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Keywords

plaintiffdefendantmotionsummary judgmentvisamotion for summary judgment
plaintiffdefendantmotionsummary judgmentvisamotion for summary judgment

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Blumenfeld v. ATTORNEY GENERAL OF THE US

Facts

The applicants employed a citizen of Great Britain as an au pair. In attempting to obtain a non-immigrant temporary visa, they filed an application for alien employment certification. The Department of Labor (DOL) denied certification. The applicants then filed a petition to classify a non-immigrant as a temporary worker with the INS. The application was denied because it was not established that the position was temporary. The applicants then sought review and the court granted summary judgment to the Commissioner. It determined the applicants had to establish that they had not employed an au pair in the past and that they would not need her services in the near, definable future, and found that the applicants had not sufficiently established that their need was temporary.

The applicants employed a citizen of Great Britain as an au pair. In attempting to obtain a non-immigrant temporary visa, they filed an application for alien employment certification. The Department of Labor (DOL) denied certification. The applicants then filed a petition to classify a non-immigrant as a temporary worker with the INS. The application was denied because it was not established that the position was temporary. The applicants then sought review and the court granted summary judgment to the Commissioner. It determined the applicants had to establish that they had not employed an au pair in the past and that they would not need her services in the near, definable future, and found that the applicants had not sufficiently established that their need was temporary.

Issue

The issue presented is whether the Commissioner's decision was arbitrary and capricious and, therefore, an abuse of discretion.

The issue presented is whether the Commissioner's decision was arbitrary and capricious and, therefore, an abuse of discretion.

Rule

The reviewing court may only set aside a final decision when it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The court must decide whether the agency decision was a reasonable one, and in determining reasonableness, must consider whether the decision was based on the relevant factors, lacked a rational basis, and whether the decision represents a clear error of judgment.

The reviewing court may only set aside a final decision when it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The court must decide whether the agency decision was a reasonable one, and in determining reasonableness, must consider whether the decision was based on the relevant factors, lacked a rational basis, and whether the decision represents a clear error of judgment.

Analysis

In this case, the Commissioner's decision that the plaintiffs had not sufficiently established that their need for the au pair is temporary was consistent with the test set forth in Artee. The Commissioner's finding was not unreasonable given the fact that the tangible evidence of plaintiffs' child care needs conflicted with their verbal statements that they intended the position and their need to be temporary. Their description of the position in the DOL application, and in the newspaper ad, did not describe the position as temporary. Nor are the duties listed therein consistent with the care of only one infant through toddlerhood until school age.

In this case, the Commissioner's decision that the plaintiffs had not sufficiently established that their need for the au pair is temporary was consistent with the test set forth in Artee. The Commissioner's finding was not unreasonable given the fact that the tangible evidence of plaintiffs' child care needs conflicted with their verbal statements that they intended the position and their need to be temporary. Their description of the position in the DOL application, and in the newspaper ad, did not describe the position as temporary.

Conclusion

Accordingly, plaintiffs' motion for summary judgment is denied and defendant's motion for summary judgement is granted.

Accordingly, plaintiffs' motion for summary judgment is denied and defendant's motion for summary judgement is granted.

Who won?

Defendants prevailed in the case because the court found that the plaintiffs did not sufficiently establish that their need for the au pair was temporary.

Defendants prevailed in the case because the court found that the plaintiffs did not sufficiently establish that their need for the au pair was temporary.

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