VHV JEWELERS, LLC, Plaintiff-Appellant, versus CHAD F. WOLF, Acting Director of the U.S. Department of Homeland Security, KATHY A. BARAN, Director, California Service Center, U.S. Citizenship and Immigration Services, KENNETH CUCCINELLI, Acting Director, U.S. Citizenship and Immigration Services, Defendants-Appellees.
No. 20-14788
United States Court of Appeals For the Eleventh Circuit
November 1, 2021
[PUBLISH]
Appeal from the United States District Court for the Northern District of Georgia
D.C. Docket No. 1:19-cv-04479-TWT
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and WATKINS,* District Judge.
This appeal requires us to decide whether the United States Citizenship and Immigration Services acted in an arbitrary and capricious manner when it denied VHV Jewelers‘s petition to extend the L-1
I. BACKGROUND
The Immigration and Nationality Act,
Petitions for L-1 nonimmigrant status are filed with the United States Citizenship and Immigration Services.
New-office petitions require evidence that the transferee was employed abroad “for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity,”
The Act and its implementing regulations contain detailed definitions outlining the requirements for employment positions to qualify as managerial or executive. The definitions for “managerial capacity” and “executive capacity” each contain four elements stated in the conjunctive. So, the petitioner must prove that an intracompany transferee meets all four elements of each definition to qualify as “managerial” and “executive.” See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 12, at 116 (2012) (“With [a] conjunctive list, all [items] are required . . . .“). Additionally, a petitioner must prove that the transferee “primarily” engages in those high-level responsibilities that qualify as managerial and executive, a modifier added to the regulatory definitions in 1988, compare
The Act defines “managerial capacity” as the exercise of a level of control and discretion over the organization, either by supervising other employees or by managing a function of the organization:
[A]n assignment within an organization in which the employee primarily—(i) manages the organization, or a department, subdivision, function, or component of the organization; (ii) 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; (iii) 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 (iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
The Act defines “executive capacity” as the exercise of an even higher level of control and discretion, without much oversight from other members of the organization:
[A]n assignment within an organization in which the employee primarily—(i) directs the management of the organization or a major component or function of the organization; (ii) establishes the goals and policies of the organization, component, or function; (iii) exercises wide latitude in discretionary decision-making; and (iv) receives only general supervision or direction from higher level executives, the board of directors, of stockholders of the organization.
The Act provides an additional instruction to the Agency for evaluating the staffing levels of a petitioning organization: “If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the [Agency] shall take into account the reasonable needs of the organization . . . in light of the overall purpose and stage of development of the organization . . . .”
VHV Jewelers, LLC, a wholesale jewelry importer and the domestic counterpart of Khushi Jewels in India, has been headquartered in Atlanta, Georgia, since September
The day before the first grant expired, VHV Jewelers filed a petition to extend Vaidya‘s L-1 classification for another two years. VHV Jewelers submitted several documents in support of its petition. Those documents included a letter of support authored by Vaidya, a letter of support from Khushi Jewels, and organizational charts, payroll information, invoices, emails, and other documents for both the foreign and domestic organizations.
Before making its final decision, the Agency requested additional information from VHV Jewelers. It explained why the evidence submitted with the extension petition was insufficient, asked for more information on the nature of Vaidya‘s foreign and domestic duties and the organization‘s staffing, and gave examples of the kinds of evidence that might satisfy the Agency. VHV Jewelers sent the Agency additional evidence in response to the request, including a new letter of support authored by Vaidya, a new letter from Khushi Jewels, a new organizational chart for VHV Jewelers, additional payroll information, and various business documents related to the domestic operation. VHV Jewelers also clarified that it was asking Vaidya to be classified as an executive, not a manager.
After reviewing all the evidence provided by VHV Jewelers, the Agency denied the petition on two independent grounds. First, the Agency concluded that the record was insufficient to prove that Vaidya was employed in an executive capacity in his foreign position. Second, the Agency found that the record was likewise insufficient regarding his domestic position.
