United States District Court, Southern District of New York
May 13, 1991
HIRD/BLAKER CORPORATION, CHYE ONG LIM, PLAINTIFFS,
WILLIAM S. SLATTERY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. DEFENDANT.
The opinion of the court was delivered by: Sweet, District Judge.
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.
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
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
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 reports and an application for
employment as a cost estimator by one Hird/Blaker employee.
In a decision dated July 16, 1990, the AAU again denied the
petition, determining that Hird/Blaker had failed to establish
that the occupation of architectural cost estimator requires
the services of a professional, that Hird/Blaker had failed to
meet the test for assessing an industry standard, and that
Hird/Blaker had failed to establish that the industry standard
for cost estimating requires a bachelor's degree in engineering
or its equivalent.
The AAU also held that Hird/Blaker failed to show that it had
consistently hired individuals possessing a bachelor's degree
in engineering or its equivalent and further held that
Hird/Blaker had failed to establish that the position
constitutes a transitional occupation.
By motions for judgment on the pleadings and summary judgment
the July 16, 1990 AAU decision was made the subject of review.
These motions were fully submitted and argued on February 15,
The facts were found in the Amended Opinion and remain as set
forth except as supplemented below.
Lim remains a professional with a Bachelor of Science degree in
a major in civil engineering.
The Standard of Review
The alien bears the burden of proof in any administrative
proceeding concerning visa status pursuant to section 291 of
the Act, 8 U.S.C. § 1361. That section provides, in pertinent
Whenever any person makes application for a visa or other
document required for entry . . . the burden of proof shall be
upon such person to establish that he is eligible to receive
such visa or document . . . and if an alien, that he is
entitled to the . . . immigrant . . . status claim . . .
See Tongatapu Woodcraft Hawaii; Ltd. v. Feldman,
736 F.2d 1305
, 310 (9th Cir. 1984); K.C.P. Food Co., Inc. v. Sava,
623 F. Supp. 1080, 1083 (S.D.N.Y. 1985). Thus, as the Second Circuit
has correctly observed in De Los Santos v. INS, 690 F.2d 56
60 (2d Cir. 1982), "[i]t is not the province of the courts to
insist that the INS's interpretations . . . result in the
perfect immigration scheme or even that they be the best
interpretation possible." Simply put, a reviewing court must
not substitute its own judgment and policy preferences for
those of INS officials vested by law with the exercise of
discretionary authority. See Bertrand v. Sava, 684 F.2d 204
217 (2d Cir. 1982).
As stated in the Amended Opinion, an abuse of discretion
standard is applicable. An abuse of discretion is shown only if
the plaintiff establishes that the decision under review was
made without rational explanation, inexplicably departed from
authorities, or rested on an impermissible basis. See Li
Cheung v. Esperdy, 377 F.2d 819, 820 (2d Cir. 1967); London
Typographers, Inc. v. Sava, 628 F. Supp. 570, 576 (S.D.N.Y.
1986). As the court stated in Wong Wing Hang v. INS,
360 F.2d 715, 718 (2d Cir. 1966), an abuse of discretion exists "only
where no reasonable man would take the view under discussion."
Since Lim is concededly a professional, the review must concern
whether the INS abused its discretion in its determination of
the standard by which a professional in an industry is
determined and whether the record failed to support
Hird/Blaker's contentions that an industry standard existed
with respect to woodworking estimator and whether Lim's
predecessor met such a standard. Finally, an issue is presented
as to whether the AAU abused its discretion in determining and
applying its "transitional occupation test."
I. The Industry Standard Applied Was Not An Abuse Of
It must be shown that the position the alien seeks to fill
requires the services of a professional or of someone who is
prominent, renowned, or preeminent in his field. See, e.g.,
Hird/Blacker Corp. v. Sava, 712 F. Supp. 1095, 1098 (S.D.N.Y.
1989) (citing Matter of Caron Int'l, Inc., Interim Decision
No. 3085, at 6). Here, of course, Lim is concededly a
professional, but he and Hird/Blaker must establish that the
job he seeks is a position requiring performance by a
First, the position must require a degree that involves a
"precise and specific course of study which relates directly
and closely to the position in question." Matter of Michael
Hertz Assocs., Interim Decision No. 3046, at 3 (Comm. 1988).
An occupation that requires a general degree such as business
administration or liberal arts, therefore, is not a
"profession." See id. at 3; see also Caron Int'l, Interim
Decision 3085, at 8 (Comm. 1988) (finding that vice president
for manufacturing in textile company is not professional
position because individual holding general degree in business,
engineering or science could perform job). Second, "[t]he
degree requirement must be an industry standard in parallel
position among similar firms and institutions." Caron Int'l,
Interim Dec. No. 3085, at 5. A position does not constitute a
profession simply because the petitioning employer requires an
individual holding a specific bachelor's degree. See id.
