IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12

UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

__________

No. 12-5168___________

INTERNATIONAL INTERNSHIP PROGRAM

Plaintiff-Appellant

v.

JANET NAPOLITANO. et al.

Defendants-Appellees

_________________________________________________

On Appeal from the United States District CourtFor The District of Columbia

_________________________________________________

APPELLANT’S BRIEF (CORRECTED)

Frederic W. Schwartz, Jr. 1055 Thomas Jefferson St., NWSuite M-100Washington, D.C. 20007(202) 463-0880 197137

USCA Case #12-5168 Document #1397073 Filed: 09/28/2012 Page 1 of 57

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Counsel for plaintiff-appellant makes the following certification pursuant to

D.C. Circuit Rule 28(a)

A. Parties and Amici

The following parties appeared before the District Court; there were no

amici or intervenors:

Plaintiff: INTERNATIONAL INTERNSHIP PROGRAMS

Defendants: JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT OFHOMELAND SECURITY; ALEJANDRO MAYORKAS, DIRECTOR, U.S.CITIZENSHIP AND IMMIGRATION SERVICES; PERRY RHEW, CHIEF,U.S.C.I.S. ADMINISTRATIVE APPEALS OFFICE, DANIEL M. RENAUD,DIRECTOR, VERMONT SERVICE CENTER; U.S.C.I.S.; UNITED STATESATTORNEY GENERAL ERIC HOLDER, UNITED STATES OF AMERICA

B. Rulings Under Review

The ruling under review, granting summary judgment for defendants,

denying summary judgment for plaintiffs, and dismissing plaintiff’s Complaint

was issued by the Hon. Richard J. Leon on March 29, 2012 and is reproduced in

the Appendix at 45.

C. Related Cases

This case was previously before the Court on the appellant’s motion to stay

proceedings in the District Court pending this appeal and on the appellant’s

interlocutory appeal of the Trial Court’s denial of its motion for injunctive relief.

The motion was denied and the appeal was found to be moot. App. 43 This case

has not been before any other court previously except the District Court which

issued the Order under appeal. Counsel know of no other related case.


TABLE OF CONTENTS

GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF ISSUES TO BE RAISED ON APPEAL. . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS AND OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Relevant USCIS Decisions on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. The Limitations on Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

III. The Statute and Regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

IV. The IIP Cultural Visitors Were To Be Employed under the same wage and working conditions as domestic workers. . . . . . . . . . . . . . 25

A. The IIP Cultural Visitors Were Not Teacher Assistants. . . . . . . . 25

B. The IIP Cultural Visitors Were comparable to unpaid interns or volunteers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

C. The Fees The Cultural Visitors Pay To The IIP Affiliates in Asia for Their Selection, Testing, Training, Monitoring and Other Services Need Not Be Reimbursed by the IIP. . . . 33

V. The new and novel interpretations of the Q-1 statute and regulationviolate the requirements of the Regulatory Flexibility Act... . . . . . . 35

VI. The IIP Claims are not moot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

VII. Even if Some of the Requested Relief was Mooted Out, Other Relief was Not.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

i


VIII. The decision of the USCIS to limit IIP programs to 9 months instead of the statutory and regulatory limitations of 15 months was improper.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

IX. The IIP may furnish cultural visitors to schools solely as part of theschool's established curriculum to a limited number of studentsenrolled in the classes and for programs which charge a fee.. . . . . . 47

X. The new and novel interpretations of the Q-1 statute and regulationviolate the notice and comment requirements of the Administrative Procedures Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

ii


TABLE OF AUTHORITIES

CASES

Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979). . . . . . . . 43

Beethoven Com LCC v. Librarian of Congress, 194 F. 3d 939 (D.C. Cir. 2005). 39

Better Government Ass'n v. Department of State, 780 F.2d 86 (D.C. Cir. 1986).. 43

*Butte County v. Hogen, 613 F.3d 190 (D.C. Cir. 2010):. . . . . . . . . . . . . . . . . . . 33

Case of Proclamation (1611) 12 Co. Rep. 74 (UK). . . . . . . . . . . . . . . . . . . . . . . . 15

Celotex v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

*Chevron U.S.A. Inc. v. National Res. Def Council, Inc., 467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 22, 24

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). . . . . . . . . . . . 19

*Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 39

*Friedman v. Sebelius, 686 F. 3d 813 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . 3, 39

Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Honeywell International, Inc. v. Nuclear Regulatory Commission, 628 F.3d 568 (D.C. Cir 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Ivanov v. Sunset Pools Management, Inc., 567 F. Supp. 2d 189, (D.D.C. 2008). . 3

John Doe Inc. v. DEA, 484 F.3d 561(D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . 34

Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007). . . . . . . . . . . . . . . . . . . 22

Orengo Caraballo v. Reich, 11F. 3d 186, 195 (D.C. Cir. 1993). . . . . . . . . . . . . . 43

Republic of Transkei v. INS, 923 F.2d 175 (D.C.Cir.1991). . . . . . . . . . . . . . . . . . 37

Richards v. Immigration & Naturalization Service, 554 F.2d 1173 (D.C.Cir.1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Richardson v. Perales, 402 U.S. 389 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii


Secretary of State v. Pankina, [2010] EWCA Civ 719; [2010] All ER (D) 196 (Jun)(UK). . . . . . . . . . . . . . . . . . 21

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974). . . . . . . . . . . . . . 15

Thompson v. Clark, 741 F.2d 401 (D.C. Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . 42

*U.S. Telecom Assn. v. FCC, 400 F.3d 29 (D.C. Cir. 2005).. . . . . . . . . . . . . . 36, 37

United States v. Philip Morris USA Inc., 686 F.3d 832 (D.C. Cir 2012). . . . . . . . 36

Wisconsin Electric Power Co. v Department of Energy, 778 F.2d 1(D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

* Authorities upon which we chiefly rely are marked with asterisks.

STATUTES

5 U.S.C. § 551. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 47

5 U.S.C. § 601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

5 U.S.C. § 611. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

5 U.S.C. §701.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 U.S.C. § 706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

8 U.S.C. § 1101(a)(15)(Q).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 25, 30, 31

8 U.S.C. § 1252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 36

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1361. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iv


REGULATIONS

8 C.F.R. §103.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

8 C.F.R. § 214.1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

8 C.F.R. § 214.2(q). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10, 22, 25, 38, 45

22 C.F.R. §62.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

OTHER AUTHORITIES

Department of Labor's Occupational Outlook Handbook (OOH), 2010-11 Edition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 23

Department of Labor Dictionary of Occupational Titles. . . . . . . . . . . . . . . . . . . . 23

Fed.R.Civ.P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

H.R. REP. 101-723(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). . . . . . . . . . . . . . . . . . . . 20, 21

USCIS Adjudicators Manual § 14.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

v


GLOSSARY

AAO–Administrative Appeals Office, the highest level reviewing office for theUSCIS

APA–Administrative Procedures Act

DOL–Department of Labor

INA–Immigration and Naturalization Act

INS–Immigration and Naturalization Service, the predecessor to the USCIS

RFA–Regulatory Flexibility Act

RFE–USCIS “Request for Further Information”

USCIS--United States Citizenship and Immigration Services

VSC–Vermont Service Center, the first level reviewing office for the Q-1 visa

vi


JURISDICTIONAL STATEMENT

This appeal challenges the refusal of the District Court to grant relief to

appellant International Internship Program. The suit was brought under the

Immigration and Nationality Act (INA), as amended, 8 U.S.C. §§ 1101, et seq.;

statutes relating to agency actions (APA), 5 U.S.C. §§ 551, et seq. and 5 U.S.C.

701, et seq.; 28 U.S.C § 1361 relating to mandatory injunctive relief against an

officer of the United States; the declaratory judgments provisions of 28 U.S.C

2201 et seq.; and 28 U.S.C. § 2412 relating to the Equal Access to Justice Act. .

Jurisdiction of the District Court was based upon 28 U.S.C. § 1331 (Federal

question) and 28 U.S.C. § 1361 (Federal mandamus). Jurisdiction of this Court is

based on 28 U.S.C. § 1291 (appeal from the District Court).

STATEMENT OF ISSUES TO BE RAISED ON APPEAL

1. Did the USCIS correctly and appropriately reinterpret the Q-1 visa

statute and its own Q-1 visa regulations?

2. Did the Trial Court correctly and appropriately review the USCIS’

reinterpretation of the Q-1 visa statute and its own Q-1 visa regulations?

3. Does the Regulatory Flexibility Act apply to the USCIS’ reinterpretation

of its Q-1 visa regulations?

1


STATEMENT OF FACTS AND OF THE CASE 1

I. Procedural History

The appellant/plaintiff, International Internship Program (IIP), is an I.R.C.

§ 501(c)(3) non-profit which has sponsored, for the past 30 years, a cultural

exchange program in which visitors from Japan, Korea, Thailand, and China come

to the United States and are placed in host schools where they share with students

and the local community the history, culture, and traditions of their homeland.

For most of this period these cultural visitors have obtained “Q-1” visas under 8

U.S.C. § 1101(a)(15)(Q), which established the cultural visitors program, as well

as the USCIS/INS’ implementing regulations at 8 C.F.R. § 214.2(q).

Beginning in October 2009, despite its long history of approvals, the

USCIS, issued a series of decisions which essentially barred the IIP from

continuing its activities as it had in the past. The IIP filed suit for injunctive and

other relief on July 21, 2010. App. 2 On November 24, 2010, the IIP filed a

Supplemental Complaint to incorporate a decision on November 16, 2010 in

which the USCIS’ Vermont Service Center (VSC) denied the IIP’s visa petition

for eleven of its cultural exchange participants. App. 7

Abstracted from the Supplemental Complaint (App. 7) if not denied in the1/

Answer (App. 42-A), the District Court decisions (App. 45, 71), the prior decisionof this Court (App. 43), the docket (App. 1), or as indicated.

