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Case number 14-5082, Nina Z. Appellant v. John F. Carey as United States Secretary of State.

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Mr. Terrace for the appellant, Mr. Goldsmith for the appellate.

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Let's wait till the courtroom is clear.

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Excuse me.

[00:00:49] Speaker 03:
Let's just wait till the courtroom is clear.

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Just hold on one minute till the courtroom is clear.

[00:00:54] Speaker 07:
Yes, of course.

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All right.

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Go ahead.

[00:00:59] Speaker 07:
Thank you.

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Excuse me.

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Good morning.

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I am Christopher Terrace.

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arguing this case today and with me is Mr. Mike Meyer, who's the lead counsel in this case.

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Now, since our case was filed in April 2013, we have had exactly no time whatsoever to present our case.

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So the 10 minutes that we have here today, we are very appreciative, actually, and very grateful to have this opportunity.

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Now, in perfecting this appeal, the clerk asked many questions.

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But one of the questions is, is this a complex case?

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No, it's not a complex case.

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But it is a very important case, a very, very, very important case, because the underlying issue is, will the rule of law triumph over arbitrary official action?

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And will the right to be heard be preserved?

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Now, since the district court dismissed our case,

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on the Department of State's motion to dismiss, we've been denied our day in court.

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We've been denied the right to challenge what we assert is deliberate, purposeful, and illegal government action.

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Now the question here is the State Department going to be allowed to violate with impunity Congressional Statutory Immigration Scheme statutes?

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Do aggrieved immigrant applicants have no remedy – no remedy – for illicit government action when a reasonable basis, at least a plausible basis, is articulated?

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The Department of State asserts in these proceedings, and has asserted since April 2013, our client has no right to present a case.

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We have no right whatsoever to be heard.

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The Department of State, according to their argument, can do whatever it wants, and we can say nothing about it.

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Now, the substantive issue here

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involves one date in the Department of State's publication called the Visa Bulletin.

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Now in the briefing and the record, we explain the importance of the Visa Bulletin.

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And we actually made this one of our hearing exhibits, exhibit one, because the court panel may not be familiar with this publication.

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So we provided the whole thing.

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We've tried to focus, be very focused on the small part of this Visa Bulletin,

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that we're focusing on and arguing about in these proceedings, but we thought you might like to see the full seven pages of this publication, which comes out every month.

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And all we're talking about here, all we're talking about is one date.

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Third preference, employment-based, China, other workers is the name for it.

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One date on page three.

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The accusation that we've been met from the beginning and confront here today is that we're trying to change the entire visa allocation system.

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Nothing could be further from the truth.

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One date.

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Nothing more.

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Now, more specifically, we have submitted in our briefs and all along an analysis of Section 1153 of 8 U.S.C.

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1153B3, that is, has the statutory criteria for eligibility for so-called employment-based immigrant visa applicants.

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If you are a foreign national and you want an immigrant visa, you look and see if you can qualify for one of these five categories.

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The one we're talking about is B3.

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And this is commonly called third preference, and it has three subparts.

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It has skilled workers, professionals, and so-called other workers.

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And that statute provides the eligibility criteria.

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How do you qualify for it?

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There's also an allocation number, percentage.

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Normally 140,000 employment-based visas Congress has set aside each year.

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That's the normal number.

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Of course, it changes for various reasons that are not at issue here, but that is a normal number.

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140,000.

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Of that number, this third preference that we're talking about.

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Would anything happen to your case if it turned out there were actually other countries that had different E3 and EW cutoff dates?

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I'm sorry, I don't understand the exact question.

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A lot of your briefing was China's the only one that has this differentiation.

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If that weren't true, would that affect your legal argument?

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How would that affect your legal argument?

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I'm sorry, I don't quite understand the question.

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If it weren't true, if it wasn't just China, if, for example, India had had a differentiation in these cutoff dates in the past, what would happen?

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I'm just trying to figure out.

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You stress it a lot in your briefs.

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I'm trying to figure out how important that is.

[00:05:50] Speaker 07:
Your Honor refers to the substantive date.

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And we do not stand here today and argue about and contend that the substantive dates are wrong.

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No, no, no.

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I'm not talking about substantive dates.

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I understood your position to be that you were challenging their practice of having one cutoff date for the other workers and a different cutoff date for the skilled and professional workers, all of whom are under the EB3 category.

