qualify for the visa, “an alien must satisfy a two-prong test: (1) the position that the alien seeks to
occupy must qualify as a ‘specialty occupation’; and (2) the alien must [himself] be qualified to
perform services in that occupation.”” Tapis Int'l v. INS, 94 F. Supp. 2d 172, 174 (D. Mass.
2000), quoting Shanti Inc. v. Reno, 36 F. Supp. 2d 1151, 1153 (D. Minn. 1999).

A specialty occupation is an occupation that requires theoretical and practical application
of a body of highly specialized knowledge and “attainment of a bachelor’s or higher degree in the
specific specialty (or its equivalent) as a minimum for entry into the occupation... .” 8 U.S.C.

§ 1184(i)(1). INS regulations further define a “specialty occupation” as

. . . an occupation which requires theoretical and practical application of a body of
highly specialized knowledge in fields of human endeavor including but not
limited to, architecture, engineering, mathematics, physical sciences, social
sciences, medicine and health, education, business specialties, accounting, law,
theology, and the arts, and which requires the attainments of a bachelor’s degree
or higher in a specific specialty, or its equivalent, as a minimum for entry into the
occupation in the United States.

8 CER. § 214.2(h)(4)(ii).
To qualify as a specialty occupation, INS regulations require that a position meet one of
the following criteria,

(1) A baccalaureate or higher degree or its equivalent is normally the minimum
requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among
similar organizations or, in the alternative, an employer may show that its
particular position is so complex or unique that it can be performed only by an
individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that
knowledge required to perform the duties is usually associated with the attainment
of a baccalaureate or higher degree.

Ziglar does not dispute that Garcia is qualified to perform services in the occupation of fashion design.

4



After reviewing the evidence and bearing in mind the deferential standard of review, the
court concludes that the INS decision was not an abuse of discretion. The INS determined that
Heyman did not establish that in the past a baccalaureate degree was required. Heyman, while
claiming that all of its hires in the last five years have held bachelor’s degrees, followed this up
with evidence of its last five hires. If this were a de novo review of the INS decision, the court
may have found this evidence enough to show that a bachelor’s degree is normally required at
Heyman. On an abuse of discretion standard, however, the court cannot say that the evidence of
the last five hires is enough. The INS may have justifiably believed that this evidence did not
establish that a bachelor’s degree is normally required. The INS seemed to say as much when
they noted that Heyman “has not provided a list of its designers and their degree,” suggesting that
the last five hires were an insufficient sampling to sway the Administrative Appeals Unit.

Moreover, the INS also found that the term “relevant experience” had not been
sufficiently defined by Heyman. While Garcia does argue that the term was defined by
Heyman’s statement “If the work experience was relevant to the skills learned through a degree
in fashion design, we would consider that person for hiring,” the court does not believe that the
INS abused its discretion in finding this definition lacking. Heyman’s definition does not
actually define what type of work experience would be relevant, other than “skills leammed
through a degree in fashion design.” Heyman attempted to define relevant experience by saying
experience that is relevant to them in the fashion design industry. The INS did not abuse its
discretion by concluding that this definition was insufficient because it did not actually point to
the types of experience that Heyman found relevant. As such, the court concludes that the INS

decision was not an abuse of discretion.



appealed this decision to the Office of Administrative Appeals, which denied the visa petition on
grounds that Heyman had failed to meet its burden of establishing that fashion design is a
specialty occupation. According to the Office of Administrative Appeals, Heyman had failed to
demonstrate that it required a bachelor’s degree or higher as a job requirement, had not
established that such a requirement was’standard in the industry, and had not demonstrated that
the particular position or specific duties were sufficiently complicated or complex that a
bachelor’s degree or higher was required. (C.R. 38-42.)
STANDARD OF REVIEW
Because the court reviews an INS interpretation of the Immigration and Nationality Act
(“INA”), the INS decision “is entitled to deference and should be accepted unless demonstrably
irrational or clearly contrary to the plain meaning of the statute.” Occidential Eng’g v. INS,
753 F.2d 766, 768 (9th Cir. 1985). The court’s review in this case is limited to the determination
of whether the INS’s denial of Garcia’s visa petition constituted an abuse of discretion.
Grimson v. INS, 934 F. Supp. 965, 967 (N.D. Ill. 1996). The test for abuse of discretion in an
immigration case is that “[t]he decision must be upheld unless it was made without a rational
explanation, inexplicably departs from established policies, or rests on an impermissible basis
such as invidious discrimination against a particular race or group.” Id., citing Bal v. Moyer,
883 F.2d 45,-47 (7th Cir. 1989). Factual findings underlying an exercise of discretion must be
supported by substantial evidence. Patel v. INS, 811 F.2d 377, 382 & n.11 (7th Cir. 1987).
DISCUSSION

Under the INA, an alien may obtain a H-1B visa for temporary admission to the United

States to “perform services . . . in a specialty occupation.” 8 U.S.C. § 1101(a)(15)(H)(iX(b). To



8 C.F.R. § 214.2(h)(4)(iii(A). An application for a speciality occupation must be accompanied
by “documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews,
or any other required evidence sufficient to establish that the beneficiary is qualified to perform
services in a specialty occupation... .” 8 C.F.R. § 214.2(h)(4)(iv).

Garcia relies on part (3) of the above INS standards, arguing that Heyman illustrated that
it “normally requires a degree or its equivalent for the position.” Garcia points out that Heyman
provided the INS a letter stating

In today’s fashion industry, a bachelor’s degree has become the minimum entry

requirement for the field. We have hired many designers over the past 5 years,

and all of them hold at least a bachelor’s degree in fashion design or a related

field, or have many years of experience in the field.

(C.R. 10.)

