GANGA MANTENA v. JEH JOHNSON, Sеcretary, U.S. Department of Homeland Security; LEON RODRIGUEZ, Director, U.S. Citizenship and Immigration Services; MARK J. HAZUDA, Director of the Nebraska Service Center, U.S. Citizenship and Immigration Services
14-2476-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
December 30, 2015
August Term, 2015; (Argued: August 18, 2015)
Before: CALABRESI, STRAUB, and POOLER, Circuit Judges.
Appeal from the judgment of the United States District Court for the Southern District of New York (Schofield, J.), a) dismissing, for lack of subject matter jurisdiction, Plaintiff-Appellant Ganga Mantena‘s statutory and regulatory procedural claims against the government and b) granting judgment on the pleadings on related constitutional claims. The relevant claims before us pertain to the asserted lack of adequate notice before the revocation of her original employer‘s immigrant visa petition (I-140).
Mantena had availed herself of the Immigration and Nationality Act‘s so-called “portability” provisions,
We vacate the judgment of the district court and hold that it possessed subject matter jurisdiction to consider Mantena‘s dismissed notice claims. We also conclude that Congress‘s alteration of the statutory scheme governing the pursuit of permanent residency by employer-sponsored immigrants, through the passage of the portability provisions, requires that pre-revocation notice be given either to the beneficiary or to the successor employer even though they were not the original petitioning parties. And we remаnd for further proceedings consistent with this opinion.
Joseph C. Hohenstein, Law Office of Joseph Hohenstein, Philadelphia, PA, for Plaintiff-Appellant
Christopher Connolly, Benjamin H. Torrance, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, NY, for Defendants-Appellees.
Leslie K. Dellon (Mary Kenney, on the brief), American Immigration Council, Washington, DC; (Russell R. Abrutyn, on the brief), American Immigration Lawyers Association, Troy, MI; (Ilana Etkin Greenstein, on the brief), Macias, Greenstein & Kaplan, East Boston, MA; for Amici Curiae American Immigration Council and American Immigration Lawyers Association, in support of Plaintiff–Appellant.
GUIDO CALABRESI, Circuit Judge:
Shortly after her arrival, Mantena‘s original petitioning employer filed an alien labor certification for Mantena with the Department of Labor, followed by an I-140 “Immigrant Petition for Alien Worker” with the United States Citizenship and
Understandably, Mantena remained sanguine about her adjustment process. It turned out, however, that there were serious problems in the visa petition, filed by the employer for whom she no longer worked, that underlay the green card application. This employer pleaded guilty to mail fraud in connection with an immigration petition filed on behalf of a different employee. USCIS subsequently decided to initiate the revocation of all petitions filed by the employer, asserting that all such petitions might be fraudulent. But neither Mantena nor her new employer was informed of any of this.
By the time Mantena heard of her original employer‘s immigrant petition revocation, her green card application had been automatically denied. Indeed, it was this denial that purportedly gave her notice of the I-140 revocation. Multiple appeals and legal challenges later, her case is now before us.
Mantena‘s case illustrates the importance of notifying affected parties of material changes in their proceedings and statuses and of giving them an opportunity to respond. This is true for any legal proceeding, but is a particular and continuing concern for immigrants throughout the multistep administrative process. The questions before us are, however, whether such notification is required by law and, if it is, where jurisdiction lies and who has standing to enforce that requirement.
The district court dismissed Mantena‘s statutory and regulatory notice claims on jurisdictional grounds. It dismissed her constitutional due process claim for failure to identify a protected interest. We disagree with respect to jurisdiction over these claims and we envision no problems regarding Mantena‘s standing to bring her claims. We also conclude that timely notice, the lack of which occurred because of unintended cracks between new congressional legislation and old regulations, is required by the amended statutory scheme. Accordingly, we decline to address the constitutional claim. We remand for supplemental briefing to establish more precisely which parties, in addition to the original petitioner of the immigrant visa, are entitled to notice pertaining to a visa petition‘s revocation.
BACKGROUND
Statutory Scheme
The
This final step cannot take place until a permanent residency visa is available for the immigrant.