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Is that correct?

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For China, that's correct.

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For China.

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We're talking about China because our client's from China.

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Yes, and that part of your argument was that this only happens to China.

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Only happens to China.

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Okay, and if that weren't true, if it actually happened to other countries, what then?

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Well, if the State Department has a legal justification and a factual justification for doing so, then they can do so.

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We submit they have no legal justification for doing so.

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They have no factual justification for doing so.

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And if the State Department disagrees with our analysis of the statute, then as Your Honor points out, why is it that

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The other 200 countries in the entire world enjoy parity among the three categories.

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India's had different cutoff dates for other workers and the professional skilled workers.

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It's had the same differentiation you complain about in the past.

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It may have had that in the past, and it may have been justified.

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We have to talk about a specific time and date.

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Today, it's not.

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India enjoys the same cutoff date.

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In your position, it has to be exactly the same at all times?

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I'm just trying to understand what

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Because this seems like a very complicated scheme, and so I'm trying to understand how, what your basis for arguing that they are locked into a single uniform cutoff date for EB3.

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No, that's not our argument.

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Our argument is, if you look at the statute, B3,

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Part A. There's Part A and Part B. Part capital A has three different eligibility criteria.

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Skill workers, professionals, and other workers.

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There's an overall for that category, it allows 28.6% of the visas for that category.

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Okay.

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There's no difference.

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between those three eligibility categories and what's the share.

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In theory, other workers could get 100 percent, professionals could get 100 percent, skilled workers could get 100 percent.

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In theory, Congress has not differentiated

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between those three categories.

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And hopefully it's understood here that the cutoff date is very important because the farther back that the cutoff date is set.

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I think we understand how it works in that regard.

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You just said, in theory, it could be that all of these would go to skilled workers.

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That's correct.

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In theory, as in the State Department could do that?

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In theory, the State Department could do that.

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It depends on the priority date and the cutoff date.

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So if in a particular time the only people in line are skilled workers, then they would get the whole share.

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They'd get the whole share.

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Now in practice that's not going to happen because if you have a given priority date,

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whatever it is, you're going to have a share.

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You're going to have a certain share that goes to skilled workers, a certain share that goes to professional workers, and a certain group that qualify under the other workers.

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So... Is your concern here that the numbers are different, or just that they haven't explained why the numbers are different?

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I'm sorry, the cut-off dates are different, or that they haven't explained why the cut-off dates are different?

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Both.

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Both.

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Both.

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So even if they gave an explanation,

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You would say, I don't care what your explanation is.

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As a matter of law, they have to have the same cutoff dates?

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No.

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They haven't given any explanation at all.

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We just said both, so that's what I'm trying to understand.

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Our position is they can't explain it because they're not following the law.

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They're not.

[00:10:04] Speaker 02:
OK, so there is no, the statute mandates a uniform cutoff date within the EB3 categories.

[00:10:11] Speaker 07:
Yes, unless there's one possible exception.

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We all deal with exceptions in the law, which is Part B, Capital B, 1153, B3, Capital A, and Capital B. It says for other workers, there's a worldwide cap.

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The statute says 10,000, but we can agree it's actually 5,000 temporarily.

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Has been for a few years, maybe two or three more years.

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It's still going to be 5,000.

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But that cap applies to the entire world.

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Now, isn't the essence of what has injured your client the fact that that allotment, let's say 5,000, that allotment is distributed by the State Department between all the countries on one basis?

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not based on the number of applicants in that category.

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And the result is that China has a very large number of applicants in that category and a relatively small share under the department's formula means that it can't use a proportionate share of the 5,000.

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Is that correct?

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No, that's not correct.

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As I understand, Your Honor, that's not correct.

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We have material in the record saying that the State Department has allocated 319 of these slots to China, notwithstanding that there are many more people in China applying in this category than in countries that are given

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given an allotment, which they don't fully use.

[00:12:04] Speaker 07:
Well, the 319 would be fiscal year 2013, I believe.

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2014, it's 146.

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But the State Department doesn't start out saying, OK, let's see.

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We're going to pick a certain number that China gets or a certain number that Ireland gets or Sri Lanka gets.

