I-140 Visa Petition Beneficiary Has Standing to Challenge Revocation of That Petition: Eleventh Circuit

Practical Law Legal Update 6-582-5786 (Approx. 6 pages)

I-140 Visa Petition Beneficiary Has Standing to Challenge Revocation of That Petition: Eleventh Circuit

by Practical Law Labor & Employment

Background

Sunil Kurapati was employed by Worldwide Web Services, Inc. (Worldwide). Worldwide completed the first two steps required under the Immigration and Nationality Act (INA) to permanently employ Kurapati, obtaining approval of both:

A permanent labor certification application from the DOL.
Two I-140 visa petitions from the USCIS.

In August 2007, Kurapati and his wife, Bharathi Mallidi submitted I-485 applications for adjustment of status based on Worldwide's approved I-140 petition. In April 2009, Kurapati notified USCIS of his intent to change employers under INA § 204(j) (8 U.S.C. § 1154(j)) (the portability provision). In July 2012, while the I-485 applications were still pending, USCIS issued NOIRs to Worldwide on its I-140 visa petitions for Kurapati, based on an alleged misstatement of a material fact in the petitions. Kurapati responded to the NOIRs in August 2012. Worldwide did not file a response because by this time it had ceased to exist.

USCIS revoked the I-140 visa petitions on September 12, 2012, stating that Worldwide had the right to appeal the revocation. On September 27, 2012, Kurapati filed appeals with the USCIS's Administrative Appeals Office (AAO). Worldwide was not involved in Kurapati's appeal and failed to appeal the revocations directly. Therefore, on October 20, 2012, USCIS denied Kurapati's pending I-485 application for adjustment of status because of the lack of a valid approved I-140 petition. Mallidi's application was also denied, because of her dependency on Kurapati's application.

On January 8, 2013, while the AAO appeal was pending, Kurapati and Mallidi filed a complaint in the district court. After the complaint was filed:

The AAO rejected Kurapati's appeals, stating that Kurapati lacked standing under 8 C.F.R. § 103.3(a)(1)(iii)(B). The AAO issued its rejection to Worldwide only.
USCIS moved to dismiss Kurapati's complaint under Federal Rule of Civil Procedure 12(b)(1) and (6), alleging that:
- Kurapati lacked both Article III standing and prudential standing; and
- the district court did not have subject matter jurisdiction because the decision to revoke the I-140 visa petitions fell within USCIS's discretion (INA § 242(a)(2)(B)(ii) (8 U.S.C. § 1252(a)(2)(B)(ii))).
The district court granted USCIS's motion on June 10, 2013, concluding that:
- the regulation governing administrative standing (8 C.F.R. § 103.3(a)(1)(iii)(B)) precluded constitutional standing because it specifically excludes petition beneficiaries in its definition of parties with standing to challenge visa petition revocations; and
- Kurapati did not have standing in the district court because he did not have standing to challenge the revocation administratively.

Kurapati and Mallidi appealed to the Eleventh Circuit:

Challenging the district court's conclusion that they lacked standing to bring their claims because Kurapati was a beneficiary, and not the petitioner, of an I-140 visa petition.
Arguing that the district court erred as a matter of law in concluding that the discretionary decision bar of INA § 242(a)(2)(B)(ii) (8 U.S.C. § 1252(a)(2)(B)(ii)) deprived the court of jurisdiction because they were raising the question of law of whether the USCIS adhered to its pre-revocation notice regulations.

Outcome

The Eleventh Circuit vacated the district court's grant of the motion to dismiss and remanded for further proceedings, holding that an I-140 visa petition beneficiary has sufficient interest in the outcome of a previously approved I-140 petition filed on his behalf by a former employer that USCIS, if it wishes to issue a NOIR for the I-140 visa petition, should:

Issue the NOIR to the beneficiary of the I-140 petition.
Give that beneficiary the opportunity to respond to the NOIR.

