On June 2, 1980, Kaderali submitted an application for a labor certification on behalf of Hassanali who was to be employed as a gasoline station manager. The application as submitted reflected that the employer was to be L & M Service Center at 471 2d Avenue, Troy, New York. The application was submitted as the first step to have Hassanali granted a sixth preference visa. See 8 U.S.C. § 1153(a)(6). The application was approved and a labor certification was issued by the Department of Labor (DOL) on March 2, 1981. Complaint Exhibit A. That action gave Hassanali a June 2, 1980 priority date on the waiting list for sixth preference immigrants from India.
The Immigration and Naturalization Service (INS) commenced deportation proceedings against Hassanali and his family on February 2, 1981, charging that they had been admitted to this country as visitors on or about September 1, 1979, and had overstayed their authorized period of temporary stay. Complaint Exhibit B. On March 18, 1981, Kaderali submitted to INS a visa petition seeking sixth preference classification for Hassanali on the basis of the labor certification. Complaint Exhibit C. At the final deportation hearing on March 11, 1981, the Immigration Judge granted Hassanali and his family three months for their voluntary departure from the United States, apparently on the basis of the pending sixth preference visa petition. Counsel for Hassanali wrote the INS District Director in Buffalo, New York, calling attention to the submission of the sixth preference visa petition submitted to INS at their office in Albany, New York, and requesting an extension of the voluntary departure date. The Buffalo INS office responded, noting that it had no record of the papers submitted to the Albany INS office. Counsel responded on June 11, 1981, and advised the Buffalo INS office of the date the petition was submitted and renewed his request for an extension of time. No response was ever received from INS, however, INS did not pursue the deportation of Hassanali while the petition was under consideration by its Albany office.
INS took no action on the sixth preference visa petition for almost three years, and the plaintiffs maintain, and it is apparently undisputed, that the visa petition date became current during the months of June, July, August and September 1982, and for the entire fiscal year commencing October 1983, including the month of September 1984.
In the meantime, when Kaderali's lease on the Troy, New York, gasoline station was about to expire, the lessor proposed to raise the rent from $1,000 to $1,800 per month. Kaderali rejected the increase as exorbitant and terminated the lease on July 30, 1982. He found a new location the following year and reopened his business on September 14, 1983, under the new trade name, MKB Getty Service Corporation, which, notwithstanding the name, was not incorporated, and which, like the previous gasoline station, was wholly owned and operated by Kaderali. The new station is located in Latham, New York, approximately 11 miles from the old station. Hassanali was employed as the manager of both stations and Kaderali continues to adhere to his offer to employ Hassanali on permanent basis as the manager of his service station.
On March 20, 1984, the District Director of INS at Buffalo denied the visa petition. Complaint Exhibit F. In his decision he cited DOL regulation 20 C.F.R. § 656.30(c)(2) and ruled that, "the record indicates that the L & M Service Station ceased to exist in July 1982, thereby terminating the validity of the labor certification obtained for the position of manager. In view of the foregoing, the position as certified no longer exists. The petition is therefore denied." Id. The appeal to the INS Assistant Commissioner was denied. Complaint Exhibit G. In denying the appeal, the Assistant Commissioner ruled that:
There is no evidence that the petitioning entity [L & M Service Center] continues to exist. There is substantial evidence that it does not. Therefore the job offer, made by this specific entity, also no longer exists in that the employer-employee relationship detailed has ended. There is no evidence of successorship of rights and liabilities. The ostensible owners decision to establish a new, similar business enterprise in the same area is not a basis for a finding of continuity for the purposes of this petition. Pursuant to 20 CFR 656.30(c)(2) the labor certification is no longer valid. Further, a review of this matter establishes no basis for estoppel.