2


On December 3, 2010, the IIP filed a Motion for Temporary Restraining

Order and/or Preliminary Injunctive Relief to require the VSC to approve the visa

petition which it had denied in November. A hearing on the request for

preliminary injunctive relief was held on December 21, 2010. The District Court

took the matter under advisement, but stated that he anticipated issuing a ruling by

the end of January 2011. App. 181 On July 20, 2011, almost seven months after

the projected date for a decision, the District Court denied the IIP’s request for

preliminary injunctive relief. App. 71

The IIP brought an interlocutory appeal of the denial of injunctive relief and

moved in both the District Court and later this Court for a stay of the District

Court action until the appeal in this Court could be resolved. Both motions were

denied. No. 11-5197 On February 21, 2012, this Court dismissed the

interlocutory appeal as moot noting that the injunctive relief requested had related

to a period which had expired. Thus, this Court concluded that no effective relief

could be offered. The Court also noted specifically that it expressed no opinion on

the merits of the IIP’s claims.

The IIP petitioned for a rehearing On March 27, 2012. It pointed out that a

visa is very much like a driver’s license as it can be easily renewed and is subject

to recrafting in other ways. Equally important, this Court had not addressed the

exception to mootness where “the claim for relief...[is] capable of repetition but

evading review.” See, e.g., Honeywell International, Inc. v. Nuclear Regulatory

Commission, 628 F.3d 568, 576 (D.C. Cir 2010)(claim not moot even though

3


license period has expired in light of probable future license.) The IIP expressed

concern that by not distinguishing decisions like Honeywell, the District Court

might, on the authority of this Court’s dismissal, determine that all of the IIP’s

claims were moot since effective injunctive relief could no longer be provided and

no exceptions to mootness applied. On March 28, 2012, the next day, the Trial

Court dismiss a significant part of the IIP’s suit as moot as discussed below. This

Court denied the petition without opinion on April 12, 2012.

II. Relevant USCIS Decisions on Appeal

The initial IIP Q-1 petition was submitted to the USCIS Vermont Service

Center (VSC). The USCIS Service Centers make the initial decision to approve,

deny, or certify the petition (with or without a preliminary decision) to the USCIS

Administrative Appeals Office (AAO), the USCIS appellate body. 8 C.F.R.

103.(4)(a) If the Service Center denies the petition, the petitioner may appeal to

the AAO. 8 C.F.R. § 103.3 Alternatively, the petitioner may appeal to the

appropriate U.S. District Court. 8 U.S.C. § 1252(a)(2)(B)(ii)

On August 4, 2009, the IIP filed with the VSC an I-129 petition for eighteen

Q-1 cultural exchange visitors and requested premium processing, a 10-business-

day service which is available with the payment of an additional $1,000.00 fee.

App. CAR 2

On August 13, 2009, the VSC sent to the IIP a Request for Further

Information (RFE). App. CAR 31 The IIP responded to each point raised in the

RFE. App. CAR 33

4


On September 8, 2009, the VSC issued a decision which it certified to the

AAO, a procedure followed in matters of significant complexity. 8 C.F.R.

103.(4)(a). App. 131 The decision of the VSC stated:

After a complete review of the record, it is concluded the petitioner hasestablished its program qualifies for designation as an international culturalexchange program pursuant to the provisions of found at 8 C.F.R. § 214.2(q) (3) . The record of proceeding establishes the cultural exchange visitorswill be engaged in an internship program of which the essential element isthe sharing of the culture of the alien's country of nationality. USCIS hasfurther determined that the work component of the petitioner's programwould not be operated independently from the cultural componentobjectives of the IIP program.

The evidence establishes the petitioner has described an internationalcultural exchange program satisfying all the required components prescribedin 8 CFR § 214.2(q) (3) (iii); specifically, the cultural component and thework component. The record establishes the beneficiaries are eligible forclassification within the meaning of Section 101(a) (15) (Q) of the Act.

* * * * *

The Service Center Director recommends this instant petition be approved. App. 136

On October 6, 2009, the AAO approved the VSC certified decision. App.

127 The approval stated, in pertinent part:

The petitioner operates a program whereby it recruits cultural exchangevisitors from Japan, China and Korea for internships at United Statesprimary and secondary schools that seek to supplement their curricularofferings with Asian cultural and language classes. The details of theprogram are arranged by the host school and the cultural exchange visitorbased on the needs of the school and the cultural interests of the visitor, thusthe exact structure of the program varies from host school to host school.However, the petitioner has submitted sufficient evidence related to pastprogram participants to establish that the cultural activities are carried out ina structured manner according to the petitioner's guidelines. Theparticipating interns present instructional activities designed to enrich orsupplement the schools' existing curricula with age-appropriate cultural andlanguage lessons and courses. The substantial evidence in the record further

5


establishes that program participants are utilized by the schools solely orprimarily to assist teachers with cultural and language lessons, or to providesupplemental enrichment lessons, and not to perform general instructionalor other non-cultural duties unrelated to the program's cultural component.The petitioner has demonstrated that the participating interns document theiractivities and accomplishments in a monthly report submitted to thepetitioner's U.S. and overseas offices to ensure program quality andcompliance.

Upon review of the record of proceeding in its entirety, the AAO concurswith the director's determination that the petitioner operates an internationalcultural exchange program satisfying all the required components prescribedat 8 C.F.R. § 214.2(q)(3)(iii). According, the director's decision will beaffirmed and the petition will be approved. App. 129

Nonetheless, the AAO concluded:

Also, given that the petitioner's program takes place in elementary andsecondary schools which traditionally have a two to three-month breakbetween academic years, it has not been established that the beneficiarieswould be performing services consistent with the program during thesummer months. Therefore, the director is instructed to carefully review theactual intended dates of program participation rather than granting therequested 15-month period of Q-1 classification. App. 130

On December 4, 2009 The VSC approved the IIP petition after the IIP

agreed for that group of cultural visitors to modify the duration to conform to the

school year and to withdraw the request for participants and institutions who could

not or would not accept the limitation of a 5-month program. App. CAR 1375 2

On January 29, 2010, the IIP filed with the VSC a petition for four Q-1

cultural exchange visitors and again requested premium processing. App. CAR

1362

For the convenience of the Court, those portions of the CAR reproduced in the2/

Appendix are designated “App. CAR ___.” Those portions not reproduced aredesignated “CAR____.”

6


On February 4, 2010, the VSC sent to the IIP an RFE which was identical with the

RFE dated August 13, 2009, but with one additional evidentiary request. (App.

CAR PP 1377 That additional request was:

• Submit evidence to clearly establish the requested validity period forthis petition. The record needs to establish what the beneficiaries willbe doing during the summer break period if the validity extendsduring those months and how these activities would relate to yourcultural programs with the host schools.

App. CAR 1380

The IIP responded to each point raised in the RFE. App. CAR 1381

On February 16, 2010, the VSC, contrary to its prior decision, denied the

IIP) petition on a number of grounds and certified its decision to the AAO. App.

121

The IIP filed a brief with the AAO opposing the VSC denial of its petition.

On April 22, 2010, the AAO issued its decision withdrawing (reversing) most of

the VSC decision, but sustaining the denial of the petition. App. 107 The AAO

decision held, in pertinent part:

The petitioner has established that the beneficiaries' proposed activitiessatisfy the accessibility to the public requirement set forth at 8 C.F.R. §214.2(q)(3)(iii)(A). The regulation uses examples to set the limits of what isacceptable and unacceptable with respect to public access. As an example ofsufficient public access, the regulation specifically mentions that thecultural exchange program may take place in a school. As examples ofinsufficient public access, the regulation cites "[a]ctivities that take place ina private home or an isolated business setting." Id. The petitioner's programinvolves a level of public access that surpasses these negative examples.

App. 111

7


The AAO went on to hold, however:

The AAO emphasizes, however, that the mere fact that the program takesplace in a school is insufficient to establish eligibility under thisrequirement. For example, a beneficiary coming to the United States solelyto teach classes that are part of a school's established curriculum, such asIntermediate and Advanced Japanese, to a limited number of studentsenrolled in the classes, would not be engaged in cultural sharing activitieswhich could be considered sufficiently accessible to the public or a segmentof the public.

App. 111

Concerning the work component of the IIP program, the AAO found:

The director determined that the petitioner "has not established that thework component would not be operated independently from the culturalcomponent." The director's certified decision does not contain any furtherdiscussion regarding the work component of the petitioner's program orwhy the evidence fails to establish eligibility. The AAO will withdraw thedirector's determination. The petitioner has established that its programparticipants are utilized by the host schools solely or primarily to assistteachers with cultural and language lessons, or to provide supplementalenrichment lessons, and not to perform general instructional oradministrative duties unrelated to the program's cultural component. Whilethe petitioner acknowledges that participants will occasionally be asked toassist teachers with non-cultural activities, the AAO finds sufficientevidence to establish that such non-cultural activities are in fact occasionaland not the basis for the program.

