Circuit Split on Rights of I-140 Petition Beneficiaries in Green Card Portability Cases Continues: Second Circuit | Practical Law

Circuit Split on Rights of I-140 Petition Beneficiaries in Green Card Portability Cases Continues: Second Circuit | Practical Law

In Mantena v. Johnson, the US Court of Appeals for the Second Circuit held that the Immigration and Nationality Act's (INA) green card portability provisions give I-140 beneficiaries standing to challenge revocation of an I-140 petition filed by the beneficiary's former employer, and that courts have subject matter jurisdiction to hear cases about United States Citizenship and Immigration Services (USCIS) procedures. The Second Circuit's decision furthers an existing circuit court split on this issue.

Circuit Split on Rights of I-140 Petition Beneficiaries in Green Card Portability Cases Continues: Second Circuit

by Practical Law Labor & Employment
Published on 11 Jan 2016 • USA (National/Federal)
In Mantena v. Johnson, the US Court of Appeals for the Second Circuit held that the Immigration and Nationality Act's (INA) green card portability provisions give I-140 beneficiaries standing to challenge revocation of an I-140 petition filed by the beneficiary's former employer, and that courts have subject matter jurisdiction to hear cases about United States Citizenship and Immigration Services (USCIS) procedures. The Second Circuit's decision furthers an existing circuit court split on this issue.
On December 30, 2015, in Mantena v. Johnson, the US Court of Appeals for the Second Circuit held that:
  • Courts have subject matter jurisdiction to hear cases about United States Citizenship and Immigration Services (USCIS) procedures.
  • The INA's green card portability provisions:
    • give standing to an employment-based immigrant visa petition (Form I-140) beneficiary to challenge revocation of an I-140 petition filed by the beneficiary's former employer; and
    • require that I-140 petition beneficiaries or their successor employers receive notice prior to an I-140 petition being revoked.
The court reversed the district court's dismissal of the beneficiary's notice and due process claims. The Second Circuit's decision joins an Eleventh Circuit decision on the subject matter jurisdiction issue and furthers an existing circuit court split. ( (2d Cir. Dec. 30, 2015).)

Background

In 2007, Ganga Mantena, an immigrant from India working for Vision Systems Group, Inc. (VSG) on an H-1B visa, filed an I-485 application for adjustment to permanent residency (green card) status. VSG's immigrant visa petition (Form I-140) on Mantena's behalf was filed and approved in 2006. In 2009, after her I-485 application remained unadjudicated, Mantena took advantage of the INA's portability provisions and changed employers doing the same type of work she had done at VSG. She notified USCIS of the change and included a letter from her successor employer, CNC Consulting, Inc., requesting that it be substituted as Mantena's employer of record.
In June 2012, after VSG's President pled guilty to fraud in connection with another employee's immigration petition, USCIS sent VSG a notice to revoke Mantena's I-140 petition and gave VSG 30 days to respond. Mantena did not receive USCIS's revocation notice and VSG did not inform her about it or take any action in response to USCIS's notice. In October 2012, USCIS revoked Mantena's I-140 petition based on VSG's fraud, and a month later denied her I-485 application because she was no longer the beneficiary of an approved I-140 petition, which is required for a successful I-485 application.
After USCIS denied Mantena's motion to have the I-485 denial reopened, Mantena filed suit in US district court challenging USCIS's revocation of her I-140 petition and denial of her I-485 application. The district court dismissed Mantena's complaint for lack of subject matter jurisdiction. Mantena appealed.

