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ALL ABOARD WORLDWIDE COURIERS, INC. v. AG

July 22, 1998

All Aboard Worldwide Couriers, Inc., et al., Plaintiffs,
v.
Attorney General et al., Defendants.



The opinion of the court was delivered by: MOTLEY

Memorandum Opinion Granting Summary Judgment

 MOTLEY, District Judge

 A. Background

 This immigration case arises under 28 U.S.C. § 1331, the Administrative Procedure Act, and the Declaratory Judgment Act. Defendants seek summary judgment, arguing that the Immigration and Naturalization Services's decision to deny a certain kind of work visa to plaintiff and her would-be employer was not an abuse of discretion. For the reasons set forth below, defendants' Fed.R.Civ.P. 56 motion is GRANTED.

 Plaintiff All Aboard Worldwide Couriers. Inc. ("All Aboard") is a New York corporation. Plaintiff Puja Virk ("Virk") is a citzen of India, presently in the United States in H-1B status *fn1" who is seeking to perform services for All Aboard Worldwide. The defendants are the Attorney General of the United States ("AG") and the Immigration and Naturalization Service ("INS") (collectively: "the Government").

 B. The H-1B Visa

 Title 8, Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act provides for the nonimmigrant visa classification (the "H-1B visa" status) of an alien "who is coming temporarily to the United States to perform services . . . in a speciality occupation described in 1184(i)(1) of this title . . . who meets the requirements of the occupation specified in 1184(i)(2). . . . and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed" the necessary application with the Secretary.

 The term "speciality occupation" refers to an occupation which requires "theoretical and practical application of a body of specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." 8 U.S.C. 1184(i)(1)(A),(B). The statute's implementing regulations set forth standards for qualification of a speciality occupation. The speciality occupation must meet one of the following criteria:

 (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

 (2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

 (3) The employer normally requires a degree or its equivalent for the position; or

 (4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)--(4).

 In addition, the regulations set forth beneficiary qualifications by requiring that the petitioner meet one of the following criteria:

 (1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an ...


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