Finally, the employer must show that it "normally imposes [a
degree] requirement" on the position. Id.
Here the AAU found that Hird/Blaker failed to establish that
the industry standard for an architectural woodwork cost
estimator requires a bachelor's degree in engineering or its
equivalent. In addition, Hird/Blaker did not establish that it
had consistently hired individuals with bachelor's degree in
engineering or the equivalent or that similar firms in the
industry need and consistently use professionals in the
proffered position, both appropriate tests to determine
II. Hird/Blaker Failed To Establish An Industry Standard
Here, the AAU found that the affidavits from three individuals
attesting in Hird/Blaker's behalf did not establish that the
industry standard for architectural cost estimating requires an
engineering degree or its equivalent. The AAU noted that Drs.
Griffiths and Spencer opined that an individual with six to
eight years of experience and an apprenticeship but lacking
education can perform the duties of the position, while James
D'Auria, though specifying that an engineering education is
required, failed to indicate the level of that education. The
AAU concluded that the evidence did not establish that similar
firms in the industry require a bachelor's degree in
engineering or an equivalent baccalaureate level of education
nor that the expertise of the affiants entitled them to
evaluate academic credentials for architectural cost
Dr. Griffiths, a professor in wood technology at Pittsburgh
State University, stated that the position may be performed by
"an individual who has completed not only [an] applicable
apprenticeship, but also six
to eight years of daily experience and responsibilities, or a
technologist/engineer who would have achieved a professional
background during the completion of an Engineering or
Industrial Technology Baccalaureate Degree." Dr. Griffiths
further noted that, "based upon the background of the
estimators who attend Pittsburgh State University's National
Wood Technology Center's monthly industrial seminars, the field
demands at least a Bachelors Degree in Industrial Technology,
engineering, or equivalent of the job experiences." Dr.
Griffiths stated that "[d]ue to the complexity of the
processes, the need to obtain and apply theoretical knowledge
in practice, and significant, recent technological developments
in the field of endeavor, Pittsburgh State University, after
careful study and consideration, determined to award Bachelor
of Science degrees in Industrial Technology." At best, Dr.
Griffiths' opinion demonstrated that an individual with either
a bachelor's degree in industrial technology or an
apprenticeship and sufficient experience is qualified to
perform in the field of wood products manufacturing.
Dr. Spencer, a professor in the department of industrial
education and technology at the Eastern Kentucky University,
stated that an individual who acquires six to eight years of
experience and an apprenticeship or a bachelor's degree in
industrial technology or engineering will qualify as an
architectural cost estimator. Although he established that the
curriculum offered by the Eastern Kentucky University for a
degree in industrial technology includes drafting, mathematics,
and computer courses, Dr. Spencer did not demonstrate that
engineering courses or degrees are offered by that school. Dr.
Spencer relied on job vacancy announcements for positions
offered to industrial technology graduates, but those
announcements failed to demonstrate that a degree or its
equivalent is required for cost estimating.
The affidavit of James D'Auria. president of his own
architectural firm and holder of a bachelor's degree in
architecture, stated that the position of architectural cost
estimator requires an engineering education. However, he did
not indicate whether he or any other firms had historically
employed cost estimators requiring that type of education or
whether he was ever personally engaged in that endeavor, nor
did he state the level of engineering education required for
architectural cost estimating.
As to the affiants' expertise in evaluating academic
credentials for architectural cost estimators, the AAU relied
on the assessment that an expert's qualifications lies within
the sound discretion of the trierof-fact, and may not be
disturbed unless "`manifestly erroneous.'" See, e.g., N.V.
Maatschappij, etc. v. A.O. Smith Corp., 590 F.2d 415, 418 (2d
Cir. 1978) (citing Fernandez v. Chios Shipping Co.,
542 F.2d 145, 153 (2d Cir. 1976); 3 J. Weinstein & M. Berger,
Weinstein's Evidence ¶ 702- (1978). In Caron Int'l,
for instance, the INS Commissioner noted:
This Service may, in its discretion, use as advisory opinions
statements from universities, professional organizations, or
other sources submitted in evidence as expert testimony.
Nevertheless, since the Service is responsible for making the
final determination regarding a beneficiary's eligibility for
the benefit sought, where an opinion is not in accord with
other information or is in any way questionable, the Service is
not required to accept or may give less weight to that
Id. at 7.