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You start with, in third preference, a share, which is 28.6 percent, which is $40,400 for everybody in the world, and then they determine, okay,

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Do we have enough visas available to satisfy the demand?

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Now, in the case of just two countries now, which is China and India, there's not enough demand or not enough slots.

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There's plenty of demand, but not enough slots.

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They're the biggest countries in the world, greatest population.

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So they have to set a cutoff date.

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That we have no problem with.

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We understand that.

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We don't object to that.

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What we object to is that in the case of China,

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which is the only country in the world which has done this way, the State Department has come up with a cutoff date that's different than the skilled and professional workers cutoff date for just third preference.

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And there's no basis for that.

[00:13:32] Speaker 06:
The time standard is, at least in part, the consequence of the mental operation described at paragraph 14 of the Oppenheim Declaration, in which the China EW limit is reduced to 12.5% of the overall China EB3 limit, and that takes it to 319.

[00:13:57] Speaker 07:
That's not accurate.

[00:14:04] Speaker 06:
It's not an accurate reflection.

[00:14:05] Speaker 06:
It may be immaterial because the district court had its theory for not looking at any of this.

[00:14:10] Speaker 07:
Well, it's not an accurate picture of how it works.

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In other words, Congress, again, has given us the statute, B3A.

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And it doesn't say, OK, among those three categories, there's a certain percentage that we allocate to other workers, skilled workers, and professionals.

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No.

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It says that of all the 140,000 for the whole world, you get 28.6%.

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And then, if there's an oversubscription,

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means there's excess demand, which you have in China and India, and the State Department's got to figure out, okay, where do we set our cutoff date so that the demand doesn't exceed the supply?

[00:14:59] Speaker 02:
Can I ask you, because your time is running out here, I just wanted to ask you a question on your national origin discrimination argument.

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And I'm curious as to what you think 1152A1 Big B

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how that applies to your national origin discrimination argument.

[00:15:19] Speaker 07:
That.

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Which says nothing in, so A is the bar on national origin discrimination, B says nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications.

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Or the locations where such things are processed.

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With respect to locations, we've already held this is a full commitment to agency discretion.

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So I'm wondering why B doesn't vary your national origin discrimination claim.

[00:15:49] Speaker 07:
I don't quite.

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Do you have the statute of money?

[00:15:52] Speaker 07:
11.52.

[00:15:55] Speaker 01:
I don't have it in front of me.

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Capital B. It's attached to the red brief.

[00:15:58] Speaker 07:
OK.

[00:16:00] Speaker 01:
Never mind then.

[00:16:02] Speaker 01:
Never mind.

[00:16:06] Speaker 01:
It's okay, it's all right.

[00:16:10] Speaker 06:
If we have it in the appendix, I have it.

[00:16:14] Speaker 06:
Maybe we should save your answer for a moment.

[00:16:15] Speaker 05:
Save it for rebuttal, that's fine, yeah.

[00:16:18] Speaker 03:
Do you have any questions?

[00:16:20] Speaker 03:
All right.

[00:16:21] Speaker 03:
Mr. Terras, we'll give you a couple of minutes in reply, because you're out of time already.

[00:16:24] Speaker 03:
We'll give you a couple of minutes in reply.

[00:16:26] Speaker 03:
Okay, thank you very much.

[00:16:27] Speaker 03:
Mr. Goldsmith now.

[00:16:29] Speaker 07:
I would appreciate it.

[00:16:39] Speaker 04:
May it please the court, Aaron Goldsmith on behalf of the United States Department of State

[00:16:44] Speaker 04:
This case has been something of a moving target, but the one constant has been plaintiff's contention that the State Department is required to use the same cutoff dates for skilled and unskilled other workers.

[00:16:56] Speaker 02:
Before we get into that, can you answer my question?

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Why did you brief the Lokes?

[00:17:00] Speaker 02:
I didn't see it, and I didn't see it in your brief here, 1152A1B, just with respect to the national origin discrimination argument.

[00:17:09] Speaker 04:
Right, Your Honor.

[00:17:11] Speaker 04:
the State Department is required to consider national origin in terms of the per country limits set forward in 1152B.

[00:17:21] Speaker 04:
So that's the short answer.

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That it's not only is the State Department permitted to consider national origin, it is required by statute to and determine the per country, that's the 7% limit set forward by Congress.

