H-1B Case Study: The Persistent Liquor Store and the Kazakh Candidate

By David North on July 23, 2012

A recent U.S. district court case — one of the rare ones slapping down a would-be H-1B employer — reminded me that all of the users of that program are not massive corporations or Indian body shops.

In fact, the case involved a not-very-profitable liquor store in a Twin Cities suburbs that wanted to hire an H-1B as an "Operations and Finance Analyst" on a part-time, $22-an-hour basis. That's a very modest wage offer in this program, and from an unusual type of employer.

Those facts intrigued me, and as I poked into it I found a couple of other odd angles.

First, the federal courts' files at PACER, the electronic data system, showed that none of the filings in the case, except the judge's orders, were open to the public. (For PACER users it is case 0:11-cv-00402-JJK, with the judgment being document 35).

Then, the judge, in his decision, noted that he was reviewing an earlier ruling of the USCIS appellate body, the Administrative Appeals Office (AAO), dated November 1, 2011, but that decision cannot be found in the AAO's often-scrambled electronic files.

The judge's order did identify the employer, Palace Wine and Spirits, Inc., which is located in Apple Valley, Minn., just south of Minneapolis. It's a suburb with a population of about 50,000. He also noted that it had sales of $2,780,000 a year, 17 employees, and a profit of $16,635 in 2009.

The profit level was intriguing to me, as was the near-shutdown of official information, so I decided to see what the Internet had to offer.

First, I sought information on the usual profit level of liquor stores in that state. It turns out there is a mountain of data on that subject, and Palace was not doing very well compared to its competitors, many of which are owned by municipalities.

According to one of the state's newspapers, the Elk River Star News, the two city liquor stores in that city (with half the population of Apple Valley) ran a collective profit of $730,091, or $365,000 each, in 2010, an above-average profit for the state. In the same article there was information on the average profits of such stores, saying "the average net profit of municipal liquor operations was $204,124 in the metro area and $68,376 in Greater Minnesota."

I guess that last phrase deals with the state as a whole.

So why did this not-very-profitable private-sector liquor store go to the triple expense of filing an H-1B application, hiring a lawyer to appeal to AAO, and then, after losing at both the staff and AAO levels, go to the additional trouble of hiring counsel to take the case into U.S. District Court?

All so that the store could hire a part-time employee, who was, according to the decision, named Olena Protashchuk?

The judge, incidentally, agreed with USCIS and AAO that the position of "Financial and Operations Analyst" did not qualify as a specialty occupation under the law and thus there should be no H-1B visa. The employer had said that the minimum requirement for this job was "a bachelor's degree in management". USCIS said that the "duties to be performed by the beneficiary" would not require such a degree and denied the petition.

But why the persistence on the part of the employer?

Other than the court decision, there is nothing on the web about Olena Protashchuk, an unusual name, but there was a Facebook page about a Lena Protashchuk, which has been withdrawn in the last couple of weeks. Olena has, according to the former Facebook entry, a master's in management from St. Mary's University of Minnesota. She also has a bachelor's in International Management from the National Agricultural University of Ukraine, class of 2004, and she graduated from Gymnasium Number 5 in Astana, Kazakhstan in 2000. The master's degree, which is not mentioned in the decision, might well have been awarded after the employer filed the application, presumably sometime in 2010.

Maybe Olena is Lena, and maybe she is one of the three attractive young women pictured in the now redacted Facebook page. Maybe Olena/Lena could have boosted the sagging profits of the liquor store in Apple Valley. Maybe she left the country after losing the decision, or maybe she continues to live in Minnesota, at an address available on another Internet listing.

I guess we will never know.

Note: For a more lawyerly take on District Court Judge Donovan W. Frank's decision, drawn solely from that decision, see the article on p. 1154 of the June 11 issue of Interpreter Releases, the immigration bar's trade paper; it is not available online.