The opinion of the court was delivered by: Henry H. Kennedy, Jr., United States District Judge.
Suhail Qumri, an Israeli-born alien, and Qumri's employer, the Evangelical Lutheran Church in America ("ELCA"), a non-profit religious organization, bring this action against the Immigration and Naturalization Service ("INS" or"Service") and the United States Department of Justice.*fn1 Plaintiffs challenge the INS's decision to deny ELCA's application for an extension of Qumri's stay as an H-1B nonimmigrant and also seek to remedy the INS's improper processing of Qumri's I-94 card.
Before this court are defendants' motion to dismiss for lack of jurisdiction or, in the alternative, for summary judgment, and plaintiffs' cross-motion for summary judgment. Upon consideration of these motions, the oppositions thereto, and the record of this case, the court concludes that plaintiffs' motion for summary judgment must be granted in part, and denied in part, and defendants' motion must similarly be granted in part and denied in part.
In June 1998, ELCA hired Suhail Qumri as a Financial Systems Analyst and, approximately two years later, promoted him to his current position, that of Senior Financial Systems Analyst in ELCA's Department of Information Technology. In December 1998, soon after hiring Qumri, ELCA submitted to the INS an H-1B visa petition on his behalf. The INS approved the visa petition on April 6, 1999, for a period commencing on April 2, 1999, and ending on November 1, 2001.
An H-1B visa is an employment-based nonimmigrant visa that allows skilled aliens in certain"specialty occupations" to work in the United States for a limited time, under specified conditions. To qualify as a"specialty occupation," the occupation must require: (1) the"theoretical and practical application of a body of highly specialized knowledge" in a field of"human endeavor"; and (2) the"attainment of a bachelor's or higher degree in the specific specialty (or its equivalent)." 8 U.S.C. § 1184(i)(1) (2000); see also 8 C.F.R. § 214.2(h)(4)(ii) (2003); Defensor v. Meissner, 201 F.3d 384, 385-88 (5th Cir. 2000) (explaining H-1B requirements). Qumri's position as a Senior Financial Systems Analyst qualifies as a"specialty occupation."
Qumri's H-1B visa, and, according to governing regulations, Qumri's lawful stay in the United States, expired on November 1, 2001. See Compl. ¶ 14; 8 C.F.R. § 214.2(h)(13)(i)(A).
Under the relevant regulation, Qumri was eligible to apply for an extension of stay at or before the visa's expiration. H-1B visas can be extended as long as the alien's total period of stay in the United States does not exceed six years. § 214.2(h)(15)(ii)(B). The present controversy arose because, although Qumri's H-1B petition, and with it his lawful status in the United States, expired on November 1, 2001, ELCA failed to file a petition for an extension of Qumri's status until January 4, 2002.*fn2 Thus, plaintiffs"allowed the expiration date to pass without taking any action." Ex. 4 at 16 (Wright Ltr. to Way, Dec. 27, 2001).
On January 4, 2002, ELCA filed with the INS an untimely H-1B visa extension petition for beneficiary Qumri. In this extension petition, ELCA asked the INS to exercise its discretion to excuse its late filing, pursuant to 8 C.F.R. § 214.1(c)(4). That regulation provides that an"extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed." 8 C.F.R. § 214.1(c)(4). Important for our purposes, however, the regulation includes a safety valve. It vests the INS with discretion to excuse an applicant's tardy filing if the applicant shows, inter alia, that the failure to file timely was due to"extraordinary circumstances" beyond the applicant or petitioner's control and the delay was"commensurate with the circumstances." Id. In its January 4, 2002, H-1B petition, ELCA urged the INS to utilize this safety valve provision and approve its request, notwithstanding its late filing. Ex. 4 at 16 (Wright Ltr. to Way, Dec. 27, 2001).
ELCA's extension petition offered four explanations for its failure to file the H-1B extension petition on time. First, according to ELCA, back when Qumri's initial H-1B visa had been prepared, ELCA had not retained its own counsel and, consequently,"was not advised of the due date for filing for an extension of Mr. Qumri's stay." Id. Second, at the time of the initial H-1B filing, ELCA did not have a calendering system to keep track of applicable deadlines. Id. at 15. Third, ELCA stated it was inexperienced with immigration matters because it"employs only two H-1B employees, including Mr. Qumri." Id. Finally, ELCA submitted that"Mr. Qumri believed he was in valid H-1B status until April 2002." Id.
ELCA's January 4, 2002, H-1B extension petition also included Qumri's Labor Condition Application ("LCA") from the Department of Labor. That was a necessary part of the petition. Under 8 C.F.R. § 214.2(h)(15)(ii)(B)(1), any request for an extension of stay must be accompanied by a"prior certification from the Department of Labor that the petitioner continues to have on file a labor condition application valid for the period of time requested for the occupation." Qumri's LCA was approved on December 12, 2001, valid through October 31, 2004.
On January 7, 2002, the INS sent plaintiffs a letter denying plaintiffs' request for an H-1B extension of stay. In this letter, the INS stated that"it is the alien's responsibility to maintain a valid nonimmigrant status while remaining in the United States." Ex. 5 at 2 (Way Ltr. to ELCA, Jan. 7, 2002). The Service emphasized that the original H-1B approval notice"clearly indicates that [Qumri] was granted H-1B nonimmigrant status from 4/02/1999 to 11/01/2001." Id. By plaintiffs' January 4, 2002, filing, Qumri had been out of status for over two months.
