8 U.S.C. § 1101 (a)(13)(A). The sole issue confronting the court
is whether, as a matter of law, the 97 days spent outside of the United
States should count toward the six-year limit on plaintiffs authorized
The statute is silent as to how the six-year period should be
calculated. In general, if a statute is silent or ambiguous with respect
to the specific issue, the agency's position on the matter is entitled to
deference. See Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984). However, "[a]n 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."
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94
L.Ed.2d 434 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct.
1673, 68 L.Ed.2d 80 (1981)). See also Seldovia Native Ass'n, Inc. v.
Lujan, 904 F.2d 1335, 1345 (9th Cir. 1990) ("When an agency reverses a
prior policy or statutory interpretation, its most recent expression is
accorded less deference than is ordinarily extended to agency
determinations."). Here, defendants do not deny that in the past the INS
has tolled the six-year period during an alien's absence. Because
defendants have failed to provide any explanation for the INS' change in
policy, the court is not bound to construe the statute as defendants
urge. See Id. (where an agency changes its position, the agency "will be
required to show not only that its new policy is reasonable, but also to
provide a reasonable rationale supporting its departure from prior
Moreover, defendants' position appears to conflict with the INS' own
regulations. Specifically, 8 C.F.R. § 214.2 (a)(h)(13)(iii) provides
that an H-1B alien "who has spent six years in the United States . . .
may not seek extension, change status, or be readmitted to the United
States . . . unless the alien has resided and been physically present
outside the United States . . . for the immediate prior year." (emphasis
added). Federal courts "need not defer to the BIA's reading of an INS
regulation if an `alternative reading is compelled by the regulation's
plain language or by other indications of the [agency's] intent at the
time of the regulation's promulgation.'" Lai v. I.N.S., 2001 WL 74058,
*4, ___ F.3d ___ (9th Cir. July 3, 2001) (quoting Thomas Jefferson
University, 512 U.S. at 512, 114 S.Ct. 2381 (in turn quoting Gardebring
v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 99 L.Ed.2d 515 (1988))).
Here, the plain language of the regulation would appear to compel the
conclusion that the six-year period only includes time spent physically
present in the United States. Moreover, as noted, this is the position the
INS has taken in the past with respect to other aliens.
In sum, the court concludes that in light of (1) the statute's silence
on the issue of how the six-year period set forth in 8 U.S.C. § 1184
(g)(4) shall be determined; (2) the language of 8 C.F.R. § 214.2
(a)(h)(13)(iii), which provides that the six-year period is based on time
"spent . . . in the United States"; (3) defendants' prior position on
this issue; and (4) defendants' failure to explain the departure from the
INS' previous practice, defendants unlawfully included the 97 days
defendant Sandeep Nair was outside of the United States when calculating
the six-year period in this case.
For the reasons set forth above, plaintiffs' motion for summary
judgment is granted. Defendants' motion for summary judgment is denied.
Defendants shall grant, nunc pro tunc, an extension of stay
and eligibility for employment as an H-1B temporary worker to Sandeep
Nair and an extension of stay in H-4 status to Asha Nair to November 28,
2000. Defendants are hereby enjoined from enforcing any provision of
8 U.S.C. § 1182 (a)(9) against plaintiffs. The Clerk shall
termination this action accordingly.
IT IS SO ORDERED.
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