigration and Naturalization Service ("INS") and Stanley E. McKinley, Eastern Regional Commissioner of the INS ("Regional Commissioner"), seeking a reversal of the denial of Sachinvala's visa petition. Petitioner and beneficiary have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., claiming that the denial of the immigration petition was arbitrary and capricious, although the moving papers fail to include a Local Rule 3(g) statement setting forth undisputed material facts and fail to include a memorandum of law setting forth points and authorities in support of its motion as is required by Local Rule 3(b). The INS has cross-moved for judgment on the pleadings pursuant to Rule 12(c) Fed.R.Civ.P., seeking a declaration that the denial of the immigrant visa was in accordance with the statutory directives of the Immigration and Nationality Act ("the Act") and was not an abuse of discretion. For the reasons set forth below, petitioner and beneficiary's motion for summary judgment is denied, and the cross motion to dismiss is granted.
London Typographers filed this action on June 3, 1985 and served a summons and complaint on the District Director of the U.S. Immigration and Naturalization Service on June 5, 1985. On September 19, 1985 London Typographers filed a notice of motion for a default and summary judgment pursuant to Rule 55 and 56, Fed.R.Civ.P., which was granted by memo endorsement of this court on October 7, 1985, no opposition having been filed. On the same day, however, Michael D. Patrick, Special Assistant United States Attorney, wrote to the court to explain the reasons for defendants delayed response, which letter was received on October 14, 1985 and treated as a motion to reargue pursuant to Rule 55(c) and 60(b), Fed.R.Civ.P., and granted on October 14, 1985. On November 21, 1985 the INS filed its notice of motion or an order granting judgment on the pleadings, argued before this court on November 22, 1984.
Aliens seeking to immigrate to the United States must obtain an immigrant visa pursuant to the preference system set up by Congress in Section 203 of the Immigration and Naturalization Act (the "Act"), 8 U.S.C. § 1153. The sixth preference category, the section under which the beneficiary sought his exemption, provides:
(6) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 201(a), to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.
A prerequisite to a sixth preference visa classification is a certificate from the department of Labor ("DOL") pursuant to 8 U.S.C. § 1182(a)(14), section 212(a)(14) of the Act, that there are insufficient United States workers to fill the position which the petitioner offers the beneficiary, and that the employment offered will not adversely affect the wages or working conditions of workers in the United States. The Attorney General is charged with the responsibility of approving the visa application under the preference category. Section 204 of the Act provides in relevant part:
(a) . . . any person desiring and intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203(a)(6) may file a petition with the Attorney General for such classification . . . . (b) After an investigation of the facts in each case, and after a consultation with the Secretary of Labor with respect to petitions to accord a status under section 203(a)(3), or (b), the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made . . . is eligible for a preference status under section 203(a), approve the petition. . .
8 U.S.C. § 2.1 delegates all of these investigatory powers of the Attorney General to the INS if they relate to the immigration and naturalization of aliens.
The facts of this action, contained in the administrative record of the proceedings below, constitute the only evidence upon which this court may adjudicate. Navarro v. District Director, 574 F.2d 379, 383 (7th Cir.), cert. denied, 439 U.S. 861, 58 L. Ed. 2d 170, 99 S. Ct. 182 (1978); Black Construction Corp. v. INS, 746 F.2d 503, 505 (9th Cir. 1984).
On December 21, 1979, the petitioner London Typographers filed an application for alien employment with the DOL, asserting that it needed an employee with four years of experience as a "compositor-typesetter-proofreader" of the Persian, Urdu, Gujrati and Hindi languages. The petitioner identified Dinshaw Sachinvala, a Pakistani citizen, as the beneficiary of the application, and stated that it would employ Sachinvala on a full-time basis at a salary of $11,700.00. Pursuant to section 212(a)(14) of the Act, the DOL certified that there were insufficient workers to fill the typesetting position and that Sachinvala's employment would not adversely affect the working conditions or wages of workers in the United States.
On November 18, 1980, petitioner and beneficiary submitted an I-140 petition to classify Sachinvala as eligible for sixth preference status under the Act. Along with this application, Sachinvala submitted several documents relevant to his qualifications for the job, including a memorandum dated May 4, 1970 from a person who identified himself as the managing partner of a business under the name of Jupiter Services. The memo in pertinent part provided:
This is to certify that Mr. Dinshaw R. Sachinvala s/o Rustchjee H. Sachinvala was appointed on 1st October 1965 at our press for Typesetting and Proofreading. He worked in this position for 8 months and later even undertook to perform electric control repairs of press equipments. During the 4 1/2 years that he worked for us we found him enterprising, enthusiastic and very cooperative. He knows Gujrati, Urdu and Persian in addition to of course a good knowledge of English.
(emphasis supplied). The other documents submitted attested to Sachinvala's qualifications as an electronics expert, both for the National Iranian Gas Company and as a founder listed in an advertisement for a "Sachin Institute" also located in Pakistan. London Typographers also submitted documentation in support of the I-140 petition, which included, inter alia, a March 2, 1981 letter from Abraham Mathai ("Mathai") which stated that the beneficiary was employed by London Typographers at $225.00 per week, and a December 21, 1979 letter from the former president Chris A. H. Quirashi in support of the petition.
On March 10, 1981 Mr. Quirashi submitted a second letter to the INS retracting his support for the petition. It stated in relevant part:
I have been informed from Karachi, through my friend that Mr. Sachinvala is a Doctor Phd and never work in printing trade, he runs a Radio School, now his sons are running, and that service certificate requires investigation in Karachi, Pakistan. Mr. Sachinvala, Dinshaw was holding 50% stock of London Typographers, Inc. he has given special deal to new Indian owner of London Typographers, Inc. on condition that he will do his immigration, issuing employment letter etc. . .
The INS required the petitioner to appear for an interview on March 18, 1981. At that interview the attorney for petitioner and beneficiary told the examiner that Quirashi's letter disputing Sachinvala's qualifications was the result of a disagreement between Quirashi and the beneficiary, and that in any event the current president Mathai wished to proceed with the application and the former ...