United States District Court, N.D. California
For GCCG, Inc., Yao Zhang, Plaintiffs: Love Melville Macione, LEAD ATTORNEY, Schein & CAI LLP, San Jose, CA.
For Eric Holder, United States Attorney General, Janet Napolitano, Secretary of Homeland Security, Alejandro Mayorkas, Director, United States Citizenship and Immigration Services, Rosemary Langley Melville, Director, California Service Center United States Citizenship and Immigration Services, Defendants: Lana Vahab, LEAD ATTORNEY, Department of Justice, Civil Division - Office of Immigration Litigation, Washington, DC.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE.
This case requires the Court to determine, in the context of an administrative agency's decision not to grant a nonimmigrant visa, whether a non-citizen employee's job constituted a " specialty occupation" under the Immigration and Nationality Act (" INA" ). The distinction between specialty occupation and non-specialty occupation is important because the INA authorizes temporary visas for nonimmigrant aliens who are sponsored by an employer to perform a " specialty occupation." Wine distributor GCCG and its accountant Yao Zhang (" Plaintiffs" ) argue that the government defendants (" Defendants" ) have incorrectly relied on a determination by United States Citizenship and Immigration Services (" USCIS" ) that Zhang's job responsibilities are more similar to those of a bookkeeper--which is not a specialty occupation--than an accountant, which is a specialty occupation. Defendants argue that regardless of his title, Zhang was substantially performing the work of a bookkeeper as described by the Bureau of Labor Statistics' Occupational Outlook Handbook (" OOH" ), and that the employer did not meet its burden to establish that a small wine distributor needed the services of a certified accountant.
GCCG, Inc. is a wine distributor based in Fremont, California that employs five people and reports annual proceeds of more than $1 Million. Certified Administrative Record (" A.R." ) (dkt. 14-2) at 18, 30. On April 1, 2012, GCCG filed a petition with USCIS to obtain an H-1B nonimmigrant specialty worker visa for Zhang, a Chinese national, so that he could work as a part-time accountant. Id. at 29. On May 15, 2012, USCIS issued a Request For Evidence for information related to Zhang's employment, including a more specific job description, job listings for accounting positions listed by similarly sized companies, evidence of past employment practices, proof that similarly situated companies regularly employed accountants, and letters or affidavits from people in the industry attesting that such companies routinely employ accountants. See id. at 79-81. Plaintiffs submitted this information on August 6, 2012. See id. at 82-118. As part of this response, Plaintiffs listed eleven of Zhang's employment responsibilities:
1. Manage input, along with handling of financial data but also reports generated by the automated system used by the company (Excel, Quickbooks, Turbotax)
2. Prepare various monthly reports such as closing reports, cost accounting reports, and profit and loss statements
3. Gather information and conduct an analysis of financial information in preparation of making account entries
4. Establish and maintain new and improved control procedures being implemented into a company's accounting system.
5. Oversee different accounting systems to ensure completeness, as well as accuracy
6. Review various accounting systems and other financial systems for effectiveness and accuracy
7. Review current trends for expenditures and revenue, followed by making appropriate recommendations to company executives regarding spending, finance control, and budgeting
8. Take the lead in resolving any discrepancies pertaining to accounting
9. Provide other personnel, as well as clients and vendors with information on billing, invoice and accounting policies and procedures
10. Review new budgets, entries for payroll, prepared invoices, revenue reports, budgets, and other documents associated with accounting
11. Maintain a good relationship with auditors, whether inside or outside the company.
Id. at 102.
Meanwhile, GCCG employed Zhang as a part-time accountant. Id. at 27. Zhang worked twenty-five hours per week and received twenty-five dollars per hour, the " prevailing wage for a Level 1 accountant." Plaintiff's Motion For Summary Judgment (" P. MSJ" ) (dkt. 15) at 2. Zhang has a Master's Degree in Business Administration from Northwestern Polytechnic University, which is located in California. A.R. at 31.
USCIS denied Plaintiffs' petition on November 8, 2012. Id. at 2. On March 4, 2013, Plaintiffs filed suit to request declaratory and injunctive relief. See Compl. (dkt. 1) at 1. Defendants filed their Motion for Summary Judgment on July 19, 2013 (" Def. MSJ" ) (dkt 14), and Plaintiffs filed their own Motion for Summary Judgment one month later. See generally P. MSJ.
II. LEGAL STANDARD
The INA permits non-citizen temporary workers to work in the United States if they are sponsored by an employer in a " specialty occupation." 8 U.S.C. § 1101(a)(15)(H)(i)(b). A specialty occupation requires " (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." 8 U.S.C. § 1184(i)(1). Accounting is explicitly listed as an occupation that satisfies the specialty occupation requirement. 8 C.F.R. § 214.2(h)(4)(ii) (including a non-exhaustive list of fields that are presumed to be specialty occupations).
The employer can also establish that the employee performs a specialty occupation by showing that the position meets one of four criteria:
1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry ...