I-140 Revocation Notice to Immigrant, New Employer Needed

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By Laura D. Francis

Dec. 30 — U.S. Citizenship and Immigration Services must provide notice to immigrant workers and/or their new employers, not just to the original employers, that it is revoking an I-140 petition, the Second Circuit has held.

The case follows other circuits holding that immigrant workers who are the beneficiaries of I-140 petitions—filed by employers—can pursue claims related to the USCIS's decision to revoke those petitions including the Eleventh (Kurapati v. U.S. Citizenship & Immigration Servs., 775 F.3d 1255, 2014 BL 359854 (11th Cir. 2014); 02 DLR A-4, 1/5/15) and the Sixth (Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 36 IER Cases 1461, 2013 BL 282065 (6th Cir. 2013); 199 DLR AA-1, 10/11/13).

The U.S. Court of Appeals for the Second Circuit went further than the other appeals courts by saying it's not only the immigrant worker who has a stake in whether the petition is revoked, but also the current employer. Under a law that allows workers to change jobs while awaiting their green cards, both the immigrant and the new employer rely on that original petition, the court said.

The decision also complements a proposed rule released the same day by the Department of Homeland Security that is aimed at making it easier for immigrants to change jobs while awaiting their green cards (see related story).

Regulations Preceded Job Portability Law

According to the court, the regulations the USCIS relied on in arguing that immigrants have no standing to challenge I-140 revocation decisions were issued before the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Under that law, immigrant workers with an approved I-140 and whose green card applications have been pending for 180 days can change jobs as long as the new job is the same as or similar to the one that was the basis for the petition.

“The job flexibility that Congress encouraged was designed to benefit not only the employee, but also employers,” Judge Guido Calabresi reasoned. “By virtue of the portability provisions, employers who hoped to attract foreign national employees by sponsoring them to become permanent 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,” Calabresi wrote.

Considering that portability, he said, it's often the case that the immigrant worker and the new employer are the only parties with an interest in the original petition.

“In such a world, who then is the proper recipient of the notice mandated by the regulations?” Calabresi asked. “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,” the court held.

Subject-Matter Jurisdiction Not Lacking

The district court had dismissed the case for lack of subject-matter jurisdiction, reasoning that the Immigration and Nationality Act provision committing the decision to revoke an I-140 to the DHS's discretion meant the court couldn't hear the case.

But although the substance of the revocation decision can't be reviewed by a court, that doesn't mean individuals can't challenge the procedure the agency uses to effect that revocation, the Second Circuit said. The court has held that agency compliance with its own regulations isn't subject to the agency's discretion, it said.

The court noted that the Eighth Circuit recently held the opposite in Rajasekaran v. Hazuda, 2015 BL 393183, 8th Cir., No. 14-3623, 12/1/15 (230 DLR AA-1, 12/1/15).

Because the district court dismissed the case, it didn't reach the question of who is entitled to notice of that revocation, the appeals court said.

The Second Circuit said that, therefore, the district court should decide in the first instance whether notice of intent to revoke an I-140 should be sent to both the immigrant worker and the new employer, or whether notice to just one or the other is required. The court also encouraged supplemental briefing on remand.

The appeals court added that the district court may consider remand to the USCIS's Administrative Appeals Office “to address the question in the light of its particular expertise in the matter.” The AAO is considering the issue, and in April sought amicus briefs on whether immigrants are “affected parties” that, under USCIS regulations, can appeal revocation decisions (68 DLR A-10, 4/9/15).

Indian Programmer Changed Jobs After Petition

The case involved Indian citizen Ganga Mantena, a “relatively affluent and skilled computer programmer” who was sponsored for an employment-based green card by Vision Systems Group Inc. Two years after filing her green card application based on VSG's approved I-140, Mantena went to a similar job with CNC Consulting Inc., as she was permitted to do under AC21.

About a year later, the president of VSG pleaded guilty to mail fraud in connection with a different I-140 petition. As a result, the USCIS began revoking all of VSG's petitions on the grounds that they “may be fraudulent.”

The USCIS sent a notice of intent to revoke only to VSG, which didn't respond. Mantena had no notice of the I-140 revocation until after her green card application was denied, about three years after she left employment with VSG. At the time, VSG no longer existed.

The USCIS rejected Mantena's attempts to challenge the I-140 revocation, arguing that only VSG was legally entitled to do so. For the same reason, it also said she wasn't entitled to notice of the revocation. On appeal, the district court dismissed the case for lack of subject-matter jurisdiction.

“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,” Calabresi wrote. “This is true for any legal proceeding, but is a particular and continuing concern for immigrants throughout the multistep administrative process.”

Judges Chester J. Straub and Rosemary S. Pooler joined the opinion.

Joseph C. Hohenstein of the Law Office of Joseph Hohenstein in Philadelphia represented Mantena. Christopher Connolly and Benjamin H. Torrance of the U.S. attorney's office in New York represented the USCIS.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com