Previous Grant of a Temporary Visa Does Not Bind The USCIS to Grant a Permanent Visa Based on Similar Criteria
The procedural history, facts of record, holding and rationale in Yogi Metals Group, Incorporated; Vinod Moorjani v. Garland (June 28, 2022) No. 21-20615 are as follows:
Case History
The Petitioner applied for an EB-1C visa for one of its employees.
The United States Customs and Immigration Services (“USCIS”) denied the application.
The visa employer/applicant and the visa beneficiary filed suit in federal district court.
The district court granted summary judgment to USCIS.
The Appellants filed a petition for review.
Facts
- In 2015, Yogi Metals Group, Inc., a Texas corporation acquired a 50% interest in SS Impex, an Indian company.
- In 2017, Yogi Metals Group, Inc. In 2017, Yogi Metals appointed Vinod Moorjani, an SS Impex employee, as the general manager of the Yogi Metals Group Inc. scrapyard in Houston, Texas, where he was working under a L-1A visa (a temporary nonimmigrant classification enabling the transfer by U.S. employers of an executive or manager from an affiliated foreign office to a U.S. office). See 8 C.F.R. § 214.2(l)(1).
- Yogi Metals Group, Inc. then applied for an employment based visa for Vinod Moorjani which would allow Vinod Moorjani to change from his nonimmigrant L-1A classification to a lawful permanent resident EB-1C classification. See section 203(b)(1)(C) of the Immigration and Nationality Act, as amended (“the Act”); 8 C.F.R. § 204.5(j)(2).
- After issuing two notices of intent to deny and considering the Yogi Metals Group, Inc. response, the United States Customs and Immigration Services (“USCIS”) denied the EB-1C visa petition on behalf of Vinod Moorjani.
- Yogi Metals Group, Inc. and Vinod Moorjani filed suit in the United States District Court for the Southern District of Texas, that the denial of the visa application by the USCIS was arbitrary and capricious.
- The United States District Court granted summary judgment to the USCIS, concluding that Yogi Metals and Moorjani failed to demonstrate that Vinod Moorjani would be employed in a managerial capacity to qualify for a EB-1C visa.
- Yogi Metals Group, Inc. and Moorjani timely appealed.
Held
AFFIRMED judgment of the United States District Court, granting summary judgment to the USCIS.
Rationale
The Appellants asserted: 1) that the USCIS acted arbitrarily and capriciously by determining that Vinod Moorjani was not primarily engaged in a managerial capacity, and thus ineligible for the EB-1C visa; and 2) that the USCIS acted arbitrarily and capriciously in denying the EB-1C visa petition after granting Vinod Moorjani a temporary L-1A visa, with requirements similar to the requirements of a permanent EB-1C visa. Compare 8 C.F.R. § 214.2(l)(1)(ii)(B) with 8 C.F.R. § 204.5(j)(2).
The Fifth Circuit Court of Appeal reasoned as follows:
- The denial of a visa application is an agency action which stands unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law.” See 5 U.S.C. § 706(2)(A).
- “A decision is arbitrary or capricious only when it is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Wilson v. U.S. Dep’t of Agric., 991 F.2d 1211, at 1215 (5th Cir. 1993).
- Under section 203(b)(1)(C) of the Act, aliens may apply for an employment-based visa if they render services to a multinational corporation in a managerial or executive capacity.
- As defined by section 101(a)(44)(A) of the Act, an employee acts in a managerial capacity if they “primarily” manage the organization and supervise the work of other supervisory or professional employees.
- However, “[a] first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.” See section 101(a)(44)(A)(iv) of the Act.
- In the organizational chart provided by Yogi Metals Group, Inc., there are employees lower than Vinod Moorjani on the organizational chart, but there are no lines indicating that any employees reported to Vinod Moorjani or that Vinod Moorjani acted in a managerial capacity.
- Of the eight duties listed for Vinod Moorjani only two are clearly managerial and comprise only 35% of his time.
- Therefore, the evidence in the record under review does not establish that USCIS acted arbitrarily or capriciously in determining that Moorjani was not primarily engaged in a managerial capacity, and thus ineligible for the EB-1C visa.
- With regard to Appellants’ argument that the USCIS acted arbitrarily and capriciously in denying the EB-1C visa petition, after having granted Vinod Moorjani a temporary L-1A visa with similar requirements, the Appellants did not present this argument to the United States District Court.
- Therefore, an appellate court cannot consider arguments first raised on appeal. Est. of Duncan v. Comm’r, 890 F.3d 192, at 202 (5th Cir. 2018).
- Nevertheless, the previous grant of a temporary visa does not bind the USCIS to later grant a permanent visa. Nat’l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, at 1476 (5th Cir. 1989).
Commentary
The language used in 8 C.F.R. § 214.2(l)(1)(ii)(B) relating to the requirements for an L-1A visa is as follows:
(B) Managerial capacity means an assignment within an organization in which the employee primarily:
(1) Manages the organization, or a department, subdivision, function, or component of the organization;
(2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.
The language used in 8 C.F.R. § 204.5(j)(2) relating to the requirements for an EB-1C visa is as follows:
Managerial capacity means an assignment within an organization in which the employee primarily:
(A) Manages the organization, or a department, subdivision, function, or component of the organization;
(B) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
(C) If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(D) Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.
Obviously, the language of these two regulations is very similar. In particular, the primary difference between 8 C.F.R. § 214.2(l)(1)(ii)(B), relating to the requirements for an L-1A visa, and 8 C.F.R. § 204.5(j)(2), relating to the requirements for an EB-1C visa, seems to be the omission of the condition in the fourth paragraph of 8 C.F.R. § 204.5(j)(2) that “employees supervised are professional.”
Comparison of the regulations alone seem to favor the Appellants’ position that the USCIS acted arbitrarily and capriciously by determining that Vinod Moorjani was not primarily engaged in a managerial capacity. However, the statute that defines “managerial capacity” includes the condition that “employees supervised are professional.” See section 101(a)(44)(A)(iv) of the Act.
The Fifth Circuit Court of Appeal did not consider the Appellants' complaint that the USCIS acted arbitrarily and capriciously in denying the EB-1C visa petition, after granting Vinod Moorjani a temporary L-1A visa with requirements similar to the requirements of a permanent EB-1C visa, because they did not specifically assert the complaint before the United States District Court.
Nevertheless, the Fifth Circuit Court of Appeal provided a strong hint that a previous grant of a temporary visa does not bind the USCIS to later grant a permanent visa, even when the criteria for both the temporary and permanent visas are substantially similar.
This strong hint of deference to agency decision making was not essential to the outcome in Yogi Metals Group, Inc. v. Garland. Instead of directly ruling on the claim, the Fifth Circuit Court of Appeal dismissed it because it was not presented to the United States District Court. Consequently, it must be classified as obiter dictum (i.e. legalese literally meaning in Latin "other things said"). As a matter of law, obiter dictum is not precedential, but in the context of Yogi Metals Group, Inc. v. Garland, the Fifth Circuit Court of Appeal clearly revealed how it would rule.
The precedential portion of the rationale in Yogi Metals Group, Inc. v. Garland rests on the evidence of record which reveals, in part, that Vinod Moorjani only spends about 35% of his time in a managerial capacity and the heavy burden of proving that a USCIS decision is arbitrary and capricious.