No Review of USCIS Failure to Say Why It Revoked I-140

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By Laura D. Francis

Dec. 1 — Federal courts cannot review a failure by U.S. Citizenship and Immigration Services to provide reasons for revoking an employment-based green card petition, even though its regulations require it to do so, a federal appeals court ruled Dec. 1.

The U.S. Court of Appeals for the Eighth Circuit said petition beneficiary Sriram Rajasekaran can't challenge the USCIS's failure to comply with 8 C.F.R. § 103.2(b)(16) because the Immigration and Nationality Act commits revocation to the agency's total discretion.

Rajasekaran also can't argue that his “porting” to another job maintained the validity of the I-140 immigrant petition for an alien worker under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Although that law states that the I-140 remains valid under certain circumstances after an immigrant changes jobs, the petition must be valid in the first place, and here it wasn't, the court said.

The decision comes less than two weeks after the USCIS issued new draft guidance intended to make it easier for immigrants to “port” to a different job and maintain an approved I-140.

AC21 Allows Immigrants to ‘Port' to New Jobs

Under AC21, the beneficiary of an approved I-140 can switch—or port—to the “same or similar” job as the one petitioned for, if the beneficiary's I-485 application to adjust to lawful permanent resident status has been pending at least 180 days.

In the draft policy memorandum, the USCIS is proposing to more clearly define “same or similar”—using Standard Occupational Classification codes from the Labor Department—in order to make it more clear which jobs I-140 beneficiaries can take and which they can't. The additional clarity is intended to remove some of the uncertainty that has kept I-140 beneficiaries in the same job while waiting for their green cards, which can take years, the USCIS said.

But the Immigration and Nationality Act's language committing revocation of an I-140 to the USCIS's discretion creates an additional wrinkle for immigrant workers who change jobs before getting a green card.

One issue is whether I-140 beneficiaries have standing to bring a legal challenge to the revocation in the first place. USCIS regulations provide that only “affected parties” can challenge revocations, and that the petitioner—the employer—is the only affected party.

Several court decisions have concluded that I-140 beneficiaries do have a stake in whether they are revoked, including Kurapati v. U.S. Citizenship & Immigration Services, 775 F.3d 1255, 2014 BL 359854 (11th Cir. 2014) (02 DLR A-4, 1/5/15) and Patel v. U.S. Citizenship & Immigration Services, 732 F.3d 633, 36 IER Cases 1461, 2013 BL 282065 (6th Cir. 2013) (199 DLR AA-1, 10/11/13).

The USCIS's Administrative Appeals Office also announced in April that it was seeking amicus briefs on the issue of standing, including whether AC21 has an impact in that area (68 DLR A-10, 4/9/15).

Failure to Follow Regulations Not Reviewable

The Eighth Circuit decision, written by Judge Duane Benton, didn't address standing. But its conclusion that courts can't even review whether the USCIS followed its own regulations in revoking an I-140 stands in contrast to the Eleventh Circuit's decision in Kurapati, which reached the opposite conclusion.

“[S]till reviewable is ‘a predicate legal question that amounts to a nondiscretionary determination underlying the denial of relief,' ” Benton wrote, quoting Abdelwahab v. Frazier, 578 F.3d 817, 2009 BL 181536 (8th Cir. 2009). “Whether an agency exceeds its statutory authority is necessarily a predicate legal question; whether an agency exceeds its regulatory authority is not,” he said.

With respect to the applicability of AC21, the Eighth Circuit acknowledged a circuit split on the issue of whether courts can review the denial of an I-485 application to adjust status. But it said it need not reach that issue because the I-140 petition that formed the basis for the I-485 application was invalid, necessarily rendering the I-485 invalid.

Judges James B. Loken and Bobby E. Shepherd joined the opinion.

Scott Bratton and Margaret Wong of Margaret W. Wong & Associates in Cleveland, Ohio, represented Rajasekaran. Glenn M. Girdharry of the Justice Department in Washington represented the USCIS.

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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