Moreover, in its response to an INS request for evidence, Heyman further stated that it

does not list educational requirements in its fashion design announcements

because we do not want to preclude individuals with relevant experience, but no

degree. Nevertheless, all of our recent hires as entry-level fashion designers have

design degrees. We do most of our recruiting through the design schools.

Attached to this letter are the names and degrees of the last four people hired for

the position. If an individual applied for the position without a degree, but with

several years of experience, we would certainly consider the qualifications of such

person. If the work experience was relevant to the skills learned through a degree

in fashion design, we would consider that person for hiring.

(C.R. 25.) The attachment Heyman included listed four recent hires: two with degrees in
Fashion Design, one with a degree in Apparel Design, and one with a degree in Environmental
Textile and Apparel Design. (C.R. 26.)

The INS Administrative Appeals Unit analyzed Heyman’s claim and found,

The petitioner has not shown that it has, in the past, required the services of
individuals with baccalaureate or higher degrees in a specialized area for the



CONCLUSION
For the reasons stated above, Garcia’s motion for summary judgment is denied [#5] while
Ziglar’s motion for summary judgment is granted [#9]. The clerk is instructed to enter judgment

in favor of Ziglar. This case is terminated.

ENTER: Shae tKhefter

(Aoan HUMPHREY LEFKOW
United States District Judge

Dated: February 11, 2003


United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Oth
Mor Magistrate Judge Joan H. Lefkow than “Assigned Jodge
CASE NUMBER 02 C 2033 DATE 2/11/2003
CASE Garcia vs. Ziglar
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due.
(4) Qo Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(© oO Pretrial conference[held/continued to} [set for/re-set for] on set for at .
(a) o Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4{m) CO Local Rule 41.1 OFRCP41(a\(1) O FRCP41(a)(2).
do [Other docket entry] | Enter Memorandum Opinion and Order. Motion of plaintiff Garcia for
summary judgment [5-1] is denied, and motion of defendant Ziglar for summary judgment [9-1] is
granted. Judgment is entered in favor of defendant Ziglar.
al) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.
vo | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.
wv | Mail AO 450 form. Mailed by MD, Lunas jk 1S!d sn

Copy to judge/magistrate judge.

courtroom S:h ud tl dddey
deputy’s

initials

UT Upncttne rletted in

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proffered position.

The petitioner has not provided a list of its designers and their degrees. In

addition, the petitioner has not provided a definition of the term “relevant

evidence.”

(C.R. 41) (emphasis in original).

Garcia claims that the INS abused its discretion because the record shows that Heyman
stated that it had hired many designers over the past 5 years and that “all of them hold at least a
bachelor’s degree in fashion design or a related field, or have many years of experience in the
field.” (C.R. 10.) In addition, Garcia claims that Heyman did provide a list of its last four hires,
all of whom held degrees in fashion design or related fields. (C.R. 26.) Finally, Garcia claims
that Heyman did define the term “relevant experience” when it stated that “Heyman Corporation
does not list educational requirements in its fashion design announcements because we do not
want to preclude individuals with relevant experience, but no degree.” (C.R. 25.) Garcia
maintains that Heyman clearly stated that relevant experience meant “work experience that was
Televant to the skills learned through a degree in fashion design ....” (Id.)

Ziglar responds that the INS was correct in its finding that Heyman did not require the
services of an individual with a baccalaureate or higher degrees in a specialized area for the
proffered position because Garcia has done nothing to establish that Heyman required an
undergraduate degree or its functional equivalent as a job requirement. Ziglar points out that
Heyman said that it “does not list educational requirements in its fashion designer job
announcements because we do not want to preclude individuals with relevant experience, but no

degree, from applying for a position.” Moreover, Ziglar argues that the INS was correct in its

assertion that no definition of relevant experience is presented in the evidence.



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
MARIA CLARA GARCIA, )
)
Plaintiff, )
)
vs. ) No. 02 C 2033
) Judge Joan H. Lefkow
JAMES W. ZIGLAR, Commissioner of the )
Immigration and Naturalization Service, )
: DocKETEn
Defendant. ) FEB 12 2003
)

MEMORANDUM OPINION AND ORDER

Plaintiff, Maria Clara Garcia (“Garcia”) brings suit against defendant, James W. Ziglar
(“Ziglar”), Commissioner of the Immigration and Naturalization Service (“INS”), alleging that an
INS decision denying Garcia a non-immigrant employment visa was arbitrary, capricious and an
abuse of discretion. Before the court are cross-motions for summary judgment. For the reasons
set forth below, Garcia’s motion is denied and Ziglar’s motion is granted.

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The

party seeking summary judgment bears the initial burden of proving there is no genuine issue of

\(2—



material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Jd. at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be
outcome determinative under the governing law. Jnsolia, 216 F.3d at 598-99. Although a bare
contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most
favorable to the non-moving party as well as view all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On cross-motions for summary
judgment, the court must consider the merits of each motion and assess the burden of proof that
each party would bear on an issue at trial. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461
(7th Cir. 1997).
BACKGROUND

Garcia is a native and citizen of Columbia’ who was admitted to the United States as a
student. After Garcia obtained an undergraduate degree in fashion design from Columbia
College Chicago, the Heyman Corporation (“Heyman”), a manufacturer of children’s clothing,
wished to employ Garcia as a fashion designer. Heyman then applied for a non-immigrant
employment visa for Garcia on the grounds that a fashion designer is a specialty occupation.

Heyman’s petition was denied at the INS Nebraska Service Center. (C.R. 29.) Heyman

‘In his brief in Tesponse to Garcia’s motion for summary judgment and in support of his motion for
summary judgment, Ziglar states that Garcia is a native and citizen of India. The Certified Record provided to the
court illustrates that Garcia is a native and citizen of Columbia. The court assumes that the Certification materials
are correct.