The INS properly concluded that those affidavits, not
demonstrating previous evaluation experience, did not establish
the affiants' expertise in evaluating academic prerequisites
for architectural cost estimating.
Finally, Hird/Blaker failed to provide, as the AAU requested, a
statement from a professional organization showing the normal
educational requirements for the position. Although the
affiants alleged that an individual with an engineering or
industrial technology degree can qualify for the position, none
of the affiants themselves qualified as a professional
organization, nor cited a specific example where an
cost estimator was hired based on his engineering degree or its
On this record the AAU did not abuse its discretion by
concluding that Hird/Blaker and Lim failed to establish that
the position of architectural estimator requires a member of
III. Hird/Blaker Failed To Establish That It Consistently
Hired Individuals With Engineering Degrees Or Its Equivalent
The AAU concluded that, based on the record, Hird/Blaker
historically hired at least four individuals to perform the
duties of the position, not one of whom held the equivalent of
an engineering degree from a United States university. Except
for one employee who acquired a foreign education in
engineering of an unspecified level, all of the employees
studied in unrelated fields and were first employed as
estimators in the industry before obtaining any education in a
related field of study.
According to Hird/Blaker the AAU erred in failing to accord
appropriate weight to evidence showing that Martin Hird
("Hird"), the president of Hird/Blaker, possesses an
engineering degree and has performed cost estimating duties for
the petitioner. Hird, the founder of the corporation in 1974
acquired an engineering degree from the Massachusetts Institute
of Technology and performed executive duties for Hird/Blaker at
the same time that he performed estimating duties. While it is
quite logical for the president of a large company that
manufactures and installs architectural woodwork products for
major corporations to hold an engineering degree, see, e.g.,
Immediate Business Systems, Inc. v. Richard, 645 F. Supp. 355,
358-59 (N.D.Ga. 1986) (position of manufacturer president held
to require professional engineer), the AAU did not abuse its
discretion in concluding that Hird's duties with the company
did not establish consistent hiring of employees holding
bachelor's degrees in engineering as architectural woodworking
On the record before it, the AAU did not abuse its discretion
by finding that Hird/Blaker has employed at least four
individuals in the position of cost estimator, only two of whom
held engineering degrees, one being Hird. Hird/Blaker's
original contention that it has "always had an individual with
an engineering degree perform [architectural cost estimator]
services" was rebutted on remand.
IV. Hird/Blaker Failed To Establish That Architectural
Cost Estimating Is A Transitional Occupation
In its decision remanding this case to the AAU, this court
ordered that the AAU should alternatively consider whether
architectural cost estimating constitutes an occupation in
transition from non-professional to professional status. See
Hird/Blaker Corp. v. Sava, 712 F. Supp. at 1102. The AAU
concluded on remand that Hird/Blaker did not show that cost
estimating is a transitional occupation.
In establishing a transitional occupation, the INS has
recognized that "the vocations included in the term
`profession' in our modern highly industrialized society are
constantly expanding, consistent with the greater knowledge and
specialized training that such a society demands." See Matter
of Shin, 11 I & N Dec. 686, 687 (Dist.Dir. 1966). In this
regard, a formerly non-professional occupation can be
considered professional if the qualification requirements for
the position have significantly increased due to technological
or other advancements. See, e.g., Hertz Associates, supra,
Interim Decision No. 3046, at 3-4; Matter of Villanueva, 13 I
& N Dec. 733, 734-36 (Dep.Assoc.Comm. 1971); Matter of
Panganiban, 13 I & N Dec. 581, 582-83 (Dept.Assoc.Comm. 1970).
The Amended Opinion, on the basis of the Occupational Outlook
Handbook, 1987-88 Edition, stated that there was some evidence
that cost estimators might constitute a transitional occupation
and concluded that Hird/Blaker ought to be given the chance to
supplement the record. Hird/Blaker Corp. v. Sava, 712 F. Supp.
at 1102-03. On remand, Hird/Blaker failed to demonstrate that a
"progression in responsibility or complexity" required a member
of the professions. No technological developments have been
defined, nor any increasing complexity of the field, nor the
need to apply theoretical knowledge.
Assuming, as the AAU found that the industry standard did not
require a professional, Hird/Blaker failed to show by the
actions of its own or by others similarly situated that the
occupation was transitional either on the basis of an emerging
technology or as a result of hiring practices.
For the foregoing reasons, the motion of the INS for judgment
on the pleadings is granted, that of Hird/Blaker and Lim
denied. Settle judgment on notice.
It is so ordered.
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