The Agency provided several reasons why the evidence was insufficient for both positions. The Agency interpreted the requirement that an executive “direct the management” as requiring that an executive exercise control over a subordinate level of managerial staff, and concluded that, based on the record evidence, Vaidya could not satisfy this requirement for either his foreign or domestic positions because Vaidya‘s subordinates did not hold positions in a managerial capacity. The Agency also found that, for both positions, Vaidya‘s own duties did “not make sense given the overall nature and organizational complexity of the foreign organization,” that Vaidya appeared to perform many non-qualifying duties such that he did not “primarily” perform executive duties, and that the descriptions of his duties were “overly broad and generic and did not provide sufficient insight into the actual nature of [Vaidya‘s] role within the organization.” Regarding the foreign position in particular, the Agency found that there were many inconsistencies between the description of Vaidya‘s responsibilities provided with the extension petition and the description provided after the Agency requested more evidence.
VHV Jewelers filed a complaint in the district court that the Agency‘s denial was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the Administrative Procedure Act,
II. STANDARD OF REVIEW
This Court reviews a summary judgment de novo, “view[ing] all facts and reasonable inferences in the light most farvorable to the nonmoving party.” Shuford v. Fid. Nat‘l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007). And the Admin-istrative Procedure Act directs us to “set aside [an] agency action” only when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
III. DISCUSSION
We divide our discussion in two parts. First, we explain that the Agency correctly interpreted the statutory definition of “executive capacity.” Second, we explain why the Agency‘s decision was not arbitrary and capricious.
A. The Agency Correctly Interpreted the Statutory Definition of “Executive Capacity.”
VHV Jewelers disagrees with the Agency‘s interpretation of “direct the management” in the executive capacity definition. VHV Jewelers argues that to “direct the management” does not require that there be a subordinate level of managerial employees and that the Agency‘s demand for evidence that Vaidya directed managerial employees was arbitrary and capricious. It points to the definition of “managerial capacity,” which requires that a manager “supervise[] and control[] the work of other supervisory, professional, or managerial employees, or manage[] an essential function within the organization, or a department or subdivision of the organization.”
VHV Jewelers would have us erase the distinction in the Act between an executive, who “directs the management of the organization,”
The word “direct” in the adjacent staffing-levels provision of the Act confirms our interpretation. See SCALIA & GARNER, READING LAW § 25, at 170 (explaining that a “word or phrase is presumed to bear the same meaning throughout a text“). The staffing-levels provision provides that “[a]n individual shall not be considered to be acting in a managerial or executive capacity . . . merely on the basis of the number
At least one other provision of the Act also supports our interpretation. Although the Act requires that an executive “receive[] only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization,”
This interpretation of “direct the management” does not foreclose the possibility that employees of small organizations would be eligible for L-1 visa classification. “[A]n organization‘s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity . . . .” Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070 (9th Cir. 2008). But “size is nevertheless a relevant factor in assessing whether an organization‘s operations are substantial enough to support a manager” or an executive, and the burden remains on the petitioning organization to prove that the transferee‘s duties are primarily managerial or executive. Id. at 1070–71 (alterations adopted) (internal quotation marks omitted). That such a showing might be more challenging for a smaller organization does not change the meaning of the Act‘s requirements.
B. The Agency‘s Decision Was Not Arbitrary and Capricious.
VHV Jewelers does not identify any record evidence that the Agency failed to consider or misconstrued in an arbitrary and capricious manner. For example, VHV Jewelers asserts that the Agency “blatantly ignor[ed]” certain evidence of Vaidya‘s duties, but it points to no record evidence that was not considered by the Agency in its decision. In fact, the Agency decision explicitly addressed both of the job descriptions and both of the organizational charts provided by VHV Jewelers—which are the only pieces of evidence cited in VHV Jewelers‘s briefs. VHV Jewelers also contends that Vaidya‘s foreign and domestic job duties “correspond with each element” of the “executive capacity” definition, but it points to no evidence that counters the Agency‘s determination that many of Vaidya‘s duties were “non-qualifying duties” related to sales, training, marketing, pricing, and supervising “non-qualifying personnel.” VHV Jewelers‘s arguments about the weight the Agency should have afforded certain pieces of evidence are similarly inapposite, as it is not the role of this Court to “substitute its judgment” for that of the administrative agency. Sierra Club, 526 F.3d at 1360 (internal quotation marks omitted); see also Republic of Transkei v. Immigr. & Naturalization Serv., 923 F.2d 175, 177 (D.C. Cir. 1991) (holding that the Agency‘s decision was not arbitrary and capricious when it found that “the statute and regulations required more precise evidence” about the transferee‘s role in the organization than was provided by the petitioning organization).
IV. CONCLUSION
We AFFIRM the judgment in favor of the government.