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Portability provisions entitle immigrant workers to advance notice of intent to revoke I-140 petition

By Ronald Miller, J.D.

In passing the portability provisions of the American Competitiveness in the 21st Century Act (AC-21), Congress required that prior to revoking an I-140 petition, notice be given either to an alien worker or to a successor employer even though they were not the original petitioning parties, ruled the Second Circuit. Congress intended to provide flexibility to noncitizen workers seeking immigrant status and to those employers seeking to hire such skilled workers. Thus, timely pre-revocation notice was required under the amended statutory scheme (Mantena v. Johnson, December 30, 2015, Calabresi, G.).

Green card application. The plaintiff, a computer programmer and citizen of India, first entered the United States on an H1-B visa petition filed by her initial employer. In 2003, she left the employer and joined a new company, VSG, which obtained a new H1-B visa on her behalf and agreed to sponsor her for her green card. VSG also obtained an alien labor certification for the plaintiff in early 2006. In July 2007, she filed an I-485 application for adjustment of status to permanent residency.

At the end of 2009, two years after filing her I-485, the plaintiff took advantage of recent federal legislation intended to increase the job flexibility of alien workers, the so called “portability” provisions of AC-21. These provisions allow an individual to change jobs or employers while preserving the validity of not only the individual’s application for adjustment of status but also the underlying immigrant visa petition and alien labor certification filed by the earlier employer. AC-21’s job flexibility “portability” provisions made clear that the adjustment of status process was no longer tied to a single employer during the time that the alien awaits a permanent residency visa to become available.

Immigrant petition revoked. Nearly two years after the employee left VSG for a new job, the president of VSG pleaded guilty to mail fraud in connection with an immigration petition filed on behalf of a different employee. As a consequence, USCIS decided to initiate the revocation of all petitions filed by VSG, asserting that all such petitions might be fraudulent. However, USCIS’s Notice of Intent to Revoke (NOIR) the employee’s I-140 petition was sent only to VSG. When USCIS revoked her I-140 petition, neither the employee nor her new employer was informed. By the time she learned of the revocation, her green card application had been automatically denied.

The employee filed multiple motions seeking to have the I-485 denial reopened and reconsidered and the I-140 revocation reversed. A district court dismissed her statutory and regulatory notice claims on jurisdictional grounds. Further, it dismissed her constitutional due process claim for failure to identify a protected interest