App. 105

The AAO, however, did sustain the VSC in two ways. First, as to the

duration of the program, the AAO held that because the IIP formal program is

school based, it is appropriate to limit the period of approval to the academic

school year. App. 105

The AAO also concluded that the IIP had not established that it would offer

the interns wages and working conditions comparable to those accorded local

domestic workers similarly employed, as required by the INA and 8 C.F.R. §

8


214.2(q)(4)(i)(D). The AAO acknowledged that the IIP had certified that the

interns would receive a stipend of $100.00 per month, as well as room, meals,

incidentals and local transportation, but questioned the truth of the statement that

the interns received an additional $200.00 per month from the IIP for these

purposes. App. 116-117 Rejecting the IIP’s argument that there are no "cultural

exchange visitors" in the domestic work force and that the nearest comparisons to

the interns would be either Americorp or similar workers who receive a stipend

which allows them to obtain room and board at a minimal level or interns who,

even though performing highly complex work, are almost never paid, the AAO

held that the Americorp workers receive more than the $8,500.00 per year which

the IIP asserted was the value of its payment.

In addition, noting that the participants paid the recruiting and training

agency in their home country a "registration fee," "program fees," and

"accommodation fees" in order to participate in the program, the AAO determined

that the program participants may well have a greater financial obligation to the

IIP than did the IIP to the interns which negated these payments by the IIP. App.

App. 118

The AAO held as well that unpaid internships such as those which form the

basis of the IIP program are contrary to law, citing U.S. Department of Labor,

Wage and Hour Division, Opinion Letter FLSA2002-8,

http://www.dol.gov/whd/opinion/FLSA/2002/2002 09 05 8_FLSA.pdf (Sept. 5,

2002) and an Inc. Magazine article. (Rec. 1206, fn. 4)

9


http://www.dol.gov/whd/opinion/FLSA/2002/2002

Relying on 8 C.F.R. § 214.2(q)(4)(i)(D), the AAO held that it was

reasonable to conclude that the IIP was required to pay the interns “actual wages

commensurate with their duties.” App. 119 Finding that this did not occur for the

reasons discussed above, the AAO sustained the VSC’s denial of the petition and

visa request. App. 120

The IIP moved to reopen and reconsider the AAO decision. App. CAR 106

On June 21, 2010, the AAO held that the evidence submitted on reconsideration

was sufficient to demonstrate that the interns would be carrying out their culture-

sharing activities during the summer academic recess, but affirmed its

determination that the interns must be paid monetary wages, adding more detail to

its rationale and identifying the local domestic workers similarly employed which

it had in mind. The AAO noted “that the petitioner's program participants are

assigned to elementary and secondary host schools to assist teachers with cultural

and language lessons, or to provide supplemental enrichment lessons, in the

classroom, and may occasionally be asked to perform general teaching assistant

duties,” App. 91

The AAO then considered the duties that the interns perform, finding them

“similar” to those performed by a teacher assistant. App. 99 In this regard, the

AAO relied upon the Department of Labor's Occupational Outlook Handbook

(OOH), 2010-11 Edition, as discussed fully below.

10


In addition, the AAO explained:

Furthermore, while the AAO acknowledges that some U.S. schools seekvolunteers to assist in classrooms without compensation, the level of timecommitment, lesson preparation, teacher involvement and evaluation criteriapresent in the petitioner's program make the position directly comparable toa paid teaching assistant rather than to those of a volunteer who offersservices as a tutor or classroom helper on an informal basis.

The Q-1 nonimmigrant classification is an employment-based visa thatrequires the petitioner to pay beneficiary's wages comparable to thosereceived by domestic workers. Thus, it is reasonable to compare thebeneficiaries' compensation to those who perform similar duties in exchangefor wages as opposed to those who perform similar duties as volunteers.App. 99-100

The AAO explained its legal rationale this way:

While the Q-1 classification does not have a prevailing wage requirement,the purpose of the language at section 101(a)(15(Q)(i) of the Act, requiringthe Q-1 beneficiary "be employed under the same wages and workingconditions as domestic workers," is similar to the H-1B employer's wageand working condition attestation requirement at section 212(n)(1) of theAct. The petitioner is not relieved from the statutory requirement by simplyasserting that the position is for volunteers or that it has no equivalent in thedomestic workforce.

The statute governing the Q nonimmigrant classification states withoutambiguity that the beneficiary must "be employed under the same wagesand working conditions as domestic workers." Section 101(a)(15)(Q)(i) ofthe Act. As stated in the supplementary information to the currentregulations at 8 C.F.R. § 214.2(q), published at 57 Fed. Reg. 55056, 55059(November 24, 1992): The Service selected the term "comparable" in orderto implement Congress's wish that cultural exchange visitors receive wagesand working conditions that are the "same" as those of similarly situateddomestic workers. Section 214.2(q)(4)(iii)(B) requires the petitioner tocertify compliance with this requirement. * * * The key issue is whether thecultural exchange visitor will work under conditions and for wages that arecomparable to those accorded to domestic workers similarly employed inthe same geographical area.

11


Since there are paid teacher assistants in the domestic workforce who aresimilarly employed, the petitioner is required to establish that it will offerthe beneficiaries wages and working conditions comparable to thoseaccorded to such domestic workers. App. 100

In this regard, the AAO considered the value of the room, board,

transportation and other benefits provided to the intern irrelevant, stating:

Furthermore, the relevant comparison is whether the beneficiaries arereceiving wages that are comparable to domestic workers similarlyemployed, not whether the beneficiaries are receiving room and board orother non- wage compensation comparable to a person living at or slightlybelow the poverty line. The regulations at 8 C.F.R. § 214.2(o)(4)(i)(D) and§ 214.2(11)(ii) refer specifically to "wages" and not to "wages and/or othercompensation." App. 103-104

The AAO concluded:

[O]ur findings should not be construed as a conclusion that the participatingschools are merely seeking, or that the petitioner is seeking to provide, freeor inexpensive labor to fill positions within American schools. The AAOrecognizes the value of the petitioner's cultural exchange program and doesnot doubt the intentions of the parties involved or their commitment to theobjectives of the program. However, we affirm our finding that thepetitioner's decision to structure the program as an "unpaid internship" withthe majority of the financial responsibility falling on the participants'themselves, is contrary to the statutory and regulatory requirements thatmust be adhered to by qualified employers. App. 106

On October 8, 2010, the IIP filed with the (VSC) a petition for eleven Q-1

cultural exchange visitors and requested premium processing. App. CAR 2261 On

October 20, 2010, the VSC faxed to the IIP a Request for Further Evidence. App.

CAR 2497 On November 1, 2010, the IIP responded. App. CAR 2502

12


On November 16, 2010, the VSC denied the IIP Petition. App. 87 In its

denial the VSC found that the non-technical job description which the IIP

provided for the beneficiaries states that the beneficiaries will visit classrooms and

community centers in order to share their culture with students and com0munities,

and serve as a foreign resource person for students, staff; parents and the general

public. App. 88-89

In its denial the VSC acknowledged that the beneficiaries are not to take

part in any activity which might normally be carried out by a teacher assistant or to

assist the teacher in any task which might be carried out by a teacher assistant.

App. 88 In its denial the VSC acknowledged that the proffered purpose of the

beneficiaries participation in the IIP program was to further their vocational and

professional development by experiencing life in the United States, as well as

improving their English speaking skills. App. 88

In its denial the VSC acknowledged that the beneficiaries will not be

receiving any compensation from the schools while here and they will not be paid

a wage from the IIP. App. 88 The beneficiaries will only receive $100 per month

as an allowance and $200 per month will be given by the IIP through the intern to

the host family for accommodations and meals. Id.

In its denial the VSC acknowledged that the agreements between the

schools and the beneficiaries state that the beneficiaries will be unpaid interns.

App. 88-89 In its denial the VSC acknowledged receiving a copy of the activities

carried out by IIP interns in the United States during the Summer of 2010. App.89

13


In its denial the VSC acknowledged that the IIP concludes that the

Department of Labor would designated its interns as the equivalent of the

domestic worker “volunteer” and that volunteers are exempt under the Department

of Labor administered Fair Labor Standard Act (FLSA) from being paid any

[wages or salary]. App. 89 In its denial the VSC also acknowledged receiving and

reviewing the Department of Labor Wage and Hour Division Fact Sheet #71,

Internship Programs under the Fair Labor Standards Act (April 2010). App. 89,

App. CAR 2526, et seq.

In its denial the VSC agreed that the Department of Labor has an exception

[for wages] for individuals who volunteer their time, freely and without

anticipation of compensation to non-profit organizations. App. 89 In its denial the

VSC acknowledged receiving and reviewing as part of the IIP response to the

Request for Evidence information concerning other internship/volunteer programs,

but found that information was not relevant to the Q-1 program. App. 89

In its denial the VSC concluded that:

participants are responsible for paying the accommodations fee directly totheir home stay provider, that these fees are coming from the participant'sregistration payment that was taken during the registration in his/her homecountry and that other costs, such as airfare, insurance, personal expensesand return airfare are personally paid by the participants. Also, theparticipants are responsible for arranging for their own accommodationsduring the summer months or extended school breaks. App. 89

In its denial the VSC states that it derived these conclusions from the IIP

Program Fee Schedule. App. 89

14


The IIP Program Fee Schedule provides, inter alia, that the program fee

“includes orientation materials, placement monitoring, home stay accommodation

and three meals daily, transportation to and from school, a US$100 per month, and

airport pick up on arrival.” App. CAR 2477-2478

In its denial, the VSC states that it “is concluded that the regulations require

that you pay the beneficiaries actual wages commensurate with their duties.” App.

