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Noble House, Inc v. Marilyn Wiles

March 19, 2013

NOBLE HOUSE, INC., PLAINTIFF,
v.
MARILYN WILES, DIRECTOR, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, NEBRASKA SERVICE CENTER; ALEJANDRO MAYORKAS, DIRECTOR, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Percy Anderson United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff Noble House, Inc. challenges, pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706, the denial of its I-140 Immigrant Petition, submitted on behalf of Anook K. Baranwal, by the United States Citizenship and Immigration Services.

The Parties filed Trial Briefs and exchanged proposed Findings of Fact and Conclusions of Law. On March 19, 2013, following the submission of the Certified Administrative Record ("CAR") and briefing by the parties, the Court, sitting without a jury, conducted a bench trial. Having considered the materials submitted by the parties and reviewing the evidence, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a):*fn1

I. Findings of Fact

1. Plaintiff Noble House, Inc. ("Noble House") is a California corporation engaged in the business of importing and distributing hand-made rugs and other furnishings manufactured by Kailash Rug Industries.

2. Kailash Rug Industries is a foreign corporation established in India. Noble House qualifies as a "subsidiary" of Kailash Rug Industries within the meaning of the Immigration and Nationality Act ("INA"). See 8 C.F.R. § 214.2(l)(ii)(K) ("Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.").

3. Anoop K. Baranwal ("Baranwal") is a national of India and an employee of Noble House.

4. In 2003, Noble House applied to the United States Citizenship and Immigration Services ("USCIS") for a non-immigrant L-1A visa for Baranwal. USCIS granted the L-1A petition. (CAR 552.)

5. In 2004, 2006 and 2008, Noble House filed with USCIS three requests for extension of Baranwal's L-1A visa. USCIS approved each extension.

6. After exhausting the number of L-1A visa extensions Baranwal could obtain, Noble House filed, on December 15, 2009, an employment-based immigrant visa petition (Form I-140, Petition for Immigrant Worker) ("I-140 petition") on behalf of Baranwal with USCIS's Nebraska Service Center. Noble House's petition sought to accord Baranwal status as an immigrant worker classified under Immigration and Nationality Act (INA) § 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager.*fn2 (CAR 1.)

7. In support of the I-140 immigrant visa petition, Noble House submitted evidence demonstrating that it intended to continue to employ Baranwal it what it contended was an executive capacity. This documentation included a 6 page job description of the United States and foreign positions held by Baranwal, organizational charts depicting the management hierarchy, lists of employees and their job duties in the United States and abroad, proof of finances, and tax returns. (CAR 5-9.)

8. In support of the I-140 petition, Noble House also provided a percentage breakdown of the time devoted to each duty by Baranwal as well as a list of full-time employees and independent sales representatives working under Baranwal. (CAR5)

9. Noble House submitted with the I-140 petition an explanation of Baranwal's duties in the United States, including determining product range, gauging market trends through review and analysis of sales figures and communications with subordinate sales manager and staff, directing marketing and sales and formulating marketing and sales strategy to be employed by the company, determining which trade shows the company should participate in, and visiting large customers to develop relationships and to observe the competition. (CAR 5-9.)

10. USCIS issued a request for additional evidence ("RFE") to Noble House on March 12, 2010, requesting a detailed description of Baranwal's duties abroad and at Noble House. The RFE asked Noble House to include what actual specific, day-to-day tasks were involved with the completion of each duty. The descriptions were to be supplemented with an estimate of the percentage of time the beneficiary dedicated to each specific duty. The RFE requested a detailed description of the job duties of the beneficiary's immediate supervisor and subordinated employees listed on the organizational charts for both the United States entity and the foreign employer. USCIS also sought the 2008 and 2009 Form W-2, Wage and Tax Statement for the beneficiary and Form W-2 or Form 1099, Miscellaneous Income Statement issued for all of the employees or independent contractors subordinate to the beneficiary with the Social Security numbers redacted for these individuals. USCIS also requested a recent complete work schedule for Noble House indicating on which days and what hours each employee worked and the hours of operation. (CAR 333-34.)

11. Noble House responded to the RFE on April 22, 2010. With regard to the position in the United States, Noble House characterized Baranwal's duties as follows:

* Analyzing the product trends and the products to be imported - 10%

* Deciding the products and their quantities to be imported - 5%

* Traveling abroad for sourcing and purchases - 5%

* Analyzing the marketing trends and suitable strategy to be adopted for marketing and sales - 5%

* Interacting with sales reps - 10%

* Interacting and visiting customers - 20%

* Attending the trade shows - 5%

* Analyzing the inventory and sales aspects - 10%

* Analyzing and evaluating the financial health and other financial aspects with the help ...


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