Originally, the alien labor certification and I-140 petition were only valid while the applicant worked for the employer that had petitioned for and obtained both forms. The American Competitiveness in the 21st Century Act of 2000 (AC-21), Pub. L. 106-313, 114 Stat. 1251, however, created more flexibility for prospective immigrants. It included, among other provisions, “portability” provisions that state that if an individual‘s application for adjustment of status has remained unadjudicated for 180 days, the immigrant visa petition on her behalf will remain valid if she changes jobs or employers, so long as the job is in the same or a similar occupational classification as her original job.
In essence, Congress‘s amendment of the
Facts
Plaintiff Ganga Mantena is a citizen of India who first entered the United States in 2000 on an H1-B visa petition filed by an initial employer. In 2003, she left that initial employer and joined Vision Systems Group, Inc. (VSG), which obtained a new H1-B visa on Mantena‘s behalf and agreed to sponsor her for a green card.
VSG obtained an alien labor certification for Mantena in early 2006 and its petition on her behalf was also approved later that year. In July 2007, Mantena filed an I-485 application for adjustment of status to permanent residency. Because of the large number of employment-based permanent residency visa petitions for immigrants from India, her application was not
At the end of 2009, two years after filing her I-485, Mantena availed herself of the AC-21 “portability” provisions. There is no dispute that, at the time, Mantena met both statutory criteria for portability. She had an unadjudicated I-485 for the required amount of time, and her new job paralleled her old job. Mantena sent a letter to USCIS notifying the agency of her change in employment and requesting a continuation of her I-485 processing. She also included a letter from her successor employer, CNC Consulting, Inc., entitled “Request to Substitute Successor Employer Pursuant to Section 106(c) of AC-21.” This letter documented that Mantena‘s position with CNC was similar to her position with VSG and that her I-485 had been pending for more than 180 days.
The Fraud
Nearly a year after Mantena left VSG for her new job, the president of VSG pleaded guilty to mail fraud in connection with an immigration petition filed on behalf of a different VSG employee. As a consequence, USCIS, believing that all VSG‘s petitions “may be fraudulent,” initiated the revocation of all petitions filed by VSG and its associated entities.3 App. 119.
On June 28, 2012, USCIS sent a Notice of Intent to Revoke (NOIR) Mantena‘s I-140 petition to VSG. The notice stated that “VSG‘s admission to fraud cast doubt on the reliability of information” contained in VSG‘s filings. USCIS gave VSG thirty days in which to submit evidence in support of the I-140 petition and in opposition to the revocation.
The NOIR was sent only to VSG, which Mantena alleges was no longer in business at the time. In any event, the company neither responded nor informed Mantena of the NOIR. And, on October 19, 2012, USCIS revoked Mantena‘s I-140 petition. Mantena, who by this point had not worked for VSG for three years, was given no notice of the revocation.
Because the approval of the I-140 petition filed on Mantena‘s behalf was no longer considered valid, USCIS denied Mantena‘s I-485 adjustment-of-status application on November 20, 2012. This appears to be the first Mantena hеard of any problems.4 In its I-485 denial, USCIS explained that “the approval of [the I-140] visa petition has been revoked . . . on the basis of fraud and misrepresentation.” App. 57.
Administrative Appeals
Mantena filed multiple motions seeking to have the I-485 denial reopened and reconsidered and the I-140 revocation reversed. On the final motion, USCIS rendered
In its denial, USCIS first rejected Mantena‘s attempts to reopen the revocation of the I-140 petition. Citing
Relying on
District Court
Mantena filed this lawsuit in the Southern District of New York challenging both USCIS‘s revocation of the approved I-140 petition and the subsequent denial of her I-485 application. These actions, she asserted, violated the agency‘s own regulations and deprived her of constitutional due process rights.6 She also sought attorney‘s fees. The government moved to dismiss Mantena‘s complaint for lack of subject matter jurisdiction as to the I-140 denial,
The district court dismissed Mantena‘s nonconstitutional claims for lack of subject matter jurisdiction, acting sua sponte with respect to her I-485 claim. The District Court also granted judgment on the pleadings against Mantena on her due process claim and on hеr claim for fees.
