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.
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.
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.
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.
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.
A. Masonry Masters' Ability to Pay Prevailing ...