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ROSEDALE & LINDEN PARK CO. v. SMITH

October 9, 1984

ROSEDALE AND LINDEN PARK COMPANY, et al., Plaintiffs,
v.
WILLIAM FRENCH SMITH, et al., Defendants



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, District Judge

 This case is before the Court on cross-motions for summary judgment. Plaintiff seeks reversal of a decision of the Immigration and Naturalization Service (INS) denying plaintiffs' immigrant visa petition. The sole legal issue concerns the determination by the INS that plaintiff Maria Judith Horvath is not eligible for sixth preference immigration classification because of her alleged failure to meet the educational qualifications specified in the certified job offer.

 FACTS

 Rosedale and Linden Park Company ("Rosedale") is a non-profit corporation providing cemetery and related services in northern New Jersey. In April of 1980, Rosedale sought certification pursuant to Section 212(a)(14) of the Immigration and Nationality Act, *fn1" (the "Act") for the position of burial plot salesperson on behalf of Ms. Horvath, a citizen of Uruguay. On the Form MA7-50B Application for Alien Employment Certificate submitted as part of the application, Rosedale listed "2" (two) years of college as minimum requirements for the job offered. Under the heading "College Degree Required," plaintiff wrote "None/some college education preferred." In the space labelled "Major Field of Study," plaintiff listed "languages/business."

 In July, 1981, the Department of Labor approved Rosedale's application, thereby certifying that there were not sufficient workers who were "able, willing, qualified . . . and available" for such a position and that the employment of an alien such as Ms. Horvath would not "adversely affect the wages and working conditions of the workers in the United States similarly employed." See Section 212(a)(14), 18 U.S.C. § 1182(a)(14).

 Rosedale then filed a petition with the INS District Director in Newark to classify Ms. Horvath as a "sixth preference" immigrant pursuant to Section 203(a)(6) of the Act, 8 U.S.C. § 1153(a)(6). On April 15, 1982, the INS District Director denied Rosedale's visa petition on the grounds that Ms. Horvath did not meet the job qualifications for such a position as set forth in the Department of Labor Dictionary of Occupation Titles. The District Director also asserted that despite the certification by the Department of Labor, "it is hard to believe that a U.S. worker with these qualifications does not exist." Upon review of this decision, the Regional Commissioner of the INS remanded the case to the District Director on the ground that "the Service [INS] does not have the authority to delve into the procedural guidelines or procedures of the DOL." However, the Commissioner instructed the District Director on remand to consider "whether the petitioner has established that [Ms. Horvath] possesses the minimum requirements specified on the certified job offer." In particular, the Commissioner questioned whether plaintiffs had established that Ms. Horvath possessed the necessary educational requirements, defined as "two years of college with a major field of study in languages or business." *fn2"

 On remand, the District Director again denied Rosedale's petition. The director concluded that "no evidence has been presented to establish the beneficiary's major field of study. . . ." The case was again certified for review by the Regional Commissioner.

 On November 10, 1982, Rosedale submitted additional evidence in an attempt to establish that Ms. Horvath satisfied the educational requirements set forth in the form MA7-50B application. This evidence included a transcript from Crandon College in Montevideo, Uruguay, which Ms. Horvath attended for two years, as well as an "English language" diploma from the Directive Council of the Cultural Alliance Uruguay-U.S.A.

 On January 25, 1983, the Regional Commissioner affirmed the District Director's denial of the visa petition. The Commissioner held that "the transcript [from Crandon College] reflects that the beneficiary's major field of study was in a secretarial course rather than in languages or business as required on the certified job offer." The Commissioner also noted that "although some of the courses may be related to business, the curriculum taken by the beneficiary falls considerably short of the requirement on the certified job offer; i.e., two years of college with a 'major field of study in language/business. '" Thus, he concluded that the plaintiffs failed to sustain their burden of proof.

 THE STATUTORY FRAMEWORK

 One of plaintiffs' principal arguments in this Court is that the INS lacks the authority to find that Ms. Horvath is not qualified. According to plaintiffs, the Department of Labor, pursuant to the certification process, possesses sole authority "to deal with the question of immigrant skills in relation to the American labor market." The INS role is limited to "reviewing" the DOL certification for "abuse of discretion" or "misrepresentation." This description of the division of authority between INS and DOL is mistaken; the primary responsibility for examining "qualifications" for preferential visas lies with the INS.

 Under Section 203(a)(6), aliens "who are capable of performing specified skilled or unskilled labor . . . for which a shortage of employable and willing persons exists in the United States" are qualified for sixth preference visa classification. 8 U.S.C. § 1153(a)(6). Section 212(a)(14) preconditions sixth preference visa classification on DOL certification by providing that aliens described in section 203(a)(b) shall be ineligible to receive visas unless "the Secretary of Labor has certified to the Secretary of State and the Attorney General that (A) there are not sufficient workers [in the United States] who are able, willing, qualified . . . and available . . . and (B) the employment of such alien will not adversely affect the wages and working conditions of the workers in the United States similarly employed." 8 U.S.C. § 1182(a)(14).

 It is clear that the certification of the Secretary of Labor is limited to issues focusing on the impact of the alien on the American workforce. The ultimate determination of the alien's qualification for preferential visa status is delegated to the INS. Section 204 of the Act, entitled "Procedure for Granting Immigrant Status," provides: "After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 203(a)(3) or (6), the Attorney General *fn3" shall, if he determines that the facts stated in the petition are true and that the alien . . . is eligible for a preference status under section 203(a), approve the petition and forward one copy thereof to the ...


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