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December 15, 1994

THE UNITED STATES, et al., Defendants.


The opinion of the court was delivered by: LOUIS L. STANTON

Plaintiffs, housekeepers and child-care workers seeking permanent resident visas *fn1" (also known as "green cards"), claim that a provision of Pub. L. No. 101-649, 104 Stat. 4987-94 (1990) (the "1990 Amendments"), which amended the Immigration and Nationality Act of 1952 (the "Act"), violates their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution.

 Each of the plaintiffs has obtained a labor certification from the Department of Labor, (Complaint, PP 8-12), as a prerequisite to being classified for and receiving an employment-based visa to perform "skilled or unskilled labor" in the United States. 8 U.S.C. § 1182(b)(5)(A). An alien who obtains a certification and whose classification petition is approved must wait to obtain a visa until the Department of State determines that an immigrant visa in her preference category ("preference") is immediately available. See 8 C.F.R. § 245.1(a) (1994). Until she receives a visa, an alien can not lawfully be employed in the United States. See 8 U.S.C. § 1324(a)(1), (h)(3).

 When plaintiffs obtained their labor certifications, the allocation of employment-based visas between the two preferences then in effect led plaintiffs to expect they would receive their green cards in two to three years. (Complaint, P 17.) However, while they were waiting, section 121 of the 1990 Amendments revised the preferences and reallocated the available visas.

 The 1990 Amendments increased the total number of employment-based visas from 54,000 to 140,000. See 8 U.S.C. § 1151(d)(1)(A); H.R. Rep. No. 723(1), 101st Cong., 2nd Sess. 36 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6715 [hereinafter, "House Report"]. Congress also created three employment preferences. The first, "Priority workers," consists of aliens "with extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." 8 U.S.C. § 1153(b)(1). Members of the professions holding advanced degrees or otherwise demonstrating exceptional ability comprise the second preference. Id. § 1153(b)(2). Skilled workers, professionals and "other workers" make up the third preference. 8 U.S.C. § 1153(b)(3). Plaintiffs fall within the "other worker" subpreference of the third preference. (Plaintiffs' Memorandum of Law in Opposition to Motion to Dismiss, at 5, 13.)

 Despite the overall increase in employment-based visas, section 121 limited the number of visas available to "other workers" to 10,000 per year. 8 U.S.C. § 1153(b)(3)(B). According to plaintiffs, that "revised allocation and specific limitation of visas to unskilled categories dashed [plaintiffs'] reasonable expectation of permanent status" and lengthened the waiting period up to twenty years. (Complaint, P 17.) Plaintiffs allege that the extended waiting period also adversely affects United States citizens who would otherwise use the plaintiffs' services. (Id. PP 20-21.)

 Plaintiffs claim that section 121's reallocation of visas is unconstitutional because it "has no rational basis consistent with national policy." (Id. P 6.) Plaintiffs also contend that they or their sponsors, or both, acquired a legally protected interest in plaintiffs' ability to work legally in the United States following receipt of a labor certification; the reallocation, plaintiffs urge, deprived them of that right without due process of law.

 Defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint.


 In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6),

a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"

 Sheppard v. Beerman, 18 F.3d 147, 150 (2nd Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994) (citations omitted).

 A. Substantive Due Process

 The Due Process Clause of the Fifth Amendment states that "no person . . . shall be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. It protects aliens within the jurisdiction of the United States. Mathews v. Diaz, ...

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