Mantena filed a timely appeal.
DISCUSSION
When this Court reviews the dismissal of a complaint for lack of subject matter jurisdiction, “we review factual findings for clear error and legal conclusions de novo, accepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff‘s favor.” Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Id. (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). We review de novo a district court‘s dismissal of a suit pursuant to a motion for judgment on the pleadings. See King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). “In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences
I
At the outset of our review are two questions: (1) whether the
A. Subject Matter Jurisdiction
The
As discussed below, we hold that the district court was in error. Although the statute strips jurisdiction over a substantive discretionary decision,
The district court held that revocation of an employment visa petition—such as occurred here—is in the discretion of the Secretary of Homeland Security, thereby stripping the court of jurisdiction. The revocation statute,
But the actual issue here is a different one. Regardless of whether the substantive revocation decision is shielded from judicial review, no party has provided authority to suggest that the procedure surrounding the substantive decision is similarly shielded. We hold that it is not,
“It is an abecedarian principle of administrative law that agencies must comply with their own regulations.” Manguriu v. Lynch, 794 F.3d 119, 122 (1st Cir. 2015). “This principle is applicable in the context of proceedings to revoke a visa petition.” Id. Accordingly, our Court has held that compliance with regulations establishing procedural requirements is “not within the discretion of the Attorney General,” so the
Indeed, our own decision in Firstland stands for the principle that the Secretary may well not have complete discretion over the procedure for making a decision, even if the substantive decision falls within his discretion. In that case, we addressed a since-repealed statutory provision that required notice before a revocation could occur. That notice requirement bound the discretion of the Attorney General‘s revocation decision: “[A]lthough the substance of the decision that there should be a revocation is committed to the discretion of the Attorney General . . . mandatory notice requirements . . . must be met in order for the revocation to be effective, and courts retain jurisdiction to review whether those requirements have been met.” Firstland, 377 F.3d at 130 (emphasis added).
The government urges us not to follow Firstland and Kurapati because Mantena does not identify a statute or regulation that explicitly supports her right to notice. Given that absence, the government contends, the process must be discretionary. This argument is unavailing. First, it ignores the fact that Mantena challenges the sufficiency of notice to VSG, a notice that is explicitly required by regulation. Moreover, and more important, a court cannot determine whether USCIS complied with the procedural requirements of the applicable regulations and statutes without determining what these statutes and regulations require. And it is precisely a determination of what the relevant statutes and regulations mandate that Mantena seeks.
It follows that, even if no notice requirements were ultimately found to exist, the district court would still have been wrong to dismiss the case for lack of subject matter jurisdiction. The proper course, under such circumstances, would be to find subject matter jurisdiction and then (as the government also argues) find that the plaintiff had no right to the asserted procedural safeguards, and, therefore, had provided no claim upon which relief could
Finally, the government argues that the repeal of the particular statutory notice requirement at issue in Firstland indicates a congressional intent to leave all procedures in the discretion of the Secretary. In 2004, Congress did in fact remove a particular notice requirement obliging USCIS to provide notice of revocation to specific alien beneficiaries of immigrant visa petitions before those aliens commenced their journey to the United States. See Intelligence Reform & Terrorism Prevention Act of 2004, Pub. L. No. 108–458, 118 Stat. 3638, § 5304(c). But the deletion of this specific statutory notice requirement applicable only to a subgroup of revocations cannot be read as evincing an intent to abrogаte all other notice requirements.
If Congress wishes to grant the Secretary full discretion to use whatever procedures he wishes, including arbitrary ones, it must say so explicitly. It cannot simply assume that courts will read the abrogation of a particular notice requirement as making a much broader and dramatic change by implication. See Furlong v. Shalala, 238 F.3d 227, 233 (2d Cir. 2001) (noting the rebuttable presumption that Congress intends judicial review of administrative action).
