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HIRD/BLAKER CORP. v. SLATTERY

May 13, 1991

HIRD/BLAKER CORPORATION, CHYE ONG LIM, PLAINTIFFS,
v.
WILLIAM S. SLATTERY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

The plaintiffs, Hird/Blaker Corporation ("Hird/Blaker") and Chye-ong Lim ("Lim"), have moved under Rule 56, Fed.R.Civ.P., for summary judgment to reverse the ruling of William S. Slattery, District Director, Immigration and Naturalization Service (the "INS"), denying Hird/Blaker's application to classify Lim as eligible for temporary worker status as an architectural cost estimator, pursuant to section 101(a)(15)(H)(i) of the Immigration and Nationality Act of 1952, as amended (the "Act"), 8 U.S.C. § 1101(a)(15)(H)(i). The INS has moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. Upon the findings and conclusions set forth below, the motion of the INS is granted and that of Hird/Blaker and Lim denied.

Prior Proceedings

On October 29, 1987 Hird/Blaker petitioned the INS to classify Lim as a non-immigrant temporary worker pursuant to section 101(a)(15)(H)(i) of the Act, thereby qualifying Lim for a non-immigrant H-1 visa under section 214(c) of the Act, 8 U.S.C. § 1184(c). Hird/Blaker stated in its petition that the architectural cost estimator position required a person holding an engineering degree and that the firm had always used an engineer for that job.

On November 5, 1987 the INS advised Hird/Blaker that its petition had failed to establish that the architectural cost estimator position necessarily required an applicant with an engineering degree and directed the firm to resubmit the petition with additional documentation. In response, Hird/Blaker on December 15, 1987 provided the INS a letter describing its requirements for an architectural cost estimator, an architect's affidavit, and excerpts from two Department of Labor publications, the Dictionary of Occupational Titles ("DOT") and Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles.

On January 12, 1988, the INS denied Hird/Blaker's petition, finding that the firm had failed to establish that the architectural cost estimator position required a person of distinguished merit and ability. The ruling stated in pertinent part

  You are seeking the services of the beneficiary to be a cost
  estimator. You contend that the position requires a civil
  engineering degree. The duties described are those similar to
  the duties of a construction contractor. Reading of blue prints
  and cost estimation in the construction industry has been
  learned by apprenticeship and on the job training. Your
  assertion that the positionrequires a baccalaureate is not
  accompanied by evidence that a degree in civil engineering is a
  realistic requirement for the specific position that you are
  offering the beneficiary.

On January 25, 1988, Hird/Blaker appealed the denial to the INS's Administrative Appeals Unit ("AAU"), which affirmed the denial on April 18, 1988. The AAU concluded, "The record is not persuasive the duties of the job cannot be successfully performed by a skilled individual whose education and training falls short of a baccalaureate degree in a specialized area."

This conclusion was made the subject of this action and upon motion of the parties, the court in an Amended Opinion of May 9, 1989 (the "Amended Opinion") directed a remand to the INS. 712 F. Supp. 1095.

The Amended Opinion concluded that the April 18, 1988 finding distinguishing a cost estimator from an engineer was without evidentiary support, as was the finding that there was no evidence that Hird/Blaker has required the services of an engineer in the position of woodworking estimator in the past. The AAU was found to have failed to define an industry standard or a transitional occupation. Familiarity with the Amended Opinion is assumed.

Upon remand, by letter dated November 29, 1989, the AAU requested from Hird/Blaker additional information bearing on the industry standard for architectural cost estimators and whether the position was a transitional occupation. The AAU requested the following information and/or documentation:

  (1) A statement from an organization such as the American
      Society of Professional Estimators or the National
      Estimating Society describing the normal educational
      requirements for the position.
  (2) Evidence of the petitioner's past hiring practices
      establishing they have historically hired members of the
      professions in the proffered position. The evidence should
      be in the form of official personnel records.
  (3) Evidence relating to the hiring practices of similar
      firms in the industry describing their educational
      requirements for the proffered position.

Id. By letter dated January 3, 1990. Hird/Blaker submitted affidavits from Dr. Albert Spencer, a professor in industrial technology at the Eastern Kentucky University, and L. Duane Griffiths, a professor in wood technology and the director of the National Wood Technology Center at Pittsburgh State University as well as an affidavit from James D'Auria, a practicing architect.

Hird/Blaker submitted two resumes of cost estimators employed by Hird/Blaker and the declaration of the controller of Hird/Blaker, Aristotle De La Cruz, which described the experience and education of several individuals employed as cost estimators at Hird/Blaker and various personnel records, including wage and financial ...


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