Srinivasa MUSUNURU, Petitioner-Appellant, v. Loretta E. LYNCH, et. al, Respondents-Appellees.
No. 15-1577
United States Court of Appeals, Seventh Circuit.
Argued October 29, 2015, Decided August 3, 2016
833 F.3d 880
Aaron S. Goldsmith, Attorney, Department of Justice, Civil Division, Washington, DC, for Respondents-Appellees.
Before FLAUM, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge.
Srinivasa Musunuru is a native and citizen of India who desires to become a lawful permanent resident through the Immigration and Nationality Act‘s employment-based immigrant visa process. At one point in time, he was the beneficiary of two visa petitions, the first filed by his previous employer, Vision Systems Group (“VSG“), and the second filed by his current employer, Crescent Solutions. Those visa petitions were assigned priority dates, which placed him in a long line of those eligible to receive a limited number of immigrant visas. The priority date assigned to VSG‘s visa petition allowed him to file an application with the United States Custom and Immigration Service (“USCIS“) for adjustment of status to permanent resident. But when an immigrant visa finally became available to Musunuru, USCIS did not adjust his status. Instead, it revoked VSG‘s visa petition. This invalidated the earlier priority date assigned to the petition, and left Musunuru with the later priority date assigned to Crescent Solutions’ petition. Because the priority date assigned to Crescent Solutions’ petition was much later, Musunuru must now wait several more years before USCIS can adjudicate his application allowing him possibly to become a permanent resident.
USCIS revoked VSG‘s petition because the owners pleaded guilty to the unlawful hiring of an alien and mail fraud, both in connection with an unrelated employee. Based on the owners’ convictions, USCIS presumed that all the visa petitions filed by VSG were fraudulent. Musunuru could have shown that his employment was not fraudulent, but USCIS did not give him the opportunity. USCIS sent notice of its intent to revoke the petition to VSG only, even though VSG had gone out of business and Musunuru had long since changed employers to Crescent Solutions. USCIS did
Musunuru filed a petition for judicial review under the Administrative Procedures Act. He claimed that the statutory portability provision that kept VSG‘s visa petition valid while he “ported” from VSG to Crescent Solutions also gave him a procedural right to pre-revocation notice and an opportunity to respond, as well as a right to administratively challenge the revocation. He also claimed that USCIS‘s application of the regulations denied him his right to procedural due process as protected by the Fifth Amendment. The district court granted USCIS‘s motion to dismiss. It found that the regulations did not entitle Musunuru to pre-revocation notice or an opportunity to respond, and that Musunuru did not have standing to administratively challenge the revocation. The district court also found that Musunuru‘s Fifth Amendment rights were not violated.
We reverse. We hold that USCIS applied the notice and challenge regulations in a manner inconsistent with the statutory portability provision that allowed Musunuru to change employers. We do not hold, however, that Musunuru was entitled to notice and an opportunity to respond, or to administratively challenge the revocation of VSG‘s visa petition. Instead, we hold that Musunuru‘s current employer, Crescent Solutions, was entitled to these things. We so hold because Congress intends for a nonimmigrant worker‘s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congress‘s intention, the new employer must be treated as the de facto petitioner for the old employer‘s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.
I. Background
A. The Employment-Based Visa Application Process
The Immigration and Nationality Act (“INA“) provides a three-step process by which an alien who is already lawfully present in the United States through a nonimmigrant worker visa or status (commonly called H1-B) may become a permanent resident. The first two steps are completed by the worker‘s employer so that the employer may hire the worker on a permanent basis, rather than the temporary basis permitted by the worker‘s H1-B status. First, the employer must obtain a labor certificate from the Department of Labor that certifies that there are insufficient able, willing, qualified, and available workers, and that hiring the alien worker on a permanent basis will not adversely affect the wages or working conditions of similarly employed U.S. workers.
The third and final step must be completed by the worker: he must apply for, and be granted, an adjustment of status to permanent resident.
To determine whether a visa is immediately available to file their I-485 applications, nonimmigrant workers must consult a monthly Visa Bulletin published by the Department of State.