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In terms of, that's why this case has always been about whether or not there was a requirement, in the words of the plaintiff, a clear nondiscretionary duty, and this comes from paragraph 36 of the complaint, to use the same cutoff date for the category and subcategory.

[00:17:57] Speaker 06:
That's plain, ordinary, garden variety, substantive legal argument, right?

[00:18:04] Speaker 06:
But your principle argument for us and for the district court is there's something about this case that makes it not fair.

[00:18:17] Speaker 06:
It looks to me like an absolutely standard case in that regard to the merits.

[00:18:24] Speaker 04:
Well, I think there are two points that the district court picked up on.

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One is that the statute does not require that the State Department use the same cutoff date for skilling.

[00:18:36] Speaker 06:
That's substantive.

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proposition.

[00:18:39] Speaker 06:
You didn't win on that at all.

[00:18:41] Speaker 04:
I believe we did.

[00:18:44] Speaker 04:
I'm sorry, I interrupted you, Your Honor, I apologize.

[00:18:47] Speaker 06:
You went on the Southern Utah theory, right?

[00:18:50] Speaker 04:
Well, there were two basis for the district court's decision, as I read it, and one is

[00:18:56] Speaker 04:
The Southern, the Norton decision, 7061, you can only proceed on discrete agency action.

[00:19:04] Speaker 04:
This isn't a discrete agency action.

[00:19:06] Speaker 04:
And then this report says something to the effect of, moreover, it doesn't look like the statute actually requires these two things.

[00:19:14] Speaker 04:
And that is a pure question of law.

[00:19:16] Speaker 04:
That's why the claim failed.

[00:19:18] Speaker 03:
That's the last paragraph.

[00:19:19] Speaker 03:
Last paragraph.

[00:19:22] Speaker 04:
Not much analysis.

[00:19:23] Speaker 04:
I can see there's not a lot of analysis on that point.

[00:19:28] Speaker 04:
It seems to be a throwaway line, right?

[00:19:34] Speaker 04:
I wouldn't agree that it's a throwaway line.

[00:19:36] Speaker 04:
I would agree that there's very limited analysis.

[00:19:38] Speaker 04:
I would concede that.

[00:19:41] Speaker 04:
So that's basically what we're left with.

[00:19:44] Speaker 02:
Did you fully brief the merits below as well as the Norton point to the district court?

[00:19:48] Speaker 02:
What did you mean?

[00:19:50] Speaker 02:
Did your briefing similarly throw out the point, or did you fully develop?

[00:19:54] Speaker 02:
Because this seems like very complicated stuff to my point.

[00:19:56] Speaker 04:
There were two amounts of briefing in the district court plus supplemental briefing, because while the case was before the district court, the cutoff dates for the category and subcategory merged.

[00:20:07] Speaker 04:
And I had some difficulty, and perhaps this is entirely my fault, in understanding what were the allegations actually being raised in the complaint.

[00:20:15] Speaker 04:
So we filed a motion to dismiss.

[00:20:17] Speaker 04:
They failed to state a claim.

[00:20:19] Speaker 04:
Here are the reasons.

[00:20:20] Speaker 04:
And then in the alternative, we filed a motion for summary judgment, submitted a sworn declaration, explaining how these numbers were arrived at.

[00:20:29] Speaker 04:
Because I thought they were asserting a challenge under 7062, that this was an arbitrary, capricious allocation of the visa numbers in 2013.

[00:20:38] Speaker 04:
But that's, as it turned out, not what they were alleging.

[00:20:41] Speaker 04:
And in any event, that issue is now

[00:20:44] Speaker 04:
The issue that was before the court that was framed by the parties after two rounds of briefing and the supplemental filings were the simple question of is there a requirement to use the same cutoff date for the category and the subcategory.

[00:21:05] Speaker 04:
Respect me.

[00:21:06] Speaker 06:
So that's a sort of standard substantive statutory argument.

[00:21:10] Speaker 04:
Yes, but it's a legal argument.

[00:21:11] Speaker 04:
You don't have to look at the facts.

[00:21:12] Speaker 02:
But that's a traditional APA argument.

[00:21:14] Speaker 02:
You can see that.

[00:21:15] Speaker 04:
Yes, it's an APA argument.

[00:21:18] Speaker 04:
It's a statutory interpretation argument.