We therefore conclude that the district court had jurisdiction to determine whether USCIS complied with those procedural requirements, including notice, that were mandated before it could revoke Mantena‘s employer‘s I-140 petition. We appreciate the possibility that even had whatever notice was required been given, Mantena‘s fate might have been the same, and that, at that point, the substance of the revocation might be exempt from judicial reviеw. But we hold that such a possibility does not change the procedural requirements of the revocation or Mantena‘s ability to challenge, in federal court, whether those requirements were met.
The district court‘s dismissal, on subject matter jurisdiction grounds, of Mantena‘s claims pertaining to her I-485 is similarly misguided. Even the government concedes on appeal that “the district court had jurisdiction to review Mantena‘s I-485 claims.” Gov‘t Brief – 23, n.8. The discretionary power to deny an I-485 application, rooted in
B. Standing
The government vigorously contests Mantena‘s standing to address the sufficiency of the notice that was given to VSG, Mantena‘s former employer. Since the district court dismissed the case pursuant to a lack of subject matter jurisdiction, it did not reach the question of standing. In the interest of judicial economy on remand, however, we reach the issue and hold that Mantena has Article III and prudential, as well as statutory, standing to raise her claims in the federal courts.
To have Article III standing, Mantena must demonstrate: (1) an injury-in-fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that can likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Mantena pled an injury-in-fact that would be traceable to failed notice. The revocation of Mantena‘s employer‘s I-140 petition (and subsequent automatic denial of her I-485 application) ended Mantena‘s multiyear attempt to secure a green card. If VSG was thе only party entitled to notice of Mantena‘s I-140 revocation, then even inadequate notice to VSG would have foreclosed any opportunity for Mantena to be notified and to provide evidence to USCIS in opposition to the revocation of VSG‘s I-140 petition. Similarly, if Mantena or perhaps her successor employer had been notified of the impending revocation, she would have had an alternative means to be aware of and challenge the pending revocation, regardless of whether VSG‘s notice was adequate. But neither Mantena nor CNC were notified. It follows that Mantena suffered an injury-in-fact, from a holding that only VSG had a right to notice.
As for redressability, even if USCIS ultimately decides not to grant Mantena a green card, the “lost opportunity is itself a concrete injury—and a favorable decision would redress it.” Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 638 (6th Cir. 2013). See also Abboud v. I.N.S., 140 F.3d 843, 847 (9th Cir. 1998) (“This lost opportunity represents a concrete injury to Abboud that is traceable to [USCIS‘s] conduct and remediable by a favorable decision in this case.“); Shalom Pentecostal Church v. Acting Sec‘y U.S. Dep‘t of Homeland Sec., 783 F.3d 156, 161-62 (3d Cir. 2015) (finding constitutional and statutory standing to challenge I-360 revocation and noting that redressability, “in the context of multi-part proceedings” should be based on the “availability of relief at a given step, rather than the likelihood of achieving the ultimate goal“).
2.
Prudential standing may impose two additional limitations to the constitutional requirements: “the general prohibition on a litigant‘s raising another person‘s legal rights [and] the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches.” Lexmark Int‘l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (internal quotation mark omitted).10
The continued viability of these prudential standing factors, has, however, been questioned. In passing, the Supreme Court has recently said that a court “cannot limit a cause of action that Congress has created merely because ‘prudence’ dictates.” Id. at 1388. But because Mantena satisfies the two traditional requirements
3.
The government argues, apart from constitutional and prudential standing, that the regulations also deprive Mantena of standing in federal court. At the end of Mantena‘s administrative appeals, in its final decision to Mantena, USCIS wrote that “[a]s the beneficiary, you are not an ‘affected рarty’ in that matter [of the I-140 revocation] and do not have standing to reopen it, nor does AC21 create such a standing or transfer the petitioner‘s rights to you.” App. 94-95. USCIS based its conclusion on the following regulation:
“For purposes of this section and §§ 103.4 and 103.5 of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition.”