Before 2000, a worker had to remain with his sponsoring employer until his I-485 application was approved because the I-140 petition‘s approval was entirely contingent on the worker staying with the same employer. Under the statutory scheme, both the labor certificate and the I-140 petition belong to the employer. The employer is the petitioner for the I-140 petition; the worker is considered the petition‘s beneficiary. See
In 2000, Congress amended the INA with respect to H1-B nonimmigrant aliens by passing the American Competitiveness
A petition under subsection (a)(1)(D) of this section for an individual whose application for adjustment of status pursuant to section 1255 of this title has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.
B. Musunuru‘s Efforts
In 2004, Musunuru was working in the United States for VSG. On February 17, 2004, VSG filed a labor certification application seeking to employ Musunuru on a permanent basis as a Programmer Analyst. The Department of Labor granted VSG the labor certification. On March 23, 2006, VSG filed an I-140 petition seeking to classify Musunuru under the professional or skilled worker classification of
A little over a year later, Musunuru filed his I-485 application when a visa became available to him. Before his application could be approved, however, the cut-off date for his category retrogressed past his priority date. Because Musunuru‘s priority date was no longer current, a visa was not available to him and approval of his I-485 application was delayed.
On January 1, 2010, after his I-485 application had been pending for more than 180 days, Musunuru took advantage of the AC21‘s portability provision and left VSG to accept a position with Crescent Solutions. Because Musunuru‘s job at Crescent Solutions was the same as that for which VSG filed its I-140 petition, Crescent Solutions did not apply for its own labor certificate or file its own I-140 petition, but relied on VSG‘s.
About a year after hiring Musunuru, Crescent Solutions applied for a new labor certificate so that it could promote Musunuru to the position of Computer Software Engineer. On January 31, 2011, the Department of Labor granted Crescent Solutions the certification. On March 16, 2011, Crescent Solutions filed a new I-140 petition seeking to classify Musunuru under
USCIS amended the priority date for Crescent Solutions’ petition because it had revoked VSG‘s labor certification and I-140 petition. In April 2011, the owners of VSG, two brothers, each pleaded guilty to unlawfully hiring aliens and mail fraud involving an unrelated H1-B visa for a different employee. As part of their plea deal, they were permanently debarred from participating in the labor certification program. VSG dissolved about a month later. So it was that VSG was no longer in business when USCIS sent VSG a notice of intent to revoke the I-140 petition VSG filed on behalf of Musunuru. Based on the owners’ convictions, USCIS revoked a number of VSG‘s I-140 petitions, Musunuru‘s included, and invalidated the labor certifications upon which the petitions were based. Being out of business, the company did not respond to the notice. For the same reason, VSG did not appeal the decision when notified of its right to an administrative appeal. USCIS sent neither Musunuru nor Crescent Solutions notice of its intent to revoke VSG‘s petition, so Musunuru did not learn of the revocation until well after the deadline to administratively appeal the action.
On July 5, 2012, USCIS sent Crescent Solutions a notice of intent to revoke the I-140 petition Crescent Solutions filed on behalf of Musunuru. The notice asserted that, based on the convictions of VSG‘s owners, Musunuru‘s work experience with VSG was not genuine and therefore the approval of Crescent Solutions’ I-140 petition, which relied on that work experience, should be revoked. Crescent Solutions and Musunuru responded to the notice and, by demonstrating that Musunuru‘s employment experience with VSG was genuine, they were able to overcome USCIS‘s grounds for revoking the I-140 petition. Nevertheless, USCIS maintained the amended priority date of January 28, 2011, from Crescent Solutions’ petition, rather than the earlier February 17, 2004 date from VSG‘s petition.
