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July 16, 1990

MASONRY MASTERS, INC., et al., Plaintiffs,
RICHARD THORNBURGH, et al., Defendants

The opinion of the court was delivered by: RICHEY


 This is a long-running dispute between the Immigration and Naturalization Service ("INS") and a contractor (Masonry Masters) applying for an immigration visa for a resident alien bricklayer employee (Rigoberto Perdomo). The INS denied the 1979 application because Masonry Masters allegedly failed to establish its ability to pay the $ 10 per hour prevailing wage. After this Court granted the INS' summary judgment motion, the United States Court of Appeals reversed and remanded, holding that it was an abuse of discretion for the INS "to insist on evidence of Masonry Masters' ability to pay anything more than the prevailing wage [in 1979] at the time of the application for labor certification." Masonry Masters, Inc. v. Thornburgh, 277 U.S. App. D.C. 341, 875 F.2d 898, 900 (D.C. Cir. 1989). On remand, the parties have again filed cross-motions for summary judgment. Upon consideration of the Court of Appeals' opinion, the parties' submissions, and the entire record herein, the Court will grant summary judgment for the plaintiffs because the INS' denial of their visa petition was an abuse of discretion.

 I. Background

 A sixth-preference visa is available to an alien who is "capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States." 8 U.S.C. § 1153(a)(6). An employer seeking a sixth-preference visa is required to file a petition with the Attorney General, who "has delegated all powers relating to the immigration and naturalization of aliens, including the issuance of sixth-preference visas, to the INS." Masonry Masters, 875 F.2d at 901 (citing 8 U.S.C. § 1154; 8 C.F.R. § 2.1 (1988)).

 A prerequisite to the INS' granting such a sixth-preference visa petition is a certification by the Department of Labor ("DOL") (1) that there are not sufficient United States citizens available who are able, willing, and qualified to fill the position of the alien applicant and (2) that employment of the alien applicant will not adversely affect similarly employed United States citizens. 8 U.S.C. § 1182(a)(14). To satisfy itself that the second part of this test has been met, the DOL requires the employer to show that it has sufficient funds to pay the wage offered the alien, 20 C.F.R. § 656.20(c)(1), and that "the wage offered equals or exceeds the prevailing wage determined pursuant to § 656.40, and the wage the employer will pay to the alien when the alien begins work will equal or exceed the prevailing wage which is applicable at the time the alien begins work," § 656.20(c)(2).

 It is now established that the DOL's role in granting labor certification is limited and that the INS has the authority to investigate whether an employer can realistically pay the alien the prevailing wage. Masonry Masters, 875 F.2d at 901. In exercising this authority, the INS investigates the employer's ability to pay the alien employee the offered wage as of the filing date of the employer's application for DOL certification. Id. at 901-02 (quoting Matter of Great Wall, 16 I. & N. Dec. 142 (A.R.C. 1977)).


In short, an applicant for a sixth-preference visa must convince the DOL that the offered wage is equal to or greater than the prevailing wage, and convince the INS that the job offer is realistic. Taken together, the applicant may be required to prove an ability to pay the prevailing wage.

 Id. at 901.

 In 1979 Masonry Masters began the certification process by filling out and submitting to the DOL two "Application for Alien Employment Certification" forms (DOL Form 750-B), one for the plaintiff Rigoberto Perdomo and one for another alien bricklayer named Jose Lizandro Del Cid. The information provided on the two applications was identical, except for the names of the alien employees and the dates on which they began their respective employment with Masonry Masters. *fn1" Once the DOL issued labor certifications on both applications, Masonry Masters petitioned the INS for sixth-preference visas for Perdomo and Del Cid. After requesting Masonry Masters to submit evidence of its ability to pay Perdomo and Del Cid the offered wage and receiving almost identical information, see infra slip op. at 11-12, the INS approved the Del Cid petition but rejected the Perdomo petition because Masonry Masters allegedly had not established its ability to pay in 1979 the $ 10 per hour wage it offered in Item 29 of the DOL application.

 II. Analysis

 Settling the issue of what time-frame the INS and a reviewing court must look to when evaluating an employer's ability to pay an offered wage, the Court of Appeals held that the $ 10 per hour figure offered by Masonry Masters in Item 29 of the DOL form was the "prevailing wage" in 1982 when the DOL passed on, and approved, the labor certification application. Masonry Masters, 875 F.2d at 902. Moreover, using unequivocal language that governs this Court's resolution of this case, the Court of Appeals concluded:


As one may infer from the DOL's certification that the prevailing wage was at or below $ 10 an hour in 1982, it is most improbable that $ 10 an hour was a realistic or prevailing wage in 1979 [when the application for certification was filed]. On such a record, it is an abuse of the INS's discretion to insist on evidence of Masonry Masters' ability to pay Perdomo $ 10 an hour in 1979. On remand, the INS's inquiry into Masonry Masters' ability to pay in 1979 should be limited to an ability to pay some figure reasonably determined to have been the prevailing wage in 1979.