Outcome

The Second Circuit vacated the district court's dismissal of Mantena's complaint and remanded, holding that:
  • Courts have subject matter jurisdiction over claims regarding whether USCIS complied with its statutory and regulatory procedural requirements.
  • INA's green card portability provisions:
    • gave standing to Mantena to challenge USCIS's revocation of her former employer's I-140 petition; and
    • require that USCIS provide notice to I-140 petition beneficiaries like Mantena or their successor employers prior to an I-140 petition being revoked.
The Second Circuit noted that:
  • The INA's green card portability provisions contained in the American Competitiveness in the 21st Century Act of 2000 (AC-21) allow I-485 adjustment of status applicants to change jobs and have the I-140 petition filed by their initial employer remain valid if the applicant's:
    • I-485 application remains unadjudicated for 180 days; and
    • new job is the same or in a similar occupational classification as the prior job.
(INA § 204(j) (8 U.S.C. § 1154(j)); AC-21 § 106(c)(1).)
  • The INA strips district courts of subject matter jurisdiction over certain types of substantive discretionary immigration decisions made by the Department of Homeland Security (DHS), including when the DHS revokes the approval of an I-140 petition (INA §§ 205 and 242(a)(2)(B)(ii) (8 U.S.C. §§ 1155 and 1252(a)(2)(B)(ii))).
  • The Eleventh Circuit held that USCIS's failure to follow the correct procedures in revoking an I-140 petition is not within USCIS's discretion and is subject to judicial review (Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255, 1262 (11th Cir. 2014)).
  • In contrast, the Eighth Circuit held that a district court does not have jurisdiction over whether USCIS failed to comply with regulatory procedural requirements prior to it revoking an I-140 beneficiary's petition (Rajasekaran v. Hazuda, 806 F.3d 1142, 1145 (8th Cir. 2015)).
  • The Second Circuit previously held that compliance with regulations establishing procedural requirements was not within the US Attorney General's discretion (when immigration benefits were handled by the legacy Immigration and Naturalization Service, which resided in the Department of Justice) and that the INA's jurisdiction‐stripping provision did not apply (Sharkey v. Quarantillo, 541 F.3d 75, 86 (2d Cir. 2008)).
  • The Second Circuit previously pointed out in dicta that the DHS might not have complete discretion on decision-related procedure, only on the substantive decision itself (Firstland Intʹl, Inc. v. U.S. I.N.S., 377 F.3d 127, 131 (2d Cir. 2004)).
The Second Circuit found that:
  • Based on the reasoning in Rajasekaran and Firstland, the district court had subject matter jurisdiction over whether USCIS complied with its procedural requirements (including providing notice to Mantena as required by the applicable regulation (8 C.F.R. § 205.2(b)) prior to:
    • revoking the I‐140 petition that VSG filed for Mantena; and
    • denying Mantena's I-485 application.
  • Mantena had standing to challenge USCIS's revocation of the I-140 petition because:
    • USCIS's position that Mantena was not an "affected party" in the I-140 petition revocation relied on a regulation (8 C.F.R. § 103.3(a)(1)(iii)(B)) that preceded the enactment of the AC-21's green card portability provisions; and
    • even if Mantena was not an affected party in the petition revocation, she suffered a concrete injury and satisfied the other standing requirements necessary to bring her lawsuit in federal court, including falling within the zone-of-interests protected by the INA.
The Second Circuit also found that:
  • USCIS was required to provide notice to Mantena or her subsequent employer, under the statutory scheme created by AC-21's green card portability provisions.
  • USCIS acted inconsistently with AC-21's portability provisions because:
    • prior to the portability provisions, there was only one employer involved, and a new I-140 petition needed to be filed if a petition beneficiary changed jobs. Since the petition beneficiary remained tied to the employer that filed the I-140, notice to that employer was sufficient;
    • the portability provisions were intended to encourage job flexibility and help employers attract skilled foreign workers by relying on and adopting a prior employer's petition filings;
    • notice to VSG precluded Mantena from receiving notification until it was too late to avoid having the I-140 petition revoked and her I-485 application denied;
    • limiting the notice to the original employer prevents the new employer from asserting its interest and therefore contradicts the purpose of the portability provisions; and
    • The Second Circuit remanded to the district court to decide whether the petition beneficiary (Mantena) or the successor employer (CNC) was the party entitled to notice from USCIS about the I-140 revocation.

Practical Implications

The Second Circuit's decision in Mantena joins the Eleventh Circuit in holding that courts have subject matter jurisdiction to decide whether USCIS complied with its statutory and regulatory procedural requirements, including whether it failed to comply with procedural requirements prior to revoking an I-140 beneficiary's petition. Because the Eighth Circuit has held otherwise, a circuit court split remains on this issue. It remains to be seen whether the US Supreme Court will step in to resolve it. Recently proposed USCIS regulations on AC-21 touch on but do not resolve the situation at issue in these cases (see Legal Update, USCIS Proposed Rule Impacts Employment-Based Immigrant and Nonimmigrant Visa Categories).
Update: On January 29, 2016, the Eighth Circuit issued a revised opinion in Rajasekaran and vacated its original decision ( (8th Cir. Jan. 29, 2016)). The revised opinion reaches the same conclusion as the original opinion, that the court does not have subject matter jurisdiction over the claim. The court did, however, include additional support for its holding, finding it agency rules that benefit the agency rather than conferring benefits on individuals are not reviewable. This revised decision solidifies the split between the Mantena court and the Rajasekaran court.