Significantly, however, this regulation was promulgated a decade prior to Congress‘s passing of AC-21 in 2000. See Appeals, Precedents, Certifications and Motions, 55 Fed. Reg. 20,767, 20,769 (May 21, 1990). And the Federal Register notice from 1990 explains the beneficiary‘s exclusion from the definition of “party” by noting that “a visa petition proceeding has long been a proceeding between the petitioner and the Service.” Id. at 20,768. Consequently, it declares that “[t]he beneficiary of the petition doеs not have any standing in such a proceeding.” Id. The Federal Register then cites to a BIA decision, Matter of Sano, 19 I. & N. Dec. 299 (1985), which points back to the aforementioned regulatory framework. Brief for American Immigration Council and American Immigration Lawyers Association as Amici Curiae 12, n.8.
Notably, this whole administrative structure appears currently to be up for review. The Administrative Appeals Office of USCIS recently issued a call for amicus briefing to further study the application of
In any event, the fact that Mantena may not have satisfied USCIS‘s definition of “legal standing” before the agency does not mean she does not have standing to bring this lawsuit in federal court. As one of our sister circuits has concluded, “the regulatory definition of ‘аffected party’ does not preclude the beneficiary from having standing in the district court, as it relates to who has the ability to challenge the administrative denial of a petition.” Kurapati, 775 F.3d at 1260.12
II
The district court, having dismissed Mantena‘s statutory and regulatory claims for lack of subject matter jurisdiction, did not address the merits of her contention that she, or her current employer, should have been given notice of the government‘s intention to review the validity of VSG‘s I-140 petition. Since we have concluded, instead, that jurisdiction exists in the federal courts to hear Mantena‘s claims, and that she has standing in our courts to raise her claims, we must now turn to the substance of these claims. Mantena maintains that notice is needed both as a statutory and constitutional requirement. Because we find below that the INA, as amended by AC-21, requires some form of such notice for post-porting beneficiaries, at least as to those aliens who have notified USCIS of their change in employment, we need not and hence will not address her constitutional arguments. Since defining the exact contours of the statutory requirement would, however, benefit from further briefing and perhaps factfinding, we will remand to the district court for consideration in the “first instance” of these contours, and also to determine whether further remand to the AAO is appropriate in this regard. Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 119 (2d. Cir. 2005).
A. Notice
The regulations governing I-140 revocation require two forms of notice before a revocation such as Mantena‘s can occur. They first mandate that “[r]evocation of the approval of a petition . . . be made only on notice to the petitioner or self-petitioner,” who “must be given the opportunity to offer evidence in support of the petition or self-petition and in opposition to the grounds alleged for revocation of the approval.”
In that prе-porting world, an employee would have needed a new immigrant visa petition (I-140) by a new employer for any new employment to serve as the basis for adjustment of status. The petitioner of the I-140 had to remain the alien‘s employer until the alien‘s adjustment of status application was decided and would therefore maintain a relationship with the petition beneficiary (the alien) all the way through the adjudication of the I-485. This situation left employees essentially tethered to particular jobs for the duration of USCIS processing, which were marked by long delays. But it also meant that notice
The statutory portability provisions,
Congress manifestly envisioned, and hoped to promote, the development of these supplanting interests through its portability amendments to the INA. To make its intent clear, Congress explicitly titled one of the portability provisions “Job flexibility for long delayed applicants for adjustment of status to permanent residence.”
The job flexibility that Congress encouraged was designed to benefit not only the employee, but also employers. By virtue of the portability provisions, employers who hoped to attract foreign national employees by sponsoring them to become permanеnt residents based on a permanent job offer could avoid bureaucratic delay. Under the statute, as Congress recognized, such employers would be able to attract skilled workers with aspirations of permanent residency by relying on a prior employer‘s filings. See S. Rep. 106-260, 2 (2000) (“In the Information Age, when skilled workers are at a premium, America faces a serious dilemma when employers find that they cannot grow, innovate, and compete in global markets without increased access to skilled personnel.“); 146 Cong. Rec. H8699-01 (daily ed. Oct. 3, 2000) (statement of Rep. Lofgren) (noting that AC-21 “does things that are important in reforming the permanent side of the immigration system which is almost broken because of bureaucratic delay” and “allows for portability of H-1B status as well as portability of I-140s and labor certifications“); Brief for American Immigration Council and American Immigration Lawyers Association as Amici Curiae 10.