 Id. (emphasis added).

 A. Masonry Masters' Ability to Pay Prevailing Wage in 1979

 It is well-established that "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Chevron, USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). However, it is equally clear that an agency is not entitled to the same broad deference when it oversteps the scope of its authority, see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), and acts contrary to clear congressional intent, see INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (quoting Chevron, 467 U.S. at 843 n. 9), or to governing regulations, see California Human Dev. Corp. v. Brock, 246 U.S. App. D.C. 65, 762 F.2d 1044, 1049 (D.C. Cir. 1985).

 Here, the INS has overstepped its authority, failing to abide by the DOL's governing regulations. *fn2" The defendants concede that the DOL -- and not the INS -- is "the agency with statutory authority to issue wage determinations." Defendants' Opposition at 7. Moreover, the regulations governing the DOL's labor certification process specifically state that, if the job for which an employer is seeking certification is subject to wage determination under the Davis-Bacon Act, 40 U.S.C. § 276a et seq., "then the prevailing wage shall be at the rate required under the statutory determination." 20 C.F.R. § 656.40(a)(1) (emphasis added).

 Pursuant to authority conferred by statute and regulation, see, e.g., Davis-Bacon Act, 40 U.S.C. § 276a et seq. (setting rates of wages for laborers and mechanics employed under government contracts); 29 C.F.R. §§ 1.1-1.9 (1984) (procedures for predetermination of wage rates), the DOL periodically publishes wage determinations for certain jobs, including the job of residential bricklayer. According to these published DOL wage determinations, the prevailing wage for residential bricklayers in Washington, D.C. in 1979 was $ 7.50 per hour. DOL Employment Standards Administration's General Wage Determination Decisions, Decision No. DC76-3171, 41 Fed. Reg. 21,022, 21,027 (1976); see also Affidavit of Charles J. Hayes (Exhibit I attached to Plaintiffs' Cross-Motion for Summary Judgment). The plaintiffs argue -- and this Court agrees -- that both the DOL and the INS were bound by this published wage determination in evaluating the plaintiffs' application.

 Attempting to diminish the force of this analysis based upon the DOL's published wage determinations, the defendants contend that the $ 7.50 wage determination published by the DOL in 1976 was no longer controlling in 1979 when the plaintiffs applied for DOL certification. The defendants rely upon the DOL's new -- and superseding -- wage determinations published in May 1980 that set the prevailing wage for a residential bricklayer at $ 10.60 per hour. See DOL Employment Standards Administration's General Wage Determination Decisions, Supersedeas Decision No. DC80-3039, 45 Fed. Reg. 30,968, 30,976 (1980). Accordingly, the defendants argue that, assuming a gradual incremental increase from the 1976 prevailing wage of $ 7.50 to the 1980 prevailing wage of $ 10.60, the 1979 prevailing wage had to be between $ 9 and $ 10 per hour.

 While this argument may be highly creative, it is also highly unpersuasive. It defies common sense that a prevailing wage, set as a matter of law by publication in the Federal Register, would increase sua sponte over time; absent clairvoyance, what source other than the 1976 published wage determination decisions could the DOL consult in 1979 to arrive at the prevailing wage? Furthermore, the defendants' argument also flies in the face of the DOL's explicit statements that "General Wage Determination Decisions are effective from their date of publication in the Federal Register without limitation as to time," 41 Fed. Reg. at 21,022 (emphasis added), and that "modifications and supersedeas decisions are effective from their date of publication in the Federal Register without limitation as to time," 45 Fed. Reg. at 30,968 (emphasis added); see also March 29, 1990 Letter from Nancy M. Flynn, Acting Administrator of DOL's Employment Standards Administration (attached as Exhibit 1 to Plaintiffs' Reply) (Wage Decision No. DC76-3171, and its prevailing wage rate of 7.50 per hour, was in effect in 1979 and until it was superseded in 1980). *fn3"

 In short, the Court will not defer to an INS prevailing wage analysis that directly contradicts the DOL's published governing wage determination decision. Because the Court holds, as a matter of law, that the DOL set the prevailing wage for a residential bricklayer, like Perdomo, in Washington, D.C. in 1979 at $ 7.50 per hour, 41 Fed. Reg. at 21,027, no genuine issue of material fact exists as to the prevailing wage applicable in this case. *fn4"

 Similarly, it is beyond dispute that Masonry Masters has amply demonstrated its ability to pay the prevailing wage of $ 7.50 in 1979. The 1979 W-2 form and Perdomo's affidavit as to the number of hours he worked in 1979, both of which Masonry Masters provided to supplement the record during the administrative appeal of this case, see Adm. Rec. at 33-34, showed that Masonry Masters paid Perdomo $ 7.50 per hour in 1979. Thus, while Masonry Masters' documentation may have been insufficient to establish its ability to pay Perdomo $ 10 per hour in 1979, the defendants correctly concede that Masonry Masters did pay him $ 7.50 in 1979. See Defendants' Opposition at 2. Thus, because the prevailing wage in 1979 was $ 7.50 per hour and because Masonry Masters clearly had the ability to pay that prevailing wage when it initiated the DOL certification process in 1979, the defendants' rejection of the plaintiffs' sixth-preference visa was an abuse of discretion.