In addition, in this initial denial, the INS cited 8 C.F.R. § 214.2(h)(15)(ii)(B)(1), the regulation requiring a valid LCA. The INS stated, essentially, that not only had plaintiffs allowed Qumri's status to lapse, but they had also failed to include a proper LCA in the extension application. According to the INS, the"start date of the validity period of the petition does not correspond with the date specified on the Labor Condition Application" because the petition period, if approved, would have started on November 1, 2001, while the LCA was not approved until December 12, 2001, more than one month hence. Id. The INS's letter also acknowledged ELCA's cited reasons for its tardiness but did not address whether ELCA's explanation was sufficient to trigger use of the § 214.1(c)(4)"extraordinary circumstances" safety valve provision.
One month after receiving this initial denial, on February 7, 2002, plaintiffs filed with the INS a timely Motion to Reconsider or Reopen. In this petition, ELCA renewed its argument that its inexperience with H-1B nonimmigrant employees and its failure to use knowledgeable outside counsel constituted extraordinary circumstances, warranting utilization of the safety valve. Plaintiffs also argued, for the first time, that following the events of September 11, 2001, Qumri, a Christian Arab, became"preoccupied" and experienced great stress and anxiety. This stress, according to plaintiffs,"contributed to his failure to discover the November 1, 2001, expiration date of his H-1B petition approval." Ex. 6 at 12 (Mot. to Reconsider or Reopen, Feb. 7, 2002); Ex. 8 at 5 (Aff. of Qumri).
In addition, ELCA's Motion to Reconsider placed great emphasis on the INS's improper processing of Qumri's I-94 card, a fact that plaintiffs briefly discussed in their initial petition but which was not directly addressed in the INS's initial letter of denial. The issue arose after Qumri took a trip to Israel in the Spring of 1999. At the conclusion of this trip, when Qumri was reentering the United States on May 4, 1999, the immigration officer at the Chicago port of entry erroneously stamped Qumri's I-94 card (the card that governs an alien's lawful and unlawful presence in the United States) with an expiration date of April 27, 2000, not the correct date of November 1, 2001. In the Motion to Reconsider, ELCA claimed that this error caused Qumri to accumulate unlawful presence, starting on April 28, 2000, and that this accumulation of unlawful presence subjected Qumri to a ten-year re-entry bar, pursuant to 8 U.S.C. § 1182(a)(9)(B).*fn3
Plaintiffs therefore requested that the INS remedy this oversight by issuing a new I-94 card with a correct expiration date of November 1, 2001, or by providing a written finding that Qumri was in lawful status until that time.
On March 6, 2002, the INS responded and reaffirmed its denial. The INS provided: [T]he fact still remains that the validity of the beneficiary's approved H-1B petition expired on November 1, 2001–more than two months prior to filing the request for extension of stay. Thus, after a complete review of the record... the grounds of denial have not been overcome.
Ex. 7 at 1-2 (Way Ltr. to ELCA, Mar. 6, 2002). The INS addressed neither plaintiffs' requests regarding the I-94 card's erroneous expiration date nor ELCA's proffered explanation for its failure to timely file.
One month after receiving this second denial, plaintiffs filed with the INS a Notice of Appeal. There, plaintiffs challenged four separate actions by the INS: (1) the INS's failure to correct Qumri's I-94 card to extend Qumri's lawful stay from April 27, 2000, until November 1, 2001; (2) its refusal to rule that Qumri had not accrued unlawful presence while seeking to correct the error on Qumri's I-94 card; (3) its conclusion that it lacked the power to extend the stay of an H-1B nonimmigrant prior to the LCA approval date; and (4) its failure to address whether the stated reasons for plaintiffs' failure to file the H-1B visa petition within the applicable deadline constituted"extraordinary circumstances" beyond plaintiffs' control, pursuant to § 214.1(c)(4). Ex. 8 at 1 (Notice of Appeal, Apr. 4, 2002).
On May 16, 2002, the INS responded to plaintiffs' Notice of Appeal. The INS's letter first stated that a denial of an extension of nonimmigrant stay is not administratively appealable and therefore that the"Appeal" would be treated as a second Motion to Reopen. The INS's letter then went on to state that plaintiffs' Motion to Reopen was denied on the grounds that Qumri had allowed his H-1B status to expire on November 1, 2001. The INS reiterated:
[I]t is the alien's responsibility to maintain a valid nonimmigrant status while remaining in the United States.... [and] in spite of counsel's assertions, the fact remains that the validity of the beneficiary's approved H-1B petition expired on November 1, 2001–more than two months prior to filing the request for extension of stay.
Ex. 9 at 2 (Way Ltr. to ELCA, May 16, 2002).
On June 27, 2002, approximately one month after receiving this third denial, plaintiffs filed the instant action, including a request for a preliminary injunction. On October 3, 2002, the court held a hearing on plaintiffs' motion for a preliminary injunction, and in an oral ruling issued that day, concluded that plaintiffs were entitled to a preliminary injunction to prevent defendants from taking any adverse actions against them during the pendency of the litigation.*fn4 Shortly thereafter, defendants filed the instant motion to dismiss, or for summary judgment, and plaintiffs filed their cross-motion for summary judgment. These motions are currently before this court.
In this action, plaintiffs advance two claims. Plaintiffs first challenge defendants' refusal to grant plaintiffs' petition for an extension of stay, pursuant to 8 C.F.R. § 214.1(c)(4). Section 214.1(c)(4) provides:
An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service... where it is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay ...