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Glara Fashion, Inc., Services v. Eric Holder

February 3, 2012

GLARA FASHION, INC., SERVICES,
PLAINTIFF,
v.
ERIC HOLDER, ATTORNEY GENERAL OF THE UNITED STATES, AND U.S. CITIZENSHIP AND IMMIGRATION
DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION & ORDER

Defendants Eric Holder and the United States Citizenship and Immigration Services ("CIS" and, collectively, the "government") move for summary judgment as to all claims brought by plaintiff Glara Fashion, Inc. ("Glara"). Glara's complaint seeks relief, alternatively, under the mandamus statute, 28 U.S.C. § 1361, the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Declaratory Judgment statute, 28 U.S.C. § 2201. Glara's complaint challenges the government's denial of Glara's petition for an H-1B nonimmigrant visa filed on behalf of one of its employees, Yeo Sung Jung, and asks the Court to compel the government to reopen consideration of, and approve, that petition. For the following reasons, the government's motion for summary judgment is granted as to all claims.

I.Background and Undisputed Facts*fn1

In April 2007, Glara petitioned for an H-1B visa for Yeo Sung Jung ("Jung") so as to enable it to employ her as a "fashion designer" (the "2007 Petition"). Ex. 1 to Oeltjen Decl. 1. Employers in the United States may petition for H-1B nonimmigrant visas on behalf of alien workers; such visas allow the worker temporary admission to the United States in order to "perform services . . . in a specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b). If the position in question qualifies as a "specialty occupation" and if the alien is qualified for that position, CIS may extend H-1B status to the alien for up to a total of six years, in three-year increments. See 8 C.F.R. § 214.2(h)(13)(iii)(a); Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1153 (D. Minn. 1999).

Under the regulations implementing the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. ("INA"), a "specialty occupation" must meet one of the following four 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 turn, the alien whom the petitioning company wishes to employ must meet one or more of these four related criteria:

(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. 8 C.F.R. § 214.2(h)(4)(iii)(C)(1)--(4).

Glara's 2007 Petition on behalf of Jung asserted that Glara's "fashion designer" position was a specialty occupation, and that Jung was a qualifying alien worker. See Ex. 1 to Oeltjen Decl. 1--39. To this end, Glara stated that the fashion designer position had duties including conferring with sales and management executives, creating new clothing designs, and sketching drawings of women's apparel. Id. at 6. Glara further stated that the fashion designer position required, at a minimum, a bachelor's degree in a fashion, clothing or textiles major. Id. at 18--20, 31. As to Jung, Glara represented that she held a degree from the clothing department of Baewha Women's University College in Seoul, South Korea, and had more than 12 years of work experience as a designer in Seoul. Id. at 18--20. Glara asserted that Jung's degree was equal to an associate's degree in fashion design in the United States and, viewed in combination with her work experience, was equivalent to a bachelor's degree. Id. at 21--22.

In April 2007, CIS issued a request for further evidence in support of Glara's H-1B petition. Id. at 40--41. On July 13, 2007, Glara responded with additional information. Id. at 41--61. On July 19, 2007, CIS approved the 2007 Petition. Id. at 1.

On or about June 1, 2010, Glara petitioned to extend Jung's H-1B visa for an additional three-year period (the "2010 Petition"). See Ex. 2 to Oeltjen Decl. 16. It appended to that petition (1) an employment offer letter to Jung; (2) a description of Jung's proposed job duties; (3) a letter from the President of Glara, Mr. Yong C. Kim, describing the caliber of applicants he normally considered for the fashion designer position; (4) a copy of the educational equivalency report it had submitted in connection with the 2007 Petition; (5) Jung's college transcript; and (6) Glara's 2008 and 2009 tax records. Id. at 22--78.

On July 13, 2010, CIS requested further evidence from Glara. Id. at 79--81. CIS acknowledged that Glara was requesting an extension of an existing visa, not making a new application with respect to a new applicant. Id. at 80. However, it noted, it was authorized to examine petitions for extension to ensure, inter alia, that the prior approval was not based on gross error. Id. As to that issue, CIS advised Glara that it did not find that the record of the 2007 petition persuasively established that the fashion designer position qualified as a "specialty occupation." Id. It noted that the 2010--11 version of the Occupational Outlook Handbook, published by the Bureau of Labor Statistics, indicates that employers of fashion designers typically seek applicants with an associate or bachelor's degree in fashion design. Id. Because an associate's degree would fall short of the degree requirements under the regulations implementing the INA, CIS asked Glara to submit evidence sufficient to show that (1) a bachelor's degree in some other specific field was normally the minimum requirement for the fashion designer position; (2) the position was sufficiently complex or unique that it could not be performed by a person with only an associate's degree; or (3) a bachelor's degree in fashion design was the standard minimum requirement for such a position at either Glara specifically, or in the industry generally. Id. at 80--81. CIS advised Glara that it needed to substantiate its claims as to these points by independent evidence or documentation. Id. at 81.

In response, on August 18, 2010, Glara, through counsel, submitted a three-page letter from its president, Kim. Id. at 82--84. Kim stated that it was Glara's policy to hire only an individual with at least a baccalaureate degree. Id. at 84. He also stated that in New York City, a fashion designer who lacks such an education will not receive proper recognition from potential customers. Id. Glara also supplied a letter, slightly more than a page long, from Sun Young Min, the president of Johnny's Fashion Studio Corp., also situated on West 38th Street in Manhattan, which Mr. Kim termed a "comparable company." Id. at 83, 85--86. Min stated that, based on more than 15 years in the apparel industry, the position of fashion designer "is of a professional level" and typically required attainment or at least a bachelor's degree in clothing, design, or a textile major. Id. at 85. Glara also included copies of two job listings downloaded from the internet, each of which, Glara's counsel stated, was from "a company of comparable size and distinction to ours," seeking to fill a fashion designer position with a candidate possessing a bachelor's degree. Id. at 88--92. Glara also attached notices of H-1B visa approvals for other Glara employees. Id. at 93--95. However, the accompanying chart of Glara's employees reflected that Jung was the sole worker at Glara with the title "fashion designer." Id. at 96--97.

On November 1, 2010, CIS denied the 2010 Petition. Id. at 9--13. Its decision noted that Glara's application sought to classify the fashion designer position as a "specialty occupation" but that, upon CIS's initial review, "it could not be determined that the proffered position could be considered a specialty occupation." Id. at 10. Accordingly, CIS stated, it had issued the July 2010 request for further evidence, seeking a submission from ...


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