IRISH HELP AT HOME LLC V. ROSEMARY MELVILLE, No. 15-15830 (9th Cir. 2017)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAR 10 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT IRISH HELP AT HOME LLC and BRIDGET MCDERMOTT, No. U.S. COURT OF APPEALS 15-15830 D.C. No. 3:13-cv-00943-MEJ Plaintiffs-Appellants, MEMORANDUM * v. ROSEMARY MELVILLE, California Service Center, U.S. Citizenship and Immigration Services; et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Maria-Elena James, Magistrate Judge, Presiding Argued and Submitted February 17, 2017 San Francisco, California Before: TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,** District Judge. Irish Help at Home LLC (“Irish Help”) filed a petition pursuant to 8 U.S.C. § 1101(a)(15)(H)(i)(b) to classify Bridget McDermott as a nonimmigrant “specialty * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. occupation” worker. The United States Citizenship and Immigration Services (“USCIS”) denied the petition, finding that Irish Help failed to establish that the Deputy Controller position that McDermott would fill was a specialty occupation. In this action filed by Irish Help seeking review under the Administrative Procedure Act (“APA”), the district court granted summary judgment to the government defendants. We have jurisdiction of Irish Help’s appeal under 28 U.S.C. § 1291 and affirm. 1. The determination by the USCIS that the Irish Help Deputy Controller position was not a specialty occupation was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Family Inc. v. USCIS, 469 F.3d 1313, 1315 (9th Cir. 2006) (quoting 5 U.S.C. § 706(2)(A)) (describing standard of judicial review of agency action under the APA). The Department of Labor’s Occupational Outlook Handbook entry on Financial Managers did not compel the conclusion that the position met the statutory requirement, 8 U.S.C. § 1184(i)(1)(B), of requiring a degree in a “specific specialty.”1 See In re Michael Hertz Assocs., 19 1 The Handbook described the educational requirements for Financial Managers as follows: A bachelor’s degree in finance, accounting, economics, or business administration is often the minimum education needed for financial managers. However, many employers now seek candidates with a master’s degree, preferably in business administration, finance, or economics. 2 I. & N. Dec. 558, 559–60 (B.I.A. 1988) (“[T]he requirement of a degree of generalized title, such as business administration,” does not render an occupation a “profession.”). A prior unpublished and non-precedential USCIS decision interpreting a previous Handbook edition does not make the decision in this case arbitrary or capricious. See Chan v. Reno, 113 F.3d 1068, 1073 (9th Cir. 1997) (“[U]npublished precedent is a dubious basis for demonstrating the type of inconsistency which would warrant rejection of deference.” (citation and internal quotation marks omitted)). 2. The USCIS “examine[d] the relevant data” submitted by Irish Help and “articulate[d] a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The USCIS satisfactorily explained why it concluded that the evidence proffered by Irish Help did not establish a degree requirement “common to the industry in parallel positions among similar organizations.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(2). The agency also sufficiently explained why it found Irish Help’s claims regarding the complexity of the Deputy Controller position unsubstantiated. See id. § 214.2(h)(4)(iii)(A)(2), (4).2 AFFIRMED. 2 Given these conclusions, we need not reach the USCIS’s alternative holding that McDermott was not qualified for a specialty occupation. 3
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