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FULL GOSPEL PORTLAND CHURCH v. THORNBURGH

October 17, 1988

FULL GOSPEL PORTLAND CHURCH and HAE SOOK KIM, Plaintiffs
v.
RICHARD THORNBURGH,1 ET AL., Defendants



The opinion of the court was delivered by: GESELL

 GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 This immigration case comes before the Court on defendants' motion to dismiss (treated as a motion for summary judgment) and plaintiffs' cross-motion for summary judgment.

 Until the defendants revoked plaintiff Hae Sook Kim's (Ms. Kim's) visa petition in September, 1986, she was the accompanist, choir director and piano teacher at co-plaintiff Full Gospel Portland Church in Portland, Oregon, earning $ 900 per month for a 40-hour or more work week. She had a Third Preference visa under 8 U.S.C. § 1153(a)(3), which provides that:

 
Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151(a) of this title, to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States, and whose services in the professions, sciences or arts are sought by an employer in the United States.

 Pub.L. 96-212, Title II, § 203(c)(3), 94 Stat. 107, 108 (1980).

 The Full Gospel Portland Church serves the Korean-American community in the surrounding community. Like many other churches in this country, it provides programs to meet the needs of its members. Since Koreans have a long musical tradition, one of the needs of its members was piano lessons. Due to the revocation, the church has no piano teacher; Ms. Kim cannot receive any pay for her work as an accompanist, and she is in danger of being deported

 The dispute before the Court involves the legality of the revocation of the plaintiff's visa petition. The District Director of the Immigration and Naturalization Service (INS) revoked the petition on the ground that Ms. Kim was not a professional within the meaning of 8 U.S.C § 1101(a)(32), which provides that:

 
The term "profession" shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.

 Plaintiffs contend that the revocation was arbitrary and capricious in the light of numerous affidavits testifying to the cultural contribution Ms. Kim was making to her church and the Korean-American community in Portland as a professional musician and music teacher.

 I. Facts.

 These and other relevant material facts are not in dispute.

 A. Ms. Kim's status before revocation.

 In 1984, the Church filed an application with the Department of Labor seeking certification that there were no qualified United States workers ready, willing and able to fill the position offered to and subsequently held by Ms. Kim. It was issued a certification in 1985, and shortly thereafter, Full Gospel petitioned Defendants for a Third Preference visa petition. Defendants, through the Northern Regional Service Center, approved the petition in July of 1985. That October, Ms. Kim and her family filed with the defendants their applications to adjust their status to permanent residents. She was granted permission to work, and in January, 1986, she began employment with the Church according to the terms of her job offer, $ 900 per month, and Full Gospel paid her Social Security taxes.

 B. The revocation.

 In March, 1986, notice was sent to Ms. Kim that the Service intended to revoke her Third Preference visa petition. She responded to that notice, but in September, 1986, defendants revoked her petition, alleging the following:

 1. Ms. Kim is not a certified teacher, nor a professional. Her music school (the Church) is unaccredited.

 2. Though her labor certification had called for someone who could teach beginning, intermediate and advanced students, Ms. Kim presented no evidence that she was in fact teaching intermediate or advanced students.

 3. The Church's music school did not need a person holding a college degree to teach piano and music.

 4. The salary offered to Ms. Kim was not within the general range into which professionals' salaries fall.

 5. The Church congregation is too small to have made a bona fide job offer.

 6. Students might discontinue their lessons after only a few months, which also indicates that Full Gospel did not make a bona fide job offer.

 C. The Appeal.

 The Church filed an appeal of the revocation with the Administrative Appeals Unit (AAU) in Washington, D.C. The AAU upheld the revocation and dismissed the appeal, although it found that Ms. Kim is a credentialed music graduate; that a department chairman from the University of Oregon had found that the Church's program would require a degreed person if Full Gospel were to offer the program it described in its petition; and that the Church received fees from the music and piano students and paid Ms. Kim's salary.

 Nevertheless, the AAU concluded that the Church had failed to demonstrate that Ms. Kim "would be employed in preponderant part in a capacity requiring the skills of a professional as either a musical accompanist or a teacher," and had failed to "establish [the Church] had the ability to pay [Ms. Kim's] salary as of December 1984." It upheld the District Director's determination that the position did not qualify as a profession pursuant to case law. Thereafter, defendants denied ...


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