On September 4, 2013, USCIS finally issued a decision on Musunuru‘s I-485 application, but it was not the decision for which he had hoped. USCIS found that, since VSG‘s I-140 petition was revoked, Musunuru‘s application could not rely on VSG‘s earlier priority date. Instead, it could only rely on the later priority date from Crescent Solutions’ petition. Consequently, USCIS denied Musunuru‘s I-485 application for the reason that there were no visas available for petitions with the later priority date at the time he filed his application.3
On November 7, 2013, USCIS granted Musunuru‘s motion to reconsider. USCIS found that, before it had revoked VSG‘s I-140 petition, Musunuru had filed a request to transfer his I-485 application from VSG‘s petition to Crescent Solutions’ petition. USCIS also found that a visa was available when he filed his application. For these reasons, USCIS reinstated Musunuru‘s application to pending status with the priority date from Crescent Solutions’ petition. As for Musunuru‘s argument that the revocation of VSG‘s I-140 petition was erroneous, USCIS found that Musunuru lacked standing to contest the matter because he was the beneficiary, not the petitioner. It relied on
Musunuru sought judicial review of USCIS‘s actions under the Administrative Procedures Act (“APA“),
The district court denied USCIS‘s motion under Rule 12(b)(1), but granted its motion under Rule 12(b)(6). The district court found that, although it lacked jurisdiction to review USCIS‘s discretionary decision to revoke VSG‘s I-140 petition, it did have jurisdiction to review whether USCIS correctly followed its nondiscretionary procedures when it made the decision. On the merits, the district court ruled that USCIS did not err by failing to give Musunuru pre-revocation notice, nor did USCIS err by determining that Musunuru lacked standing to administratively challenge the revocation.4 The regulations give
II. Discussion
A. Standard of Review
We review a district court‘s determination that it had jurisdiction de novo. Samirah v. O‘Connell, 335 F.3d 545, 548 (7th Cir. 2003). We also review de novo a district court‘s dismissal of a case under Rule 12(b)(6), accepting the well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A court reviewing an agency‘s action, findings, or conclusions under the APA must set aside those it determines to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without observance of procedure required by law.”
B. Jurisdiction
USCIS argues that the district court lacked jurisdiction to decide the merits of Musunuru‘s petition for review. It is correct that
However, in Calma v. Holder, 663 F.3d 868 (7th Cir. 2011), we also held:
The court‘s inability to review the underlying claim for relief is, standing alone, an insufficient basis to preclude review of a related procedural motion. Instead, judicial review is foreclosed by § 1252(a)(2)(B)(i) only if the agency‘s rationale for denying the procedural request also establishes the petitioner‘s inability to prevail on the merits of his underlying claim.
Id. at 876 (internal quotation marks and citation omitted). Although Calma dealt with § 1252(a)(2)(B)(i), which prevents us from reviewing decisions made under certain enumerated sections of the INA, the same logic applies to § 1252(a)(2)(B)(ii). Here, we are reviewing USCIS‘s application of its mandatory procedures governing pre-revocation notice and post-revocation challenges,
C. Musunuru‘s Statutory Claim
The regulations are clear on this point: It is the visa petitioner who must receive notice of USCIS‘s intent to revoke an I-140 petition, not the beneficiary. The pertinent regulation is
If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except [for determinations of statutory eligibility or discretionary determinations based on classified information].
Furthermore, the regulations are clear that a beneficiary is not given an opportunity to challenge the revocation of an I-140 petition through a motion to reconsider, though a petitioner is. The regulation governing motions to reconsider an action or reopen a proceeding, § 103.5, describes motions to reconsider as “filed by an applicant or petitioner” and allows an official to reconsider a prior decision only for an “affected party.”