89

In its denial the VSC states, without further justification than stated above:

“Therefore, your petition is denied.” App. 89

SUMMARY OF ARGUMENT

The issues before this Court are not unique to either this Country or to

recent centuries. As Lord Justice Sedley wrote in Secretary of State v. Pankina,

[2010] EWCA Civ 719; [2010] All ER (D) 196 (Jun), citing Case of Proclamation

(1611) 12 Co. Rep. 74:

Although the issue which each of these appeals raises looks on its facemarginal almost to the point of triviality, it is an issue of constitutionalimportance and of real difficulty. The issue is whether the executive, inrules which are required, subject to parliamentary oversight, to set out howit proposes to exercise its statutory functions, can lawfully reserve to itselfthe power to add or to modify those rules. It raises questions about theconstitutional status of the immigration rules and about their relation todepartmental policy and human rights.

This appeal is little different.

15


The IIP, since the inception of the Q visa program decades ago, has filed

with the USCIS visa petitions for Asian cultural exchange visitors to come to this

country under the auspices of the IIP Q-1 program. Until 2009, these petitions

have all been approved. The USCIS has now re-imagined its Q-1 regulation and

altered its view of the regulation’s import. Consequently, the USCIS has

improperly denied in whole or in part the three most recent IIP Q-1 visa petitions.

Wages was the primary sticking point. The first step in both statutory and

regulatory analysis is to determine what the statute actually says. The statute here

is clear. It says the Q-1 beneficiary shall:

be employed under the same wages and working conditions as domestic workers similarly employed §101(a)(15)(Q)(1)

Not so says the USCIS, seconded by the Trial Court. In their view, the statute

really says that the cultural visitor must:

be employed and receive some wages

They take this view even though their interpretation eliminates the statutory

modifier that the wages must be the “same...as domestic workers similarly

employed” and is contrary to statutory policy as found in the legislative history.

For his part, the Trial Court claims his hands are tied under Chevron. While

acknowledging that he is applying second step Chevron deference, the Trial Court

concludes that if any part of a statute is left to the agency’s interpretation all of the

statute is subject to second step Chevron deference. The USCIS’ statutory

interpretation is contrary to the customary canons, and the Trial Court’s novel

view of when second step Chevron deference is necessary finds no authoritative

16


support. Both the USCIS and the Trial Court improperly conclude that the cultural

visitors are actually teacher assistants even though their position description

differs significantly from the position description established by the DOL for

teacher assistants.

The USCIS–with the approval of the Trial Court--also requires the IIP to act

in ways which are specifically contrary to the statute or which ignore the statute.

The statute requires that the IIP afford the cultural visitors the same working

conditions as domestic workers similarly employed. Consequently, the IIP permits

some cultural visitors to engage in complimentary summer activities since the

working conditions of non-administrative domestic school workers, be they

salaried or volunteer, provide these same extended breaks and summer holidays.

The USCIS has refused, however, to authorize visas which extend beyond the

school year even if the cultural visitor is to resume his or her school activities in

the Fall. Similarly, since the statute requires that the cultural visitor receive the

same wages and working conditions of domestic workers, the IIP-US affiliates in

Asia have been utilizing part of the fees the participant pay to fund their room,

board and incidental expenses. This is because comparable domestic workers do

not receive employer-provided room, board and incidental expenses. The USCIS

considers this improper, however, and requires that these sums be reimbursed to

the cultural visitor or be added to the appropriate salary. Justified payments to

foreign (and domestic) organizations to select, train and monitor interns and

volunteers are commonplace, but the USCIS forbids them even though the IIP-US

17


receives none of these funds. Finally, while its own regulations provide that the

activities of the cultural visitor can take place in schools, the USCIS now has

decided that schools which charge tuition are not schools, and that the cultural

visitors do not belong there. The etiology of this new tack cannot be found in

either the statute or the regulation as written.

In light of the enormous projected financial impact on the IIP from the

USCIS’ new requirements and restrictions, the IIP argues that a Regulatory

Flexibility Act analysis is required. While the USCIS’ previous understanding of

the statute and its own regulations imposed no economic hardship, thus justifying

the previous finding that there was none, that is clearly not the case now.

Consequently, the IIP concluded that the USCIS needed to carry out an RFA

analysis before imposing these added expenses. Congress could not have intended

to authorize an agency to subsequently alter the financial impact of a rule and yet

rely on its outdated finding that there was no financial impact. Even with ever-

smaller numbers of Q-1 visas issued, 1,589 in 2010, the impact on small entities

seems clear.

The Trial Court also failed to understand the mechanics of resolution of

agency appeals. First, it considered the action moot because the requested periods

of visa viability had passed. There are exception to mootness, however, when

the claim attacks an ongoing agency policy and when the claim for relief is

capable of repetition but evading review. Both exceptions apply. Further, even if

18


some of the USCIS claims are moot, others seeking, for example, a declaratory

judgment are not.

The Trial Court did not appear to appreciate the niceties of APA review and

the subtleties of substantial evidence. Substantial evidence is evidence which

would be sufficient to convince a reasonable bureaucrat–using the standard he or

she is charged with utilizing--that a proposition is true. The Court merely

determines whether that quantum of evidence exists without regard to contrary

evidence. In the case of the USCIS, the adjudicator was charged with utilizing the

preponderance of the evidence test, and the substantial evidence test must reflect

that standard. The Trial Court, however, determined that the USCIS adjudicator

could utilize in his or her review the substantial evidence test, was not required to

consider contrary evidence, and certainly was not required to demonstrate that the

evidence he or she relied upon rationally led to the conclusions reached.

ARGUMENT

I. Standard of Review

The general standard of review of agency action is well known to this Court.

Republic of Transkei v. INS, 923 F.2d 175, 176-177 (D.C.Cir.1991) It may vacate

the USCIS’ decision only if it is "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Consequently, this

Court will examine the administrative record to ensure that the agency's decision

"was based on a consideration of the relevant factors" and that the decision was

not "a clear error." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416,

19


91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); see Richards v. Immigration &

Naturalization Service, 554 F.2d 1173, 1177 (D.C.Cir.1977). Summary judgment,

as was the case here, is appropriate if the pleadings and the record, when viewed

in the light most favorable to the nonmoving party, demonstrate that "there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317,

323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) To the extent the District Court's

decision hinges on questions of law, however, this Court’s review is essentially de

novo.

There is a novel complication to the customary standard of review in this

appeal. The USCIS has bound itself to the preponderance of the evidence test

generally rejected in agency cases. In a precedent decision, the AAO reminded in

Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010):

Except where a different standard is specified by law, a petitioner orapplicant in administrative immigration proceedings must prove by apreponderance of evidence that he or she is eligible for the benefit sought. * * * The "preponderance of the evidence" standard requires that theevidence demonstrate that the applicant's claim is "probably true," where thedetermination of "truth" is made based on the factual circumstances of eachindividual case. Matter of E-—, 20 I&N Dec. 77, 79-80 (Comm'r 1989).

* * * * *

Even if the director has some doubt as to the truth, if the petitioner submitsrelevant, probative, and credible evidence that leads the director to believethat the claim is "more likely than not" or "probably" true, the applicant orpetitioner has satisfied the standard of proof. See INS v. Cardoza-Fonseca,480 U.S. 421, 431 (1987). * * *

20


Thus, as to USCIS decisions, this Court must find that there is substantial

evidence that the USCIS reached its decision utilizing a preponderance of the

evidence test. This is because the "substantial evidence" requirement mandates

that the Agency’s findings be supported by "such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion." Richardson v.

Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted).

This “relevant evidence” must therefore be preponderant in USCIS

determinations.

The Trial Court was singularly unimpressed with this analysis, considering

it inapposite since the decision of the service center under review in Chawathe

dealt with naturalization and not a Q visa. Chawathe, however, made clear at 375

that the preponderance of evidence standard applies throughout the agency unless

a different standard is specified by law. It is difficult to understand how the Trial

Court, having served as a Trial Attorney with the legacy Immigration and

Naturalization Service, does not understand the unity of that agency’s decision

making process.

Even utilizing the ordinary substantial evidence test, the Trial Court failed

to apply it properly. As the Trial Court correctly pointed out, under ordinary

circumstances any relevant and reasonable evidence in support of the agency’s

position is sufficient to carry the day despite the existence of contrary (and even

weightier) evidence to the contrary. This principle does not rescue the USCIS

determination that the IIP cultural visitors were teacher assistants when their job

21


titles and job descriptions did not match that of teacher assistants since the

determination was not reasonable and the evidence was not relevant. While low,

there is a level to which substantial evidence must rise. More telling, there was no

evidence in the record of the final USCIS determination to contradict the IIP’s

evidence that the cultural visitors were unpaid interns/volunteers prohibited from

carrying out teacher assistant duties. The USCIS cannot acknowledge the IIP’s

evidence and simply ignore it.

II. The Limitations on Review

The Trial Court, throughout his decision, limited his scope of review in light

of Chevron U.S.A. Inc. v. National Res. Def Council, Inc., 467 U.S. 837, 843

(1984). Under Chevron, judicial deference to agency interpretation is appropriate

on two grounds. First, Chevron deference is paid when the intent of Congress is

not clear. Chevron, supra at 842-843. As discussed below, however, the intent of

Congress could not have been clearer. Further, Chevron deference, even if it was

to be paid, is only be paid to the agency’s articulation and interpretation of its own

statutory mandate. In this regard, while it altered the statutory language slightly

(and to the better), USCIS’ regulatory language at 8 C.F.R. 214.2(q)(4)(i)(D)

successfully followed the statutory language and it is the new gloss–not the

regulation–which is at issue.

