IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 98-60340
______________
FEBE ROSE BELLE E DEFENSOR; VINTAGE HEALTH RESOURCES INC
Plaintiffs - Appellants
v.
DORIS MEISSNER, Commissioner of the United States
Immigration & Naturalization Service
Defendant - Appellee
Case No. 98-60357
VINTAGE HEALTH RESOURCES INC; VIVIAN MAY P SIBAYAN
Plaintiffs - Appellants
v.
DORIS MEISSNER, Commissioner of the United States
Immigration & Naturalization Service
Defendant - Appellee
Case No. 98-60358
VINTAGE HEALTH RESOURCES INC; MELODY E MENDOZA
Plaintiffs - Appellants
v.
DORIS MEISSNER, Commissioner of the United States
Immigration & Naturalization Service
Defendant - Appellee
Case No. 98-60359
VINTAGE HEALTH RESOURCES INC; FROILENE FE V ATENDIDO
Plaintiffs - Appellants
v.
DORIS MEISSNER, Commissioner of the United States
Immigration & Naturalization Service
Defendant - Appellee
Case No. 98-60360
VINTAGE HEALTH RESOURCES INC; JOCELYN A BAYUDANG
Plaintiffs - Appellants
v.
DORIS MEISSNER, Commissioner of the United States
Immigration & Naturalization Service
Defendant - Appellee
Case No. 98-60361
VINTAGE HEALTH RESOURCES INC; MARIA CECILIA D CONSOLACION
Plaintiffs - Appellants
v.
DORIS MEISSNER, Commissioner of the United States
Immigration & Naturalization Service
Defendant - Appellee
Case No. 98-60362
VINTAGE HEALTH RESOURCES INC; LEONORA B CACERES
Plaintiffs - Appellants
v.
DORIS MEISSNER, Commissioner of the United States
Immigration & Naturalization Service
Defendant - Appellee
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Appeals from the United States District Court
for the Northern District of Mississippi
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January 17, 2000
Before HIGGINBOTHAM and SMITH, Circuit Judges, and FALLON*,
District Judge.
HIGGINBOTHAM, Circuit Judge:
Vintage Health Resources and seven Filipino nurses appeal the
*
District Judge of the Eastern District of Louisiana, sitting by designation.
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district court’s affirmance of the Immigration & Naturalization
Service’s denial of H1-B visas for the nurses. Because Vintage did
not produce evidence sufficient to show that the nurses were
members of a “specialty occupation,” as required under §
101(a)(15)(H)(i)(B) of the Immigration and Nationality Act, we
AFFIRM the denial of H1-B visas.
I.
Vintage is a medical contract service agency which brings
foreign nurses into the U.S. locating jobs for them at hospitals as
registered nurses. Vintage sought to have seven Filipino nurses
classified as H-1B nonimmigrants, performing services in a
“specialty occupation.” H-1B aliens in a specialty occupation may
spend up to six years in the U.S., rather than the one year allowed
for regular business travelers.
The INS denied each petition, stating that Vintage failed to
establish that the nurses worked in a “specialty occupation,” under
§ 101(a)(15)(H)(i)(B) of the Immigration and Nationality Act. See
8 U.S.C. § 1101(a)(15)(H)(i)(B). A “specialty occupation” is
defined in part as one in which the “attainment of a bachelor’s or
higher degree . . . (or its equivalent) [is] a minimum for entry
into the occupation in the United States.” Id. § 1184(i)(1)(B).
Vintage produced evidence that it only hired nurses with
B.S.N. degrees. The INS claimed, however, that the proper focus of
inquiry is not what Vintage as an employment agency required, but
instead what the contracting facility required, and Vintage failed
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to establish that the medical facilities where the nurses would
actually work required bachelor degrees. At best, Vintage showed
that such facilities preferred nurses with B.S.N. degrees, but did
not require that nurses have B.S.N. degrees.
The seven nurses whose petitions were denied appealed to the
INS Administrative Appeals Unit, which upheld the denial. The
appellants then filed complaints in federal district court, seeking
to compel the INS to approve their petitions. The district court
dismissed their claims, determining that despite some ambiguity in
the regulations, the statutory requirement for a “specialty
occupation” was clear: the occupation must be one in which the
attainment of a bachelor’s degree or higher is the minimum for
entry into that occupation, and the nurses had failed to satisfy
that requirement. The nurses filed separate appeals, which were
then consolidated.
II.
Under the Administrative Procedure Act, agency action is
reviewed solely to determine whether it is arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.
See 5 U.S.C. § 706. In general, a federal agency’s interpretation
of a statute whose administration is entrusted to it is to be
accepted unless Congress has spoken directly on the issue. See
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844-45 (1984). Even if statutory or regulatory
language is ambiguous, deference is usually given to the agency’s
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interpretation. See United States v. Moses, 94 F.3d 182, 185 (5th
Cir. 1996). Thus, Vintage has a high hurdle to overcome in this
case which primarily concerns an agency’s interpretation of the
following statutes and regulations.
Title 8 U.S.C. § 1101(a)(15)(H)(i)(b) provides for the
temporary admission of a nonimmigrant alien “to perform services .
. . in a specialty occupation described in section 1184(i)(1) of
this title.” Section 1184(i)(1) defines “specialty occupation” as
an occupation which 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).
While the preceding is the statutory definition of “specialty
occupation,” the related regulations state that a
[s]pecialty occupation means 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
attainment 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 C.F.R. § 214.2(h)(4)(ii).
Additionally, 8 C.F.R. § 214.2(h)(4)(iii)(A) defines a
standard for specialty occupation positions. This section states
that
[t]o qualify as a specialty occupation, the position must
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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.
