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Keywords

plaintiffdefendantmotionsummary judgmentcorporationregulationvisamotion for summary judgment

plaintiffdefendantappealmotionsummary judgmentcorporationregulationvisanaturalizationmotion for summary judgment

Related Cases

Mars Jewelers, Inc. v. Immigration and Naturalization Service

Facts

Plaintiff was a resident of the United States through a nonimmigrant visa and served as president of Mars Jewelers, Inc., a foreign subsidiary organized in Texas. The corporation petitioned for a permanent immigration visa for the plaintiff under the Sixth Preference category for employee-sponsored foreign workers. The defendant denied the petition, leading to the plaintiffs filing suit and both parties moving for summary judgment.

Plaintiff was a resident of the United States through a nonimmigrant visa. Plaintiff was president of plaintiff corporation, a foreign subsidiary organized in Texas. Plaintiff corporation petitioned for a permanent immigration visa for plaintiff under the Sixth Preference category for employee-sponsored foreign workers pursuant to the Immigration and Nationality Act (Act),8 U.S.C.S. 1153(a)(6). Defendant denied the petition and defendant's Administrative Appeals Unit dismissed plaintiff's appeal. Plaintiff filed suit, and both parties moved for summary judgment.

Issue

Whether the defendant acted arbitrarily and capriciously in denying the plaintiffs' Sixth Preference Immigrant Visa Petition and whether the proper regulations were applied in the decision.

1) whether defendant acted arbitrarily and capriciously and not in accordance with law in denying plaintiffs' Sixth Preference Immigrant Visa Petition; 2) whether defendant acted arbitrarily and capriciously and not in accordance with the law in promulgating its recent amendments to the regulatory scheme governing intracompany transferees; and 3) whether the challenged regulatory amendments have a de facto discriminatory effect against intracompany transferees of small businesses, thus denying constitutional equal protection.

Rule

The court determined that the review of a denial of a preference visa is limited to whether the denial was an abuse of discretion, which may occur if no evidence supports the denial or if the decision is based on an improper understanding of the law.

Generally review of a denial of a preference visa is limited to a determination of whether the denial was an abuse of discretion. Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir. 1971). An abuse of discretion may be found if no evidence supports the denial by INS or if the decision by INS is based on an improper understanding of the law. See Kaliski v. District Director of Immigration and Naturalization Service, 620 F.2d 214 (9th Cir. 1980).

Analysis

The court found that the defendant's decision was based on an improper application of the 1987 regulations instead of the 1983 regulations that were applicable at the time of the petition. The court concluded that the defendant's reliance on factors such as the size of the operation and the professional status of supervised employees was not in accordance with the law, leading to an abuse of discretion.

Conclusion

The court granted the plaintiffs' motion for summary judgment and denied the defendant's motion, concluding that the denial of the petition was an abuse of discretion.

Who won?

Plaintiffs prevailed in the case because the court found that the defendant failed to apply the proper regulations and that the plaintiff was engaged in a managerial and executive capacity qualifying for the Sixth Preference category.

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