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Keywords

plaintiffmotionsummary judgmentvisanaturalizationmotion for summary judgment
plaintiffmotionsummary judgmentvisanaturalizationmotion for summary judgment

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Unical Aviation, Inc. v. Immigration and Naturalization Service

Facts

Chia Sin Lin, an employee of Plaintiff Unical Aviation, entered the United States on October 26, 1996, with a nonimmigrant student visa. Before working for Unical, Mr. Lin had been employed by Fatair, Inc. from 1997 to 1999. In 1997, Fatair successfully petitioned the Immigration and Naturalization Service ('INS') to change Mr. Lin's nonimmigrant status from student to 'marketing specialist.' The INS approved the petition on May 20, 1997, and granted Mr. Lin an authorized stay in the United States as a nonimmigrant worker in a 'specialty occupation' from May 20, 1997 to March 1, 2000. In August 1999, Mr. Lin accepted an offer of employment from Unical as a senior marketing analyst. On October 5, 1999, Unical petitioned the INS to extend Mr. Lin's authorized stay beyond the March 1, 2000 expiration date granted under the petition filed by Fatair. The INS denied the petition on December 3, 1999, concluding that Unical failed to establish that Mr. Lin's position qualified as a 'specialty occupation.'

Chia Sin Lin, an employee of Plaintiff Unical Aviation, entered the United States on October 26, 1996, with a nonimmigrant student visa. Before working for Unical, Mr. Lin had been employed by Fatair, Inc. from 1997 to 1999. In 1997, Fatair successfully petitioned the Immigration and Naturalization Service ('INS') to change Mr. Lin's nonimmigrant status from student to 'marketing specialist.' The INS approved the petition on May 20, 1997, and granted Mr. Lin an authorized stay in the United States as a nonimmigrant worker in a 'specialty occupation' from May 20, 1997 to March 1, 2000. In August 1999, Mr. Lin accepted an offer of employment from Unical as a senior marketing analyst. On October 5, 1999, Unical petitioned the INS to extend Mr. Lin's authorized stay beyond the March 1, 2000 expiration date granted under the petition filed by Fatair. The INS denied the petition on December 3, 1999, concluding that Unical failed to establish that Mr. Lin's position qualified as a 'specialty occupation.'

Issue

Did the INS abuse its discretion in denying Unical Aviation's petition to extend the authorized stay of its employee as a nonimmigrant worker in a 'specialty occupation'?

Did the INS abuse its discretion in denying Unical Aviation's petition to extend the authorized stay of its employee as a nonimmigrant worker in a 'specialty occupation'?

Rule

To qualify as a 'specialty occupation,' the position 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.

To qualify as a 'specialty occupation,' the position 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.

Analysis

The court found that the INS abused its discretion in determining that Mr. Lin's position at Unical is not comparable to the 'marketing research analyst' position described in the Handbook. The Unical job description is virtually indistinguishable from the duties of a 'marketing research analyst.' Both positions involve gathering and evaluating sales data in order to generate more business and develop new products. The court noted that Unical submitted sufficient evidence to show that it normally requires at least a baccalaureate degree for this position, satisfying the third of the 'specialty occupation' criteria.

The court found that the INS abused its discretion in determining that Mr. Lin's position at Unical is not comparable to the 'marketing research analyst' position described in the Handbook. The Unical job description is virtually indistinguishable from the duties of a 'marketing research analyst.' Both positions involve gathering and evaluating sales data in order to generate more business and develop new products. The court noted that Unical submitted sufficient evidence to show that it normally requires at least a baccalaureate degree for this position, satisfying the third of the 'specialty occupation' criteria.

Conclusion

The court denied the INS's motion for summary judgment and granted the employer's motion for summary judgment, concluding that the INS abused its discretion in denying the petition.

The court denied the INS's motion for summary judgment and granted the employer's motion for summary judgment, concluding that the INS abused its discretion in denying the petition.

Who won?

Unical Aviation, Inc. prevailed in the case because the court found that the INS abused its discretion in denying the petition to extend the employee's stay, as the employer demonstrated that the position qualified as a 'specialty occupation.'

Unical Aviation, Inc. prevailed in the case because the court found that the INS abused its discretion in denying the petition to extend the employee's stay, as the employer demonstrated that the position qualified as a 'specialty occupation.'

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