The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
This case presents the Court with a question of pure statutory
construction. Does Congress confer discretion upon a federal official
when it says that he "may" act as he "deems," but does not specify, as it
does elsewhere in the same statute, that he can act "at his discretion"?
The statute in question is the Immigration and Naturalization Act,
8 U.S.C. § 1101 et seq. The official in question is the
Attorney General of the United States acting through his designee, the
Commissioner of the Immigration and Naturalization Service ("INS").*fn1
The plaintiffs are aliens who have been conducting medical research in
the United States and who have been denied immigrant visa applications,
most specifically by denying them waivers of job-offer and
labor-certification requirements on the grounds of a lack of national
interest in their work. The
parties argue over whether the Court has jurisdiction to review the
denial of waivers to the plaintiffs and seek a ruling on this threshold
jurisdictional issue before briefing the full merits.
After careful consideration of the parties' excellent briefs and the
entire record, the Court finds that it does not have jurisdiction over
this matter. The complaint will be dismissed.
The specific facts that pertain to each plaintiff are not critical to
resolution of the preliminary legal issue of the Court's jurisdiction.
Plaintiffs Zhouqin Zhu, Xiaquin Huang, Behanu Habulihaz, Haisu Yang, and
Jiangli Yan are Chinese citizens. They are medical researchers who filed
employment-based visa petitions seeking classification as alien "members
of the professions holding advanced degrees or who have exceptional
ability." See 8 U.S.C. § 1153(b)(2)(A). They asked for
waivers of the requirement that they have a job offer and labor
certification (that no U.S. resident can perform their work adequately),
because it is in the national interest to grant their visa requests. The
INS denied their requests for waivers, concluding that waivers were not
in the national interest. Plaintiffs appealed the denials to the Office
of Administrative Appeals ("AAO"), the agency body that exercises the
appellate jurisdiction of the Associate Commissioner of Examinations.
See 8 C.F.R. § 103.3(a)(1)(iv). The AAO affirmed the denial
of the employment-based immigrant visa petitions for Plaintiffs Zhu,
Huang, Habulihaz and Yang and dismissed their appeals. The AAO found that
they had not established that an exemption from the job offer requirement
would be in the national interest. When the complaint was filed,
Plaintiff Yan's appeal was still pending before AAO; it has since been
STATUTORY AND REGULATORY FRAMEWORK
The INS has adopted a multi-step process for applications from
individuals seeking immigrant visas under 8 U.S.C. § 1153(b)(2)(A)(1)
(members of the professions holding advanced degrees or who have
exceptional ability). In this process, a "labor certification" must first
be obtained from the Department of Labor ("DOL"). The prospective
employer must persuade DOL that: (1) there are insufficient numbers of
equally qualified domestic workers; and (2) the employment of the
immigrant will not adversely affect the wages and working conditions of
similarly employed persons in the United States.
8 U.S.C. § 1182(a)(5)(A) & (D); 8 C.F.R.
§ 204.5(k)(4)(2003). Armed with its labor certification, the
employer can then file a petition with the INS seeking to classify the
prospective employee/immigrant as a qualifying alien.
The INA includes a provision that allows the Attorney General
(delegated to the Commissioner) to permit a prospective immigrant under
§ 1153 to immigrate without a job offer from a specific prospective
employer and without a labor certification.
8 U.S.C. § 1153(b)(2)(B)(i); see also 8 C.F.R. § 2.1 and
204.5(k)(4)(ii) (2003). The INS waives the job offer/labor certification
requirement only if the immigrant meets the "national interest" standard.
See 8 U.S.C.
§ 1153(b)(2)(B) ("[T]he Attorney General may, when the Attorney
General deems it to be in the national interest, waive the requirements
of subparagraph (A) that an alien's services in the sciences, arts,
professions, or business be sought by an employer in the United
States."). Critical to the question of the Court's jurisdiction is also
8 U.S.C. § 1252(a)(2)(B)(ii), which provides, "Notwithstanding any
other provision of law, no court shall have jurisdiction to review
(ii) any other decision or action of the Attorney General the
authority for which is specified under this title to be in the discretion
of the Attorney General. . . ."
The government has filed a motion to dismiss pursuant to FED. R. CIV.
P. 12(b)(1), asserting that there is no subject matter jurisdiction to
review plaintiff's claims. When faced with a facial challenge to subject
matter jurisdiction under FED. R. CIV. P. 12(b)(1), as is presented here,
the Court applies substantially the same standard of review that is used
to evaluate FED. R. CIV. P. 12(b)(6) motions. See Vanover v.
Hantman, 77 F. Supp.2d 91, 98 (D.D.C. 1999). The court must accept
as true all of the plaintiff's well-pled factual allegations and draw all
reasonable inferences in favor of the plaintiff; however, the court does
not need to accept as true the Plaintiff's legal conclusions. See
Alexis v. District of Columbia, 44 F. Supp.2d 331, 336-37 (D.D.C.
1999). The court may dismiss a complaint for lack of subject-matter
jurisdiction only if "`it appears beyond doubt that the ...