The first flaw perceived by the IIP, however, is the USCIS’ departure from

the plain meaning of its own regulation. As to this issue, the Court in John Doe

Inc. v. DEA, 484 F.3d 561, 570 (D.C. Cir. 2007) explained:

22


DEA's interpretation of its own scheduling regulations is controlling unless"plainly erroneous or inconsistent with the regulation." We review theDEA's rationale for denying Doe's permit under the APA's familiar arbitraryand capricious standard. In conducting our judicial review, we focus on theadministrative record that formed the basis for the agency's decision, unless"there was such a failure to explain administrative action as to frustrateeffective judicial review." (citation omitted).

Likewise, changes in policy and interpretation, while permitted, must be

explained to avoid being arbitrary and capricious. Friedman v. Sebelius, 686 F. 3d

813, 826 (2012)

The second flaw, as discussed below, is the USCIS’ interpretation, or more

precisely contradiction, of the Department of Labor’s regulation. The IIP agrees

that the USCIS administers the Q-1 program. Thus, the USCIS must ensure that

the Q-1 visa holder is being employed under the same wages and working

conditions as comparable domestic workers. This does not mean, however, that

the USCIS must author the position description for the comparable domestic

worker and calculate the prevailing wage for that position.

The USCIS and Congress acknowledge that determining the actual wages

and working conditions of comparable domestic workers is within the province of

the Department of Labor which administers the Fair Labor Standards Act (see

particularly 29 U.S.C. § 203(e)(4)(A)(i) and publishes the Dictionary of

Occupational Titles and the Occupational Outlook Handbook. See, e.g., USCIS

Adjudicators Manual § 14.6 The almost all USCIS labor determinations require

certification by DOL.

http://www.uscis.gov/USCIS/Resources/Congress/Testimonies/2011/testimony_2

23


011331_H-1B_Neufeld.pdf , P. 1; http://www.flcdatacenter.com/CaseH1B.aspx;

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f

6d1a/?vgnextoid=ebbdb1a97a53f210VgnVCM100000082ca60aRCRD&vgnextch

annel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

The Trial Court points out that there is no pre-approval DOL certification

required by the Q-1 statutory provision, but wrongly concludes that this precludes

any reliance on DOL expertise in resolving the question of the appropriate

comparable domestic worker and the prevailing wage (if any) for the position.

Regardless of the views of the Trial Court, the USCIS recognized in the Q-1

context the expertise of the DOL and cited the DOL definition when it compared

the IIP’s cultural visitors to teacher assistants. Thus, despite his contrary view, the

Trial Court owes Chevron and regulatory deference to the Department of Labor

with regard to the definition of the comparable domestic worker and the prevailing

wage, if any, for that worker, not to the USCIS.

Further, the Trial Court seems to take a sui generis approach to Chevron.

While acknowledging that the Congress spoke directly to many issues in relation

to the Q-1 visa, its failure to resolve all Q-1 issues requires in the Trial Court’s

view Chevron deference to all USCIS Q-1 determination whether or not addressed

by Congress in the statute . App. 62

24


http://www.flcdatacenter.com/CaseH1B.aspx

III. The Statute and Regulation

In 1990 the Congress enacted section 101(a)(15)(Q) of the INA, 8 U.S.C.

§ 1101(a)(15)(Q), which established a new “Q” nonimmigrant visa category for

certain participants in cultural exchange programs. The new category provided,

inter alia, that nonimmigrant Q visa holders must “be employed under the same

wages and working conditions as domestic workers.”

The Q-1 implementing regulations were issued as an interim rule by the INS

on August 22, 1991, and as a final rule on November 24, 1992, and are codified at

8 C.F.R. § 214.2(q). 57 FR 55056 The USCIS succeeded the INS, but did not

alter the regulation. The regulations provide, inter alia, that the employer must

submit proof that it ‘[w]ill offer the alien(s) wages and working conditions

comparable to those accorded local domestic workers similarly employed,” 8

C.F.R. 214.2(q)(4)(I)(D).

IV. The IIP Cultural Visitors Were To Be Employed under the same wageand working conditions as domestic workers.

A. The IIP Cultural Visitors Were Not Teacher Assistants

The first question to answer is whether the IIP Cultural Visitors were

Teacher Assistants. The IIP submitted considerable evidence and explanatory

narrative demonstrating that on a national and local level the domestic worker

analog for the IIP cultural visitors would be unpaid interns or volunteers. See,

e.g., CAR 72-74, 618-633, 875-1061, 1131-1194, 1209-1327, 1533-1535, 2079-

25


2095, App. CAR 2527-2718 Initially, the AAO and the VSC determined that the

payments which the IIP made to the cultural visitors was appropriate, and did not

suggest that their position was the equivalent of a teacher assistant. Indeed, just

the opposite. In a decision issued on October 6, 2009, the AAO concluded:

The participating interns present instructional activities designed to enrichor supplement the schools’ existing curricula with age-appropriate culturaland language lessons and courses. The substantial evidence in the recordfurther establishes that program participants are utilized by the schoolssolely or primarily to assist teachers with cultural and language lessons, orto provide supplemental enrichment lessons, and not to perform generalinstructional or other non-cultural duties unrelated to the program’s culturalcomponent. App. 130

Similarly, in its second decision (on the successor IIP petition) the AAO

concluded on April 22, 2010:

The petitioner has established that its program participants are utilized bythe host schools solely or primarily to assist teachers with cultural andlanguage lessons, or to provide supplemental enrichment lessons, and not toperform general instructional or administrative duties unrelated to theprogram’s cultural component. While the petitioner acknowledges thatparticipants will occasionally be asked to assist teachers with non-culturalactivities, the AAO finds sufficient evidence to establish that such non-cultural activities are in fact occasional and not the basis for the program. App. 115

Nonetheless, the AAO subsequently concluded that the IIP was not paying the

cultural visitors appropriate wages because (1) it had not met its burden of proving

that it had actually paid the monies it claimed to have paid and further had not

shown how it calculated the value of the payments. App. 116, et seq. In addition,

the AAO noted that the participants paid a fee to the IIP’s foreign affiliates for

their selection, testing, training and other services which exceeded the cash

actually paid to them.

26


Noting the IIP’s argument that the appropriate measure was the legion of

unpaid volunteers and interns documented in the record, the AAO concluded:

The AAO acknowledges the petitioner’s claim that many “internships”throughout the United States are unpaid, even in situations in which internsmay perform complex duties similar to those performed by a salariedemployee. However, the Q-1 regulations specifically require the petitioningemployer “to offer the alien(s) wages and working conditions comparable tothose accorded local domestic workers similarly employed.” 8 C.F.R. §214.2(q)(4)(i)(D) Therefore, it is reasonable to conclude that theregulations require that the petitioner to [sic] pay the beneficiaries actual wages commensurate with their duties.(footnote omitted) App. 1193

The IIP moved to reopen and reconsider, pointing out, in this regard, that

the AAO had failed to state what it considered to be an analogous domestic worker

and appropriate wage. In response on June 21, 2010, the AAO sustained its prior

decision and provided its specific rationale.

A review of the host school applications, participant evaluations and hostschool evaluations suggests that the tasks performed by the petitioner'sprogram participants fall within the occupation of teacher assistant. Theywork as assistants to language, art, music, physical education and generalclassroom teachers, provide enrichment classes for small groups of students,and lead students in preparing special projects and demonstrations. Whilethe petitioner emphasizes that general teaching assistant duties should notbe the main purpose of the program, it appears that many participants maysupport staff teaching general classes not related to their native language orculture, such as working with the school band, helping younger studentswith reading, or supervising children at recess. Some prior participants whoentered the program with prior teaching experience indicate that they haveindependently taught high-school level language and culture courses. All ofthese are duties that could be performed by a paid teaching assistant. Whilethe typical domestic worker would not be able to provide a lesson inJapanese calligraphy, he or she may possess specialized skills not possessed

The AAO also dropped a footnote which suggested that the DOL and Inc.3/

Magazine had opined that unpaid internships were illegal under the Fair LaborStandards Act and the minimum wage laws. In fact, this determinationmisconstrues the law and regulation.

27


by the petitioner's program participants and be capable of assisting teachersin other areas. That does not make the role of the petitioner's teachingassistants entirely different from the roles filled by domestic teachingassistants. App. 99

In support of its view, the AAO cited and quoted as authority Department of

Labor's Occupational Outlook Handbook (OOH), 2010-11 Edition, which states

the following regarding the occupation of teacher assistant:

Teacher assistants provide instructional and clerical support for classroomteachers, allowing teachers more time for lesson planning and teaching.They support and assist children in learning class material using theteacher's lesson plans, providing students with individualized attention.Teacher assistants also supervise students in the cafeteria, schoolyard, andhallways, or on field trips; they record grades, set up equipment, and helpprepare materials for instruction. Teacher assistants also are called teacheraides or instructional aides. Some assistants refer to themselves asparaprofessionals or paraeducators.

Some teacher assistants perform exclusively non-instructional or clericaltasks, such as monitoring nonacademic settings. Playground and lunchroomattendants are examples of such assistants. Most teacher assistants,however, perform a combination of instructional and clerical duties. Theygenerally provide instructional reinforcement to children, under thedirection and guidance of teachers. They work with students individually orin small groups—listening while students read, reviewing or reinforcingclass lessons, or helping them find information for reports. At the secondaryschool level, teacher assistants often specialize in a certain subject, such asmath or science. Teacher assistants often take charge of special projects andprepare equipment or exhibits, such as for a science demonstration.