Given portability, howеver, the alien employees and the successor employers who take advantage of earlier filings by other employers are frequently the only parties with any interests in the originally filed labor certifications and I-140 petitions. By employing Mantena, CNC had, in a crucial sense, adopted VSG‘s I-140 petition. The revocation of VSG‘s I-140 petition mattered little if anything to VSG, which no longer employed Mantena (and might not even remain in existence). It may well have mattered crucially to CNC.
In such a world, who then is the proper recipient of the notice mandated by the regulations? We believe it cannot be a party who no longer has any interest in the matter. Because the portability provisions altered the parties who have an interest in opposing the revocation of a ported I-140 petition, we believe that the regulations must be read to require notice to the real parties in interest. That is, the regulations, which were originally written to inform the parties in interest, only “parse” today if Mantena or CNC is entitled to notice of intent to revoke.
Relying solely on notice to VSG effectively precluded Mantena from being notified until it was too late to act, until her adjustment of status application was consequentially denied. More broadly, limiting the notice to the original petitioner precludes the new employer, the one who has, under the portability provisions, been allowed to adopt the original I-140 petition,
The government counters that the AC-21 porting regime does not alter the notice requirements in any way. The regulations are unchanged textually, and the government points to the regulation defining “affected party,”
The “affected party” regulation is a remnant of the pre-porting regime, and, we believe, it must be read as such. The regulation, promulgated ten years prior to AC-21, noted that “a visa petition proceeding has long been a proceeding between the petitioner and the service.” Appeals, Precedents, Certifications and Motions, 55 Fed. Reg. 20,767, 20,768 (May 21, 1990). AC-21, however, allows beneficiaries to sever ties from the original petitioner and move to new employment, with their new employers relying on the original petitioner‘s I-140. Mantena and her new employer were permitted to and in fact relied on the I-140 petition of Mantena‘s former employer, who no longer had ties to Mantena. Because Mantena‘s new employer was permitted to adopt the I-140 petition made by her prior employer, it only makes sense that the subsequent employer be treated as the de facto petitioner and thus entitled to adequate notice in cases of visa petition revocations. This should especially be the case here, where Mantena and her successor employer wrote to USCIS explicitly seeking to substitute the new employer for VSG.13
We leave open, for the moment, the precise way to read the notice regulations in the light of AC-21. That is, the question of who is entitled to notice, whether the beneficiary or the successor employer, we leave to the district court to decide in the first instance.14 On remand to the district court, we encourage supplemental briefing regarding the precise statutory origins and requirements of the regulations establishing the NOIR in I-140 revocation proceedings, particularly with regard to both the Administrative Procedure Act and INA. Such a more thorough briefing can shed further light on how to read the regulation so that it best comports with the notice requirements implicit in, but nonetheless mandated by, AC-21.
In doing this, the district court may consider remanding to the AAO for it to address the question in the light of its particular expertise in the matter. See Lugo v. Holder, 783 F.3d 119, 121 (2d Cir. 2015) (remanding to the BIA where the court “would benefit from the [administrative body‘s] precedential opinion” and expertise); Ay v. Holder, 743 F.3d 317, 320 (2d Cir. 2014) (per curiam) (remanding to the BIA to address statutory question in light of the administrative body‘s expertise).
B. Constitutional Claim
Because we believe that the post-porting statutory scheme requires notice of the revocation to parties beyond the original petitioner, we need not consider whether, despite the doubts cast by many courts on the liberty and property interests implicated in an immigrant visa, a lack of notice would violate the constitutional procedural due process requirements. Our reading of the effect of the portability provisions allows us to avoid addressing this potentially problematic constitutional question.
CONCLUSION
Mantena‘s immigration ordeal highlights the barriers that, fifteen years after the passage of legislation, still impede Congress‘s intent to provide flexibility to non-citizen workers seeking immigrant status and to those employers seeking to hire such skilled workers. For the reasons set forth above, we VACATE the judgment of the district court and REMAND the case to that court for further proceedings consistent with this opinion. This panel