[00:21:20] Speaker 04:
It's pure question of law.

[00:21:22] Speaker 06:
So why shouldn't the district court address it?

[00:21:25] Speaker 04:
I'm sorry?

[00:21:26] Speaker 06:
Why shouldn't the district court address it?

[00:21:29] Speaker 04:
Well, we believe that the district court did address it.

[00:21:36] Speaker 04:
Yes.

[00:21:38] Speaker 04:
That is correct.

[00:21:43] Speaker 04:
That that analysis was correct.

[00:21:45] Speaker 04:
It was on point.

[00:21:47] Speaker 04:
There was no requirement by statute to use the two

[00:21:50] Speaker 04:
of the same cutoff dates for those two, the category and the subcategory.

[00:21:55] Speaker 04:
They're not challenging the process.

[00:21:57] Speaker 04:
They're not challenging methodology.

[00:21:58] Speaker 06:
They are challenging the process.

[00:22:00] Speaker 06:
They're saying the process violates 1153E and 1152.

[00:22:07] Speaker 04:
But in their opening brief, they repeatedly say, we're not challenging the process.

[00:22:13] Speaker 04:
There's these references to if there's not a challenge to process.

[00:22:16] Speaker 02:
I don't think which process is what gets very confused.

[00:22:19] Speaker 02:
When they say we're not challenging the process, they mean we're not challenging some global programmatic process as opposed to you set these dates, that's a process too.

[00:22:29] Speaker 02:
And we argue that those dates as set violated statutory text and hurt our client in the process.

[00:22:37] Speaker 02:
And as to that latter process argument,

[00:22:41] Speaker 02:
I think you agree as a traditional APA argument.

[00:22:44] Speaker 04:
I would agree that the argument of whether or not they have to use the same cutoff date as a traditional APA.

[00:22:49] Speaker 02:
And that's a discrete action that can be challenged under the APA.

[00:22:52] Speaker 04:
I don't agree that it's a discrete action.

[00:22:54] Speaker 04:
I think the district court got it correct in saying

[00:22:58] Speaker 04:
under the APA, you can only challenge discrete agency actions.

[00:23:01] Speaker 04:
And this is... What makes it a non-discrete action?

[00:23:04] Speaker 06:
In other words, at some point, somebody in the State Department makes a decision about how to apply these various statutes and quotas and ceilings and so forth, and presumably looks at the statutes and reads them a particular way.

[00:23:22] Speaker 06:
And then the resulting numbers go out to the consular agents, I guess, in each country to work them out.

[00:23:39] Speaker 06:
Why isn't that just a discrete decision, I guess done monthly, which has certain consequences?

[00:23:47] Speaker 06:
Well, adverse to machine.

[00:23:49] Speaker 04:
Because it's not like a challenge to a particular permit, application, petition, license.

[00:23:53] Speaker 06:
Yeah, we have an awful lot of things that aren't just a challenge to a single permit.

[00:23:59] Speaker 04:
That is correct.

[00:24:01] Speaker 02:
But... You don't get this government benefit.

[00:24:04] Speaker 02:
Isn't that essentially what the visa bulletin says each month?

[00:24:07] Speaker 02:
You don't get this government benefit.

[00:24:10] Speaker 04:
At this time.

[00:24:11] Speaker 04:
Right.

[00:24:12] Speaker 04:
But it's not a decision on the actual decision.

[00:24:15] Speaker 02:
If the Social Security Administration says you don't get this benefit at this time, you don't think someone could challenge that under the APA?

[00:24:22] Speaker 04:
We would concede you could challenge, if an agency says your application for adjustment of status, if USCIS says your application for adjustment of status is denied, that is something that can generally be challenged under the APA.

[00:24:35] Speaker 04:
But this seems to be more tied to

[00:24:39] Speaker 04:
the visa bulletins and the process by which they arrive at these estimates, these reasonable estimates contemplated by 1153G as to what the demand is for these different categories.

[00:24:51] Speaker 04:
And we don't think that's a discrete agency action.

[00:24:54] Speaker 04:
And we don't think that the actual focus of the argument in the district court, the whole thrust of it was on whether or not there was a requirement, a legal requirement to use the same cutoff dates.