However, the AAO did not repudiate its prior conclusion that the non-cultural

duties were a small part of the duties of the cultural visitor and discouraged by the

IIP.4

In fact, most host school application forms did not permit the selection of teacher4/

assistant duties for the cultural visitor, and the more recent material precluded thisfunction. See, e.g., CAR 320, 1781, 1931, App. CAR 2278, 2289; See also App. CAR 2433 Nonetheless, cultural visitors were occasionally called upon to carryout what could be considered teacher assistant duties in furtherance of theirexposure to the American educational system.

28


The AAO’s determination is not supported by either the position title or the

position description. “Teacher assistants provide instructional and clerical support

for classroom teachers, allowing teachers more time for lesson planning and

teaching. They support and assist children in learning class material using the

teacher's lesson plan.... * * * They generally provide instructional reinforcement

to children, under the direction and guidance of teachers.” (Emphasis supplied) In

short, they do precisely what the job title says they do; they support the teacher in

carrying out the teacher’s duty. This is made even cleared by the Department of

Labor, the author and publisher of the OOH on which the AAO properly relied,

which defines the position of “teacher assistant” as follows:

Perform duties that are instructional in nature or deliver direct services tostudents or parents. Serve in a position for which a teacher or anotherprofessional has ultimate responsibility for the design and implementationof educational programs and services. O-NET 25-9041-00 (Emphasissupplied)

The IIP cultural visitor does not utilize the teacher's lesson plans, nor carry

out his or her program responsibility under the direction and guidance of teachers.

It is the cultural visitor, with the training and guidance of the IIP, not a teacher or

another professional, who has ultimate responsibility for the design and

implementation of the program to share knowledge of their home country. Indeed,

it is because of the inability of the school and its teachers to provide the resources

which are the responsibility of the cultural visitor that the cultural visitor is

assigned to the school. No plain reading of the DOL definition of teacher assistant

would lead to the conclusion reached by the AAO, and no reasonable mind would

29


accept as adequate to support the AAO’s conclusion a position description which

differs so significantly from the role of the IIP cultural presenter. Rather, the only

relevant evidence in the record as to the parallel domestic position and wages, as

defined by the DOL and as discussed above, is that they are unpaid volunteers or

interns.

As will be discussed below, the Trial Court did not address this issue directly.

B. The IIP Cultural Visitors Were comparable to unpaid interns or volunteers.

In submissions leading to the four USCIS determinations under appeal, the

IIP submitted considerable evidence and explanatory narrative demonstrating that

on a national and local level the domestic worker analog for the IIP cultural visitors

would be unpaid interns or volunteers. See CAR 72-74*, 618-633, 875-5

1061,1131-1194, 1209-1327, 1533-1535, 2079-2095, 2527-2718* (*Repr. in App)

In response, as set out above, the USCIS initially took the position that unpaid

internships were illegal. App. It later abandoned that position and conclu0ded that

the IIP cultural visitors were teacher assistants. App. When the IIP precluded their

cultural visitors from performing any tasks which related to those of a teacher

assistant, the USCIS, as the Trial Court approvingly put it, “construed ‘same

wages,’ 8 U.S.C. § 1101(a)(15)(Q), to presuppose the payment of some wages to

recipients under Q-1 visas, CAR at 1207.” (Emphasis in original) App. 65

The IIP had initially likened the cultural visitors to Americorp workers as well,5/

but abandoned that analogy early on as too difficult to explain.

30


One need not be a statutory originalist to understands how this

interpretation violates both the plain language and the congressional intent of the

statute. The INA says the Q-1 beneficiary shall:

be employed under the same wages and working conditions as domestic workers similarly employed §101(a)(15)(Q)(1)

The statute does not say that the Q-1 beneficiary shall:

be employed and receive some wages

The USCIS interpretation advanced by the Trial Court renders superfluous and

eliminates the statutory modifier that the wages must be the “same...as domestic

workers similarly employed.” Statutes are to be interpreted to give effect to all the

language contained therein. See, e.g., Wisconsin Electric Power Co. v Department

of Energy, 778 F.2d 1, 3-4 (D.C. Cir. 1985)(DOE’s elimination of two words from

statute obliterates express statutory language “in contravention of long-settled

principles of statutory construction”)

The statutory language plainly means that the cultural exchange visitor shall

receive the same wage and be allowed the same working conditions as the

equivalent or paradigm domestic worker. To ensure that this occurs, the USCIS

was required to engage in a two-part exercise.

1. Identify the equivalent or paradigm domestic worker, and

2. Identify the wages and working conditions of that equivalent or

paradigm domestic worker.

The English language permits no other meaning to this unusually lucid statement

of statutory intent. Further, if there was any doubt at all, the legislative history

31


states that the policy behind this phrase is to provide safeguards in terms of wages

and working conditions. H.R. REP. 101-723(I) at 81 (1998), reprinted in 1990

U.S.C.C.A.N. 6710, 6751 By requiring parity between the pay and working

conditions received by the cultural visitor and the domestic worker, the Congress

sought to ensure that cultural visitors would not replace domestic workers because

they were cheaper. This is a leitmotif of immigration legislation.

The USCIS initially said no different. In its own regulatory history, it

cautions that it will not approve a petition if the employer (1) pays the visitor less

than it pays its own domestic employees who perform similar work or (2) pays its

own domestic workers wages which are “significantly” less than the wages paid to

other domestic worker similarly employed in the locality, thereby suggesting a

subterfuge. 56 FR 41623

This Court is faced with the quintessential APA question: was there

substantial evidence in the record to support the USCIS’ decision and did that

evidence lead rationally to that conclusion. The IIP submitted considerable

evidence relating to the role and importance of unpaid interns and volunteers in

this Country as well as the acknowledgment by the DOL that they were not

required to be paid wages. If accepted by the USCIS, this evidence would have

been considered “substantial” within the APA context. As discussed above, the

USCIS concluded incorrectly that the IIP cultural visitors were teacher assistants.

When that determination was foreclosed, the USCIS simply rejected this evidence

32


without presenting contrary evidence. This was a violation of the APA as

explained in Butte County v. Hogen, 613 F.3d 190 (D.C. Cir. 2010):

[A]n agency's refusal to consider evidence bearing on the issue before itconstitutes arbitrary agency action within the meaning of § 706. Thisproposition may be deduced from case law applying the substantialevidence test, under which an agency cannot ignore evidence contradictingits position. "The substantiality of evidence must take into account whateverin the record fairly detracts from its weight." Although we are dealing withthe question whether agency action is arbitrary or capricious, "in theirapplication to the requirement of factual support the substantial evidencetest and the arbitrary or capricious test are one and the same." (Cit. omitted)

C. The Fees The Cultural Visitors Pay To The IIP Affiliates in Asia for TheirSelection, Testing, Training, Monitoring and Other Services Need Not BeReimbursed by the IIP.

The USCIS concludes that the fees which the participants pay to the IIP’s

foreign affiliates for their selection, testing, training, monitoring and other services

so diminish the “wages” paid (whatever they should be) that the wages are prima

facie less than the appropriate wages. It does costs the cultural visitors/interns

more to participate in the IIP program than they receives in cash back. Indeed, just

their airplane flights exceeds the $100 per month stipend the cultural visitors

receive. Further, the participants pays fees to the organizations in their home6

country which chooses them, trains them, prepares them for their visit, and

provides cultural materials for their use when here. However, the participants pay

Utilizing the calculus which the IIP furnished to the USCIS to derive the value of6/

the room,. board and transportation furnished to the cultural visitors would resultin a value exceeding any payment made to the IIP affiliate abroad. App. CAR 811 The AAO has concluded, however, that only the cash paid to the intern may becounted as discussed above.

33


absolutely nothing to the IIP-US, the US 501(c)(3) petitioner, and the IIP-US

exists through donations as well as unsalaried and uncompensated staff.

As a threshold matter, it would be irrelevant if the fees which the

participants paid were for accommodations, board and other incidental expenses

(which appears to be the USCIS’ major complaint) because the equivalent

domestic worker (whoever that is) does not receive accommodations, board and

other living expenses. These expenses are paid by the domestic worker and, to

ensure parity with the domestic worker, should be paid by the IIP cultural visitor

as well.

Nor is the payment of fees unusual. Material relating to unpaid internships

for which an entity receives fees from the intern was well documented before the

AAO. See, e.g., App. CAR 2538-2718; CAR 1247-1327

The IIP-US utilizes affiliates and contractors in Asia to supply cultural

visitors who meet the demanding requirements of the statute and regulations, who

are sufficiently well trained to perform in a manner which is consistent with the

spirit and purpose of the statutory mandate, and who have been recruited and

vetted in their country of origin by individuals who speak the cultural

visitor’s/intern’s native language. There is nothing in the statute or regulations

which authorizes the USCIS to disqualify a petitioner because a fee is charged to

the Q-1 program participants. The payment of a pre-employment fee has never

been part of the FLSA or minimum wage equation. Ivanov v. Sunset Pools

Management, Inc., 567 F. Supp. 2d 189, (D.D.C. 2008)

34


Of course. the USCIS could rightly be concerned if the payment of the fee

was a0 sham transaction. In this case, however, the IIP affiliate which receives the

fee locates, chooses, trains, and monitors the cultural visitor. This is a highly

complex task, as demonstrated by the interview process and curricular materials

provided to the cultural visitors. App. CAR 2030-2055 (interview materials), App.

CAR 2430-2496, CAR 635-786, CAR 1346-1352, CAR 2098-2248 (curricular

materials).

Under the circumstances, the requirement that the monies paid to the

cultural visitors be discounted by any fees they pay to the IIP affiliates for

selection services rendered was arbitrary, capricious, and unsupported by

regulation or statute.