USCIS contends that there is no ambiguity in these regulatory provisions. It argues further that, if there is any ambiguity, the regulations can be reasonably read to exclude visa beneficiaries, such as Musunuru, from the provisions
According to Musunuru, after he took advantage of the AC21‘s porting provision,
Musunuru is correct that USCIS‘s interpretation is unreasonable because it fails to take into account the changes the AC21 wrought through the addition of the porting provision, § 1154(j). Yet, he is wrong about being the only party with a vested interest in the continued validity of the I-140 petition filed by VSG. Musunuru‘s new employer, Crescent Solutions, also had a vested interest in the petition‘s validity. For a little more than a year, until it filed its own I-140 petition, Crescent Solutions depended on VSG‘s petition to employ Musunuru. In short, Crescent Solutions adopted VSG‘s I-140 petition. And, although Crescent Solutions eventually filed its own petition on behalf of Musunuru, it still relied on VSG‘s petition for that petition‘s earlier priority date, which would have allowed the uncertainty surrounding Musunuru‘s permanent employment status to be removed much sooner.6
An examination of the AC21 reveals Congress‘s intent for the successor employer to adopt the I-140 petition filed on behalf of the porting beneficiary. Section 1154(j) does not require the beneficiary‘s successor employer to file a new petition, but allows the successor employer to rely on its predecessor‘s petition. Contrast this with the AC21‘s portability provision for H1-B status,7 which expressly requires a
Clearly, then, Congress intends for the successor employer to adopt the ported I-140 petition filed by the worker‘s previous employer. Since “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). To give effect to Congress‘s intent, the regulations must be read to include the successor employer as the petitioner. Thus, under
The Second Circuit recently decided a case very similar to ours: Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015). Mantena was also an employee of VSG, which filed an I-140 petition on her behalf. Like Musunuru, Mantena filed her I-485 application in response to the July 2007 Visa Bulletin and experienced a long delay in its adjudication. She, too, took advantage of the AC21‘s portability provision and moved to another employer around the beginning of 2010. When USCIS revoked VSG‘s I-140 petition filed on her behalf, it also did so after sending notice only to VSG. And, USCIS also relied on the exclusion of visa beneficiaries from the definition of “affected party” in
USCIS acted inconsistently with the statutory portability provisions of AC-21 by providing notice of an intent to revoke neither i) to an alien beneficiary who has availed herself of the portability provisions to move to a successor employer nor ii) to the successor employer, who is not the original I-140 petitioner, but who, as contemplated by AC-21, has in effect adopted the original I-140 petition.
Id. at 736. The Second Circuit declined to hold which of the two, the beneficiary or the successive employer, was entitled to notice, and instead left it to the district court to decide on remand. Id. We agree with our sister circuit that USCIS‘s actions were inconsistent with the AC21‘s statutory portability provisions, but we hold further that it is the successor employer that is entitled to notice and an opportunity to respond.8 More specifically, we hold that USCIS, by not treating the successor employer as the de facto petitioner, failed to comply with the applicable regulations in light of the statutory portability provisions of the AC21.
D. Musunuru‘s Fifth Amendment Claim
This leaves us with Musunuru‘s Fifth Amendment due process claim, in which he argues that USCIS‘s application of the regulations denied him his right to procedural due process as protected by the Fifth Amendment. The district court rightly held that the Fifth Amendment did not apply. Musunuru did not have a protected liberty or property interest in the continued validity of VSG‘s visa petition because the decision to revoke the petition was left to the discretion of USCIS. See Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004) (“[I]n immigration proceedings, a petitioner has no liberty or property interest in obtaining purely discretionary relief[.]“); Joseph v. Landon, 679 F.2d 113, 115 (7th Cir. 1982) (holding that an alien “d[oes] not have a vested right upon approval of [a] visa petition“).
Musunuru argues that when he changed employers in compliance with the AC21‘s portability provision, he was entitled, as a
Musunuru‘s argument is unpersuasive because he misinterprets the language of the portability provisions. The AC21 does not make a ported I-140 petition and labor certificate valid, it only ensures that they will “remain” valid despite the worker leaving the job for which they were filed. Id. Nor does the AC21 make a ported petition impervious to revocation. USCIS may still revoke an I-140 petition at its discretion,
III. Conclusion
Because USCIS applied the regulations in a manner inconsistent with the statutory portability provisions of the AC21 and should have provided to Musunuru‘s current employer notice and an opportunity to respond, we REVERSE and REMAND.
Notes
The alien beneficiary ... must send a letter from the new intended permanent employer specifying the job title and duties of the offered position, the minimum educational or training requirements, the date the alien beneficiary began (or will begin) employment and the offered salary or wage. The letter must be issued and signed by the appropriate authority within the new employer‘s organization who is authorized to make or confirm an offer of permanent employment.
USCIS, Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Worker, https://www.uscis.gov/forms/petition-filing-and-processing-procedures-form-i-140-immigrant-petition-alien-worker (last visited August 3, 2016).