[00:25:04] Speaker 04:
And I would add that on page six of the opening brief, plaintiff says that they

[00:25:09] Speaker 04:
She does not at this time challenge any particular dates DOS assigns to immigration categories and allocating immigrant visa numbers, only that the China dates assigned should under present circumstances be identical for the sub-categories.

[00:25:25] Speaker 04:
And that's part of the problem.

[00:25:27] Speaker 04:
There's no challenge here, any particular dates.

[00:25:29] Speaker 04:
There's no allegation that their additional visa numbers should have been allocated to a particular category.

[00:25:35] Speaker 02:
The challenge is that you have

[00:25:37] Speaker 02:
come up with two different dates and that violates a command of same dates under the statute.

[00:25:42] Speaker 02:
That's their argument.

[00:25:43] Speaker 02:
Right or wrong, that's their argument.

[00:25:46] Speaker 02:
You come up with different dates, statute requires same date.

[00:25:49] Speaker 02:
As to this particular subcategory, it's hard to think of anything more discreet than that.

[00:25:53] Speaker 04:
I would say that argument fails as a matter of law.

[00:25:55] Speaker 04:
It doesn't need to be remanded back to the district court because this court can simply look at the statute and determine on its face, is that required?

[00:26:03] Speaker 06:
Is there a clear command that the Department of State... It turns out there are a lot of steps in the process.

[00:26:12] Speaker 06:
A lot of this case is very unclear to me.

[00:26:14] Speaker 06:
But one thing that is clear is that working through those steps is extremely complicated and has never been explained in a satisfactory way by plaintiff or defendant.

[00:26:28] Speaker 06:
And it's hard for me to see how the case could be resolved without that step-by-step process going forward.

[00:26:39] Speaker 04:
I see my time has expired.

[00:26:40] Speaker 04:
May I have a few seconds to respond?

[00:26:41] Speaker 03:
Yes.

[00:26:42] Speaker 03:
And you might add the district court to that as well.

[00:26:46] Speaker 04:
Your Honor, we sought to respond to the arguments as they were raised and try to explain things to the best of our ability.

[00:26:53] Speaker 06:
I mean, that's absolutely crazy.

[00:26:55] Speaker 06:
Because I just, at page six of your brief, you have this remarkable statement.

[00:27:01] Speaker 06:
On appeal, she's not challenging a particular cutoff date, that's right, or claiming the cutoff dates were established in a discriminatory manner.

[00:27:08] Speaker 06:
She is claiming they were established in a manner that discriminates in violation of the statute.

[00:27:14] Speaker 06:
And she relies very heavily on 1153E, which is nowhere recited throughout her brief and nowhere in your brief.

[00:27:24] Speaker 06:
But Your Honor, I mean, you arrive at your conclusion just by ignoring the claims made.

[00:27:30] Speaker 04:
Well, Your Honor, to the extent there is any deficiencies with the briefing, I take full responsibility and apologize to court.

[00:27:39] Speaker 04:
I sought to understand what they were, it was a little bit unclear as to what the claims were actually being raised.

[00:27:47] Speaker 04:
But the thrust of it seemed to be this argument that there had to be the same cutoff dates.

[00:27:52] Speaker 04:
And that was a requirement by statute.

[00:27:54] Speaker 04:
And that's not what the statute says.

[00:27:56] Speaker 04:
And for that reason, it's a question of law in this court.

[00:27:59] Speaker 02:
Can I ask a quick question?

[00:28:01] Speaker 02:
On 1153E3, it says waiting lists of applications, applicants for visas, shall be maintained in accordance with regulations prescribed by the Secretary of State.

[00:28:12] Speaker 02:
Are there any such regulations?

[00:28:14] Speaker 04:
Your Honor, I don't have the answer to that question.

[00:28:17] Speaker 04:
Okay.

[00:28:17] Speaker 04:
I don't believe so, but I don't have the answer.

[00:28:19] Speaker 02:
Are there any regulations anywhere that explain any of this process, or is it just... There are some regulations.

[00:28:24] Speaker 02:
...that explain this process, how the dates are set or how the waiting lists are maintained or how the reasonable estimates are made?

[00:28:29] Speaker 04:
Not how the estimates are made.

[00:28:31] Speaker 02:
Okay.

[00:28:31] Speaker 02:
Or the waiting lists, as far as you know.