V. The new and novel interpretations of the Q-1 statute and regulationviolate the requirements of the Regulatory Flexibility Act.

The Regulatory Flexibility Act (RFA), 5 U.S.C. § 601, et seq., requires an

analysis of and certification that the regulation being promulgated would not have

a significant economic impact on a substantial number of small entities. Both the

Q-1 implementing regulations and the Q-1 final rule were published following a

preliminary analysis under the RFA and a certification that the implementing

regulation and final rule would not have a significant economic impact on a

substantial number of small entities.

This conclusion was likely correct based upon the plain language of the

regulation and the decades-long approval of the IIP programs. Nonetheless,

35


the determinations of the USCIS described above repudiate, are irreconcilable

with, and amend the Q-1 regulation in a manner which have a significant

economic impact on a substantial number of small entities. The IIP’s program

ended as a result of the reinterpretation imposed in 2010, and the total number of

Q-1 visas issued has decreased from 2,444 in 2008 to 1,626 in 2009 to 1,589 in

2010 to 1,412 in 2911. http://www.travel.state.gov/pdf/MultiYearTableXVI.pdf

Relying solely on just the three IIP petitions in the Appendix at 2, 1362, and

2258, the IIP’s annual out of pocket expenditures for the 33 cultural visitors would

rise from $118,800.00 to approximately $1,000,000.00 under the USCIS’

redetermination that the prevailing wages for teacher assistants and reimbursement

for selection and training costs must be paid to each cultural exchange visitor.

This is clearly a significant economic impact.

It is clear that the USCIS was required to carry out a new RFA in

associations with its changed views, and that the remedies provided in the RFA

should be applied. U.S. Telecom Assn. v. FCC, 400 F.3d 29, 42 (D.C. Cir. 2005)

The Congress could not have intended that an initial RFA analysis would be

sufficient despite significant changes in the regulation, whether through

interpretation or not. Indeed, the salutary effects of the RFA would be upended if

this was true. Id.; cf. Thompson v. Clark, 741 F.2d 401, 405 (D.C. Cir. 1984)

The USCIS should have carried out and published the appropriate economic

analysis of its newly-interpreted regulations prior to imposing them.

36


It is clear as well that this Court has the authority to review the USCIS’

compliance with the RFA, and, if defective, provide statutory relief.

5 U.S.C. § 611. Judicial review

(a)(1) For any rule subject to this chapter, a small entity that is adverselyaffected or aggrieved by final agency action is entitled to judicial review ofagency compliance with the requirements of sections 601, 604, 605(b),608(b), and 610 in accordance with chapter 7. Agency compliance withsections 607 and 609(a) shall be judicially reviewable in connection withjudicial review of section 604.

* * * * *

(4) In granting any relief in an action under this section, the court shall orderthe agency to take corrective action consistent with this chapter and chapter7, including, but not limited to —

(A) remanding the rule to the agency, and

(B) deferring the enforcement of the rule against small entities unless thecourt finds that continued enforcement of the rule is in the public interest.

See, also, U.S. Telecom Assn. v. FCC, supra at 43

The Trial Court took the opposite view, advancing Orengo Caraballo v.

Reich, 11F. 3d 186, 195 (D.C. Cir. 1993). Orengo dealt with the reviewability of

an agency decision under the APA. While the APA precludes review of

“interpretive rules, general statements of policy, or rules of agency organization,

procedure, or practice, ” the RFA has no such preclusion. Compare 5 U.S.C.

553(b)(A) and 5 U.S.C. 601(2)

The Trial Court also sought RFA support from U.S. Telecom Assn. v. FCC,

supra at 42. U.S. Telecom, held that the RFA required an economic analysis if an

NPRM was required, and the USCIS has never argued that an NPRM (and final

37


rulemaking” was not required. The USCIS argued below, and the Trial Court

agreed, that it avoids the RFA because its new interpretation is not new. Because

of the enormous impact of the revisionist interpretation of the regulation

documented above, this argument is irrelevant. If the unarticulated impact of the

regulation has always been present, then the INS was obligated to do an economic

analysis at that time. (This seems unlikely, however, in view of the decades of

approvals of the IIP visa petitions containing the provisions the USCIS now

rejects.) If the revisions are newly minted, as the IIP argues, an RFA analysis

must be carried out as provided by statute.

Finally, the Trial Court determined that there were not sufficient small

entities affected by the regulation to invoke the RFA. There is no evidence in the

record to support this determination, however, and even today there are more than

1,400 Q-1 visas issued annually as discussed above. Further, the statute gives

standing to one small entity to seek judicial relief as also discussed above.

VI. The IIP Claims are not moot.

The USCIS argued and the Trial Court agreed that the IIP’s request for

relief in relation to the denials of its Q-1 visa petitions has been mooted because

the requested program approval periods have passed and consequently the

judiciary is powerless to offer relief.

Fortunately, the USCIS Q-1 petitioning process allows for more flexibility

than the USCIS has suggested. New participants can be substituted after advising

the appropriate consular office by letter. 8 C.F.R. § 214.2 (q)(6) New schools can

38


be substituted after notice to the USCIS as the employer–the IIP–remains

unchanged. 8 C.F.R. § 214.2(q)(5)(iv) A petition and motion to extend the

duration of the program cab also be filed. 8 C.F.R. § 214.2(q)(10); 8 C.F.R. §

214.1(c)

A matter is moot if the passage of time deprives the plaintiff of effective

relief. There are, however, exceptions to the doctrine if the claim attacks an

ongoing agency policy or if “the claim for relief...[is] capable of repetition but

evading review.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316,

321 (D.C. Cir. 2009) Under the first exception, a claim is not moot when it seeks

relief as to an ongoing agency policy. Id. This is clearly such a case as the USCIS

made clear in its decisions. In addition, there is a second exception if the suspect

policy can be applied to future IIP petitions, but the duration of the program

periods (at most a 10-month school year for the IIP) is not sufficiently long to test

the policy in the Courts. Del Monte at 321.

The Trial Court acknowledged these exceptions, but in a departure from

logic and common agency experience circumvented them. The Trial Court agreed

that the future petition denials could evade review, in fact were likely to do so

under the standard set out in Beethoven Com LCC v. Librarian of Congress, 194 F.

39


3d 939, 951 (D.C. Cir. 2005). But, held the Trial Court, the IIP failed to

demonstrate that the USCIS would in the future deny new IIP petitions for the

same reasons it denied the three visa petitions under review here. The Trial

Court’s proposed syllogism:

All three of IIP’s most recent visa petitions were denied by the USCIS

All of IIP’s visa petitions prior to the three most recent petitions wereapproved by the USCIS

All future IIP petitions will be approved by the USCIS App. 59

Consequently, the Trial Court held it was not reasonable to expect that the USCIS

would continue to deny future IIP petitions. Considering the ferocity of the

USCIS’ support of its denials before the Trial Court, it is impossible to see how

the Trial Court could reasonably expect the USCIS to revert to a position it had so

clearly abandoned. Even if the USCIS had admitted error, as this Court noted in

United States v. Philip Morris USA Inc., 686 F.3d 832, 836 (D.C. Cir 2012), “a

defendant claiming that its voluntary compliance moots a case bears the

formidable burden of showing that it is absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.”, quoting Friends of

the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 190 (2000).

In support of his view that there was no reasonable possibility that the

future IIP petitions would be denied, the Trial Court cited Spencer v. Kemna, 523

U.S. 1 (1998). Spencer considered whether the end of a prison term mooted

review of the revocation of the parole granted during that term. Justice Scalia held

that the possibility that Mr. Spencer would be considered for parole during a

40


second prison term and rejected on the grounds of his prior parole revocation was

simply too remote to be considered a “reasonable expectation.” Spencer at 17-18

Spencer’s circumstances are far different than those before this Court where the

IIP for decades has petitioned for Q-1 visas and has affirmed that it intends to do

so in the future if the impediment inflicted by the USCIS is removed. App. 140

As to the second exception to the mootness doctrine–an attack on an

ongoing agency policy–the trial Court dropped a footnote to suggest that the

USCIS denial of the IIP petitions had nothing to do with an ongoing agency

policy, but rather was based on the facts presented in the petition “and was not

reflective of an agency-wide policy.” App 58

In support of his view that there was no reasonable possibility that the

future IIP petitions would be denied, the Trial Court cited Spencer v. Kemna, 523

U.S. 1 (1998). Spencer considered whether the end of a prison term mooted

review of the revocation of the parole granted during that term. Justice Scalia held

that the possibility that Mr. Spencer would be considered for parole during a

second prison term and rejected on the grounds of his prior parole revocation was

simply too remote to be considered a “reasonable expectation.” Spencer at 17-18

Spencer’s circumstances are far different than those before this Court where the

IIP for decades has petitioned for Q-1 visas and has affirmed that it intends to do

so in the future if the impediment inflicted by the USCIS is removed. App.137-140

41


All visa petitions, indeed almost all agency petitions, are decided on the

facts set out in the petition and the agency’s understanding of the statute and

regulations which govern it consideration of the petition. It appears that the Trial

Court is suggesting that the adjudication of the IIP petitions was based on a

discretionary flight of fancy of the examiner who made no effort to apply the

statute and the agency regulations. This cannot be correct. It would be the

quintessential example of arbitrary and capricious. Just as the APA would

prohibit an agency from deviating from its own regulation, the APA would be

turned on its head if the agency could entirely ignore its own regulations. In any

event, throughout the denials of the IIP petitions the USCIS referred to the statute

and published regulations as authority. Nowhere in the denials did the USCIS say

“better luck next time.”