 B. INS' Inconsistent Decisions as to Perdomo and Del Cid

 An alternative ground for this Court's reluctance to give broad deference to the INS in this case and the Court's holding that the defendants' abused their discretion is the inexplicable, irreconcilable inconsistency between their decision to reject Perdomo's visa petition and contemporaneously accept, under identical circumstances, Masonry Masters' petition on behalf of Del Cid. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 447 n. 30, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) ("An additional reason for rejecting the Government's request for heightened deference . . . is the inconsistency of the positions the [Board of Immigration Appeals] has taken through the years. An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference' than a consistently held agency view." (quoting Watt v. Alaska, 451 U.S. 259, 273, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981)). *fn5"

 By denying Perdomo's and granting Del Cid's petition, the INS violated the rule that an agency may not make simultaneously inconsistent decisions without providing some explanation for the inconsistency. See, e.g., Hatch v. FERC, 210 U.S. App. D.C. 110, 654 F.2d 825, 834-35 (D.C. Cir. 1981) (agencies must provide reasoned explanation for failure to adhere to their own past rulings and practices); Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 852 (D.C. Cir. 1970) ("an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored"), cert. denied, 403 U.S. 923, 91 S. Ct. 2229, 29 L. Ed. 2d 701 (1971); Ohio Fast Freight, Inc. v. United States, 574 F.2d 316, 319 (6th Cir. 1978) (administrative agency must either conform its actions to its own previous general policies and precedents or explain its departure from them).

 On this record, there is no doubt that Masonry Masters' ultimately unsuccessful application on Perdomo's behalf and its successful application on Del Cid's behalf were the same in every material respect. Both forms were filed on the same date in 1979 by the same employer for the same position of bricklayer; both forms contained almost identical information; and the DOL issued the requested certification for both applications on the same date in 1982. *fn6" Moreover, other DOL forms submitted on the same date in 1979 indicated that Del Cid and Perdomo were both El Salvador citizens, where they were bricklayer apprentices, and that Del Cid had 1.5 years, and Perdomo 2.5 years, of experience as a bricklayer. *fn7" On the same date in 1984, Masonry Masters submitted nearly identical sixth-preference visa petitions to the INS for Perdomo and Del Cid, and each petition in Item 25 put the INS on notice by cross-referencing the other, separately-filed petition. *fn8" Again on the same date later in 1984, the INS sent Masonry Masters identical letters requesting further information. *fn9" Providing the same type of information for both applications, Masonry Masters responded by sending the INS two letters (based on W-2 forms) summarizing its annual payments and deductions from 1979 to 1983 for Perdomo and from 1980 to 1983 for Del Cid. *fn10" On July 18, 1985 the INS approved the visa petition for Del Cid but, the very next day, without explaining the inconsistency, the INS rejected Perdomo's petition, concluding that Masonry Masters had not established its ability to pay the offered wage. *fn11"

 As the foregoing demonstrates, there is no genuine issue of material fact foreclosing the conclusion that the applications and supporting documentation on behalf of Perdomo and Del Cid were, for all practical purposes, identical. By reaching diametrically opposed results on the two applications without explaining the patent inconsistency, *fn12" the defendants acted arbitrarily and abused their discretion. See Contractors Transport Corp. v. United States, 537 F.2d 1160, 1162 (4th Cir. 1976) ("Patently inconsistent application of agency standards to similar situations lacks rationality and is arbitrary.").

 III. Conclusion

 The prevailing wage for bricklayers like Perdomo was $ 7.50 per hour in 1979, and Masonry Masters has clearly demonstrated its ability to pay Perdomo that wage. Moreover, without explanation, the INS acted completely inconsistently in approving Masonry Masters' visa petition for Del Cid but at the same time rejecting what was, in effect, an identical petition supported by the same underlying documentation for Perdomo. On these alternative grounds, the Court holds that INS abused its discretion. Thus, the Court will grant summary judgment for the plaintiffs and will order the defendants to approve the sixth-preference visa petition filed by Masonry Masters and Perdomo.

 An Order in accordance with the foregoing Opinion will be issued of even date herewith.

 ORDER -- July 17, 1990, Filed

 In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 16 day of July, 1990,

 ORDERED that the Defendants' Motion for Summary Judgment shall be, and hereby is, DENIED; and it is

 FURTHER ORDERED that the Plaintiffs' Cross-Motion for Summary Judgment shall be, and hereby is, GRANTED; and it is

 FURTHER ORDERED that the defendants abused their discretion and acted contrary to law in refusing to approve the plaintiffs' sixth-preference visa petition; and it is

 FURTHER ORDERED that the defendants shall forthwith approve the plaintiffs' sixth-preference visa petition and issue Rigoberto Perdomo the appropriate visa.

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