Id. § 214.2(h)(4)(iii)(A).
Section 214.2(h)(4)(iii)(A) appears to implement the statutory
and regulatory definition of specialty occupation through a set of
four different standards. However, this section might also be read
as merely an additional requirement that a position must meet, in
addition to the statutory and regulatory definition. The ambiguity
stems from the regulation’s use of the phrase “to qualify as.” In
common usage, this phrase suggests that whatever conditions follow
are both necessary and sufficient conditions. Strictly speaking,
however, the language logically entails only that whatever
conditions follow are necessary conditions. In other words, if a
regulation says “To qualify as a lawyer, one must have a law
degree,” then a law degree is a necessary but not necessarily
sufficient condition for becoming a lawyer, as there may be other
requirements. For example, the next regulation may say “To qualify
as a lawyer, one must pass the bar exam.”
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If § 214.2(h)(4)(iii)(A) is read to create a necessary and
sufficient condition for being a specialty occupation, the
regulation appears somewhat at odds with the statutory and
regulatory definitions of “specialty occupation.” For example, if
an employer always required a bachelor’s degree for a particular
position (but for no good reason), then the position would qualify
for a visa, but would probably not meet the statutory definition
unless one assumes that any employer’s requirements suffice to
prove the U.S. minimum for the relevant occupation.1
On the other hand, one might assume that § 214.2(h)(4)(iii)(A)
simply imposes a requirement that is related to the statutory and
regulatory definitions, but which is not a complete substitute for
them. Such a requirement would help confirm a finding that an
occupation is a specialty occupation when the occupation’s minimum
requirements were not well defined in the United States. In such
cases, requiring that the position meet one of the four §
214.2(h)(4)(iii)(A) prongs would help ensure that the occupation
was a specialty occupation. The problem with this interpretation
is that a commonsense reading of § 214.2(h)(4)(iii)(A) indicates an
intention to fully implement the definition of “specialty
occupation.”
Giving Vintage the benefit of the doubt we will assume
arguendo that § 214.2(h)(4)(iii)(A) creates necessary and
1
In many cases, such an assumption might be a good rule of thumb for defining
“specialty occupation,” since an employer incurs a cost by only hiring applicants
with degrees. However, if the “employer” is an employment agency, such an
assumption may no longer be valid, since the true employer may also be hiring
those without degrees for the position.
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sufficient conditions for the category of “specialty occupation.”
Vintage argues that under the third prong, its seven nurses are
entitled to visas because Vintage required all of its contract
employees to have B.S.N. degrees before it contracted them to
medical facilities. Vintage, however, puts forward no reason that
it has such a requirement, although the regulation admittedly does
not require one. Instead, Vintage simply wants to use its token
degree requirements to mask the fact that nursing in general is not
a specialty occupation.2
In a situation such as this one, however, it does injustice to
the statute and regulations to view Vintage as the only relevant
employer. For in addition to its token degree requirements, Vintage
is at best a token employer. Under § 214.2(h)(4)(ii)(2), an
employer is someone who “[h]as an employer-employee relationship
with respect to the employees . . ., as indicated by the fact that
it may hire, pay, fire, supervise, or otherwise control the work of
any such employee.” It is unclear whether Vintage’s ability to
simply “hire” or “pay” an employee is sufficient standing alone to
grant Vintage employer status under this definition. Another
interpretation would be that “hire, pay, fire, supervise” are to be
read conjunctively as one prong of the test and “otherwise control
the work” is to be viewed as an independent prong of the test.
Under the latter interpretation, merely being able to “hire” or
2
A bachelor’s degree is not a minimum requirement for being a nurse in the
United States; associate degrees and other diplomas are accepted. See, e.g.,
DEPARTMENT OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK (1996-1997). Notably, Vintage does
not contend that its nurses are practicing in a specialized area of nursing which
might have different requirements than that of general nursing.
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“pay” an employee, by itself, would be insufficient to grant
employer status to an entity that does not also supervise or
actually control the employee’s work.
While the second interpretation accords better with the
commonsense notion of employer, we need not decide whether Vintage
is or is not an employer under the Act. For even if Vintage is an
employer, the hospital is also an employer of the nurses and a more
relevant employer at that. The nurses provide services to the
hospitals; they do not provide services to Vintage. Even if
Vintage mails the nurses’ paycheck, the nurses are paid, in the
end, by the hospital and not Vintage. The hospitals are the true
employers of the nurses, since at root level the hospitals “hire,
pay, fire, supervise, or otherwise control the work” of the nurses,
even if an employer-employee contract existed only between Vintage
and the nurses. As such, the INS interpreted “employer” in §
214.2(h)(4)(iii)(A) to refer to the true employer — namely the
hospitals — even though Vintage was the only “employer” petitioning
for visas. Under this interpretation, the INS required Vintage to
provide information regarding the hospitals’ requirements for the
nursing positions.
To interpret the regulations any other way would lead to an
absurd result. If only Vintage’s requirements could be considered,
then any alien with a bachelor’s degree could be brought into the
United States to perform a non-specialty occupation, so long as
that person’s employment was arranged through an employment agency
which required all clients to have bachelor’s degrees. Thus,
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aliens could obtain six year visas for any occupation, no matter
how unskilled, through the subterfuge of an employment agency. This
result is completely opposite the plain purpose of the statute and
regulations, which is to limit H1-B visas to positions which
require specialized experience and education to perform.
For these reasons, it was not an abuse of discretion to
interpret the statute and regulations so as to require Vintage to
adduce evidence that the entities actually employing the nurses’
services required the nurses to have degrees, which Vintage could
not do.
AFFIRMED.
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