The Trial Court referred us to Super Tire Engineering Co. v. McCorkle, 416

U.S. 115 (1974) in support of his position. Super Tire, however, held that a suit

for a declaratory judgment was not moot (although the request for injunctive relief

was) if the “litigant can show the existence of an immediate and definite

governmental action or policy that has adversely affected and continues to affect a

present interest.” Super Tire at 125-126 (emphasis supplied) If this was not true,

as the Supreme Court pointed out, a significant number of governmental acts

would have no judicial remedy.

42


In any event, the Trial Court was wrong in its basic premise that the USCIS

policy was unarticulated. First of all, it is the codified regulation which the

USCIS believes foreclosed approval. Second, the AAO, as it puts it, “produces

appellate decisions that provide fair and legally supportable resolutions of

individual applications and petitions for immigration benefits. These decisions

provide guidance to applicants, petitioners, practitioners and government officials

in the correct interpretation of immigration law, regulations and policy.”

http://www.uscis.gov/portal/site/uscis/menuitem.2540a6fdd667d1d1c2e21e10569

391a0/?vgnextoid=0609b8a04e812210VgnVCM1000006539190aRCRD&vgnext

channel=0609b8a04e812210VgnVCM1000006539190aRCRD&path=%2FD10+-

+International+Cultural+Exchange+Visitor+%28Q%29 These decisions are

published, and two of the three denials under review here were published by the

AAO on the internet. See

http://www.uscis.gov/err/D10%20-%20International%20Cultural%20Exchange%

20Visitor%20%28Q%29/Decisions_Issued_in_2010/Apr222010_01D10101.pdf

and

http://www.uscis.gov/err/D10%20-%20International%20Cultural%20Exchange%

20Visitor%20%28Q%29/Decisions_Issued_in_2009/Oct062009_01D10101.pdf

Under these circumstances, the requirements of Better Government Ass'n v.

Department of State, 780 F.2d 86 (D.C. Cir. 1986), cited by the Trial Court, were

met. This Court has not changed its view concerning mootness described above.

Thus, the matter is not moot.

43


VII. Even if Some of the Requested Relief was Mooted Out, Other Relief wasNot. Mootness looks backwards, while the co-relevant Article III panoply looks

0forward. In circumstances such as those set out above, where there is a clear

course of agency conduct associated with an assertion that but for agency action

and impending injury the plaintiff would have moved forward in the past and

intends to move forward in the future, as here, justiciability has never been denied

on case and controversy grounds. See, e.g., Babbitt v. United Farm Workers

National Union, 442 U.S. 289, 297 et seq. (1979); Medimmune, Inc. v. Genetech,

Inc., 549 U.S. 118, 127 (2007).

VIII. The decision of the USCIS to limit IIP programs to 9 months instead ofthe statutory and regulatory limitations of 15 months was improper.

Prior to June 1, 2010, the IIP interns utilized the short holiday breaks during

the school’s academic year as well as the school’s summer recess to share their

cultural values in summer programs or camps, to take courses to improve their

English, to prepare for their future duties for the next school year, to increase their

knowledge of the United States and its peoples and cultural traditions, or all of

these in varying mixes. See, e.g., App. CAR 378-379, CAR 338, 412 In its

decision of April 22, 2010, the AAO held that since schools were not in session

during the summer and extended holiday breaks, the IIP program must end prior to

such breaks even if it was to continue beyond that break. App. CAR 2755-2756

Thus, despite the 15-month period customarily permitted for a Q-1 program, the

IIP program must be no longer than 9 months (the academic year) and possibly no

44


longer than 4 months depending on which semester it started and the meaning of

“extended beaks” which was not defined. Id.

This determination was arbitrary and capricious–as well as unsupported by

the statute-for a number of reasons. First, the guidance provided when the

regulation was issued noted that reciprocity–the cultural visitor learning about the

American way of life–was implicit in the program. 57 FR 55060 Second, under

the statutory mandate the working conditions of the cultural visitor must be the

same as domestic workers, and the working conditions of non-administrative

domestic school workers, be they salaried or volunteer, provide extended breaks

and summer holidays. Therefore, the IIP is required under the statute to give the

cultural visitors these extended breaks and summer holidays as well. Third, the

duration of the visa of all others in the academic settings continue beyond such

extended breaks under similar circumstances under USCIS and Department of

State regulations. 8 C.F.R. 214.2(f)(5)(iii); 22 C.F.R. 62.23(e)(1) Similarly,

participants in the USCIS-administered O-1 program, a program which allows

individuals with extraordinary ability to perform, lecture and teach in the Unites

States, may legally remain in the United States (or not as they choose) during gaps

in O-1 activities, including vacations and travel between engagements without loss

of their O-1 status. Likewise, participants in the USCIS-administered P-1

program, a program which allows individuals to perform in the Unites States, may

legally remain in the United States during periods between engagements without

loss of their P-1 status.

45


Fourth, presence in the United States is not an issue as all cultural visitors

are eligible to adjust for the summer vacation to B visas and then be requalified for

the Q-1 program following the extended break or summer vacation. Indeed, the

only advantage to the USCIS from the convoluted process is that it requires the

payment by each cultural visitor of a change in status petition fee and then the

payment by the IIP of a second Q-1 petition fee for the continuation of the

program after the break.

The only justification given by the AAO for its determination is 8 C.F.R. §

214.2(q)(1)(iii), which states:

Duration of program means the time in which a qualified employer isconducting an approved international cultural exchange program in themanner as established by the employer's petition for program approval,provided that the period of time does not exceed 15 months.

The AAO apparently mistakes the employer, or fails to understand the IIP

program. It is not the school (which maintains the academic calendar), but rather

the IIP which is the “employer” for statutory and regulatory purposes. The IIP has

determined that it is required by statute and in the program’s best interests–to have

the cultural visitors spend their breaks and summer vacation taking courses to

improve their English, preparing for their continuing duties for the next school

year, and increasing their knowledge of the United States and its peoples and

cultural traditions. The USCIS decision to the contrary violates the APA.

46


IX. The IIP may furnish cultural visitors to schools solely as part of theschool's established curriculum to a limited number of students enrolled inthe classes and for programs which charge a fee.

The AAO determined in its decision of April 22, 2010 that the IIP may not

supply cultural visitors to programs where they would share their culture by

teaching classes solely as part of a school's established curriculum to a limited

number of fee-paying students. The statute and regulation are contrary. The

statute contains no such restriction and the regulation, set out immediately below,

precludes only the sharing of culture and tradition in “a private home” (as would a

French maid or tutor in private employ) or an “isolated business setting” (as would

a Canadian fisherman in a corporate hunting lodge).

Requirements for program approval.

An international cultural exchange program must meet all of the followingrequirements:

* * * * *

Accessibility to the public. The international cultural exchange programmust take place in a school, museum, business or other establishment wherethe American public, or a segment of the public sharing a common culturalinterest, is exposed to aspects of a foreign culture as part of a structuredprogram. Activities that take place in a private home or an isolated businesssetting to which the American public, or a segment of the public sharing acommon cultural interest, does not have direct access do not qualify. 8C.F.R. § 214.2(q)(3)(iii)(A)

Thus the limitations on schools open to the public, with or without tuition, is arbitrary and

capricious as well as contrary to statute and regulation since the only prohibition relates to

private facilities to which the public, or a segment thereof, cannot gain access, even for ready

money.

47


X. The new and novel interpretations of the Q-1 statute and regulationviolate the notice and comment requirements of the AdministrativeProcedures Act.

The Administrative Procedures Act, 5 U.S.C. §551, et seq., require the

provision of notice and the opportunity for comment when an agency adopts a

regulation with the force of law. The USCIS predecessor agency met this

requirement when it promulgated the Q-1 regulation currently in effect.

The determinations of the USCIS described above repudiate, are

irreconcilable with, or amend the Q-1 regulation as set out in the Code of Federal

Regulations as described in detail above. Consequently, the Administrative

Procedures Act requires that the Q-1 regulation, as amended by the USCIS’s

determinations set out above, be published for notice and comment before they

were implemented. As they were not, they cannot be applied to deny the IIP’s

petitions.

CONCLUSION

For the foregoing reasons, the International Internship Program

respectfully requests that the Court reject the reasoning of the District Court and

remand with instructions to enter and procure the requested relief.

48


Respectfully requested,

/s/ Frederic W. Schwartz, Jr

Frederic W. Schwartz, Jr.1055 Thomas Jefferson St., NWSuite M-100Washington, DC 20007(202) 463-0880 197137FAX: (202) 247-6010Email: [email protected]

Attorney for Appellant/Plaintiff

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1. This brief complies with the type-volume limitations of Fed. R. App.Proc. 32(a)(7)(B) because it contains 12,904 words excluding the parts of the briefexempted by Fed. R. App. Proc. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. Proc.32(a)(5) and the type style requirements of Fed. R. App. Proc. 32(a)(6) because ithas been prepared utilizing WordPerfect X5 and 14 point Times Roman.

CERTIFICATE OF SERVICE

I hereby certify that on this 28 day of September, 2012, a copy of theth

foregoing as filed electronically was transmitted electronically through the Court’sCM/ECF system to Durwood H. Riedel, Esq., Trial Attorney, U.S. Department ofJustice, Civil Division - Office of Immigration Litigation District Court Section, P.O. Box868, Ben Franklin Station, Washington, D.C. 20044

/s/ Frederic w. Schwartz, Jr. Frederic W. Schwartz, Jr.

49


mailto:[email protected],

IIP v. USCIS re cultural exchange Q-1 appellants brief 9-28-12

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