fedin-brothers-co-ltd-and-huy-yin-chen-v-charles-sava-district , 905 F.2d 41 ( 1990 )

905 F.2d 41

FEDIN BROTHERS CO., LTD., and Huy-Yin Chen, Plaintiffs-Appellants,
v.
Charles SAVA, District Director, Immigration and
Naturalization Service, New York, New York, and Alan C.
Nelson, Commissioner, Immigration and Naturalization
Service, Washington, D.C., Defendants-Appellees.

No. 1403, Docket 90-6027.

United States Court of Appeals,
Second Circuit.

Argued May 24, 1990.
Decided June 21, 1990.

Alan Lee, New York City, for plaintiffs-appellants.

Scott A. Dunn, Sp. Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., Robert L. Begleiter, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for defendants-appellees.

Before VAN GRAAFEILAND, MESKILL and WALKER, Circuit Judges.

PER CURIAM:

1

Plaintiffs-appellants Fedin Brothers Co., Ltd. (Fedin) and Huy-Yin Chen appeal the dismissal of their complaint by the United States District Court for the Eastern District of New York, Wexler, J. Their complaint sought review of a decision of the Immigration and Naturalization Service (INS) denying Fedin's application on behalf of Chen for a so-called "sixth preference" immigration visa pursuant to 8 U.S.C. Sec. 1153(a)(6).

2

A sixth preference visa is available to "qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States." Id. An alien may qualify for a sixth preference visa if (1) he was a manager or executive--as defined by INS regulations, see 8 C.F.R. Secs. 214.2(1)(1)(ii)(B), (C)--of an international company for at least one year prior to admittance to the United States and (2) he was transferred to the United States where he will continue to be employed in an executive or managerial capacity. 20 C.F.R. Sec. 656.10, Schedule A, Group IV.

3

Fedin submitted to the INS an application for a sixth preference visa on behalf of Chen, claiming that Chen had served as an executive of Fedin's parent corporation in Taiwan for at least one year prior to the application and that he continued to perform executive and managerial functions at Fedin in New York. At the time of the application, Fedin's work force was comprised of Chen and his secretary. The INS denied Fedin's application, inter alia, because Fedin had failed to provide adequate proof of Chen's specific duties evidencing the alleged managerial or executive nature of his work and because Fedin had not reached such a size that it realistically could support an executive or manager. Agreeing with the INS and finding no genuine issues of material fact in dispute, the district court granted summary judgment dismissing the complaint.

4

The judgment of the district court is affirmed substantially for the reasons set forth in Judge Wexler's memorandum and opinion dated November 16, 1989 and reported at 724 F. Supp. 1103 (E.D.N.Y.1989).