[00:28:34] Speaker 04:
As far as I know.

[00:28:35] Speaker 04:
Okay.

[00:28:35] Speaker 04:
Thank you, Your Honor.

[00:28:35] Speaker 03:
Thanks.

[00:28:37] Speaker 03:
All right.

[00:28:39] Speaker 03:
Does Mr. Terris have any time?

[00:28:41] Speaker 03:
All right.

[00:28:41] Speaker 03:
Why don't you take two minutes?

[00:28:43] Speaker 07:
Yes.

[00:28:43] Speaker 07:
Thank you very much.

[00:28:45] Speaker 07:
Perhaps I can address the China discrimination claim for just a moment.

[00:28:50] Speaker 07:
Our basic claim is this, that out of all the countries in the world, only China has been singled out for the disparate treatment in terms of the cutoff date disparity between skilled workers, professional workers and other workers.

[00:29:07] Speaker 07:
Only reason that our client, Ms.

[00:29:09] Speaker 07:
Xi, is suffering the way she's suffering over in China right now, waiting for this process, is because she was born in China.

[00:29:17] Speaker 07:
The State Department has singled out China, so under the circumstances of this case, if you're born in China,

[00:29:25] Speaker 07:
you get put into this extra suffering, shall we say.

[00:29:29] Speaker 07:
But that's the basic argument we have on discrimination.

[00:29:33] Speaker 07:
Now, if we can also address for just a moment, which is all we have, the process is indeed complicated overall.

[00:29:41] Speaker 07:
And Mr. Oftentimes that Judge Williams is referred to is the best expert in the world.

[00:29:48] Speaker 07:
There's no better expert than him.

[00:29:51] Speaker 07:
All we're talking about again is this one date, and why is it different?

[00:29:55] Speaker 07:
And we say that that explanation is not all that difficult.

[00:30:00] Speaker 07:
But no matter whether it's difficult, complicated, or not,

[00:30:04] Speaker 07:
What we really want here is our day in court.

[00:30:06] Speaker 07:
Let us go back to the district court and work through it.

[00:30:09] Speaker 02:
Yes, I'm sorry.

[00:30:09] Speaker 02:
You said that she's been waiting a long time, which raised a question in my mind.

[00:30:15] Speaker 02:
This all depends on an employer certifying that they have a need for this particular employee and can't meet that need by using US workers.

[00:30:25] Speaker 02:
That's great.

[00:30:25] Speaker 02:
Eight years have now gone by since that certification.

[00:30:29] Speaker 02:
Is there an employer that's really been waiting eight years for just her, or is there any update on whether there is still even a basis on which she could get a visa?

[00:30:41] Speaker 02:
Practically speaking, I know she's got her number, but practically speaking, eight years goes by.

[00:30:45] Speaker 02:
I can't imagine the employer still hasn't filled the spot in the interim.

[00:30:49] Speaker 07:
Well, yes, the employer is still willing to sponsor Missy.

[00:30:52] Speaker 07:
That's a valid question.

[00:30:54] Speaker 07:
And at the end of the process, we have to prove to the State Department, it's a reasonable requirement, that the employer still needs this person.

[00:31:04] Speaker 07:
But this employer happened to answer your question, Your Honor.

[00:31:06] Speaker 07:
This employer is located in a relatively rural North Carolina area.

[00:31:11] Speaker 07:
And it's hard to find Americans willing to do this work, which is working in a chicken processing factory.

[00:31:17] Speaker 07:
And they have an ongoing need and ongoing openings that persist year after year after year after year.

[00:31:26] Speaker 07:
Although this particular case actually might, I might have misspoken.

[00:31:31] Speaker 07:
There's another plant in rural Ohio, but anyway, it's a rural area in the United States.

[00:31:35] Speaker 07:
And they have an ongoing need.

[00:31:36] Speaker 07:
It's just hard to find Americans to

[00:31:40] Speaker 07:
do this work, which is not considered high status or pleasant.

[00:31:45] Speaker 07:
So they do have ongoing openings.

[00:31:53] Speaker 02:
Thank you.

[00:31:54] Speaker 02:
Thank you.

[00:31:54] Speaker 07:
All we ask for again, please give us our day in court and let us work through this before the district court.

[00:31:59] Speaker 07:
Thank you.