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 ...