The Eleventh Circuit noted that:

It has yet to consider in a published opinion whether the beneficiary of an I-140 visa petition has standing to challenge the revocation of a previously approved I-140 visa petition.
Regulations pertaining to appeals from a denial of a petition explicitly exclude the beneficiary of a visa petition from the definition of those who have standing to bring an appeal (8 C.F.R. § 103.3(a)(1)(iii)(B)).
To establish constitutional standing, the plaintiff must have an injury-in-fact that:
- is fairly traceable to the challenged conduct of the defendant; and
- can likely be redressed with a favorable decision.
(Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
The district court erred in dismissing Kurapati and Mallidi's complaint for lack of constitutional standing because:
- the regulatory definition of "affected party" does not preclude the beneficiary from having standing in district court. The definition relates to who has the ability to challenge the administrative denial of a petition. It is therefore not a binding statement of constitutional standing;
- under the Lujan test for constitutional standing, Kurapati and Mallidi suffered an "injury-in-fact" from USCIS's revocation of the I-140 visa petitions. This injury-in-fact is the deprivation of an opportunity to apply for adjustment of status, which is fairly traceable to USCIS and would be redressable by a favorable decision (Lujan, 504 U.S. at 560-61);
- USCIS's revocation of the I-140 visa petitions resulted in the automatic denial of Kurapati's and Mallidi's adjustment of status applications (INA § 245(a) (8 U.S.C. § 1255(a))); and
- if the district court was to conclude that the I-140 visa petition was unlawfully revoked because USCIS failed to comply with the regulations, Kurapati and Mallidi would have the opportunity to challenge the denial of their petitions. Therefore a favorable decision would redress the injury. (Patel v. U.S. Citizenship and Immigration Services, 732 F.3d 633, at 638 (6th Cir.2013).)
An I-140 visa petition beneficiary who has applied for adjustment of status and has attempted to change employers under the portability provision (INA § 204(j) (8 U.S.C. § 1154(j))) is authorized to challenge the denial of that I-140 petition. The statutory framework makes clear that such immigrant beneficiaries (including Kurapati) fall within the zone of interests it regulates or protects because:
- once the I-140 petition is approved, the immigrant receives the visa and applies for adjustment of status (INA §§ 203(b)(3) and 245(a) (8 U.S.C. §§ 1153(b)(3) and 1255(a))); and
- the portability provision supports the conclusion that the immigrant's interests are within the statute's zone of interests, as the petitioning employer derives no benefit from the employee's ability to move the I-140 petition to another employer (Patel, 732 F.3d at 636).
The district court erred in dismissing Kurapati and Mallidi's complaint for lack of subject matter jurisdiction under Section 1252(a)(2)(B)(ii) because the complaint raises a question of law. Kurapati and Mallidi are not directly challenging the revocation of Worldwide's I-140 visa petitions filed on his behalf. Instead, they are arguing that in light of the portability provision, the regulations should be construed to require that beneficiaries of I-140 visa petitions are served with the NOIR and given the opportunity to be heard prior to USCIS deciding to revoke and therefore USCIS's failure to do so was in error. USCIS's argument that the regulations do not require notice and an opportunity to be heard goes to the merits of Kurapati and Mallidi's claim, not to whether they are raising a question of law that the district court has jurisdiction over.

Practical Implications

This case is relevant to both employers that may receive such notices because they sponsored workers for I-140 petitions and the employees have subsequently moved to other employers under the portability provisions, and employers that hire workers under the portability provisions. Employers should be aware that employees who are the beneficiaries of approved I-140 petitions may have the right to respond to USCIS notices received after the I-140 petitions' approval. Employers should track notices received from USCIS and should contact petition beneficiaries as appropriate. Sponsored foreign workers who are I-140 petition beneficiaries should give USCIS notice of any job changes under the portability provision and should provide current contact information to USCIS, their former employers and their current or former counsel to ensure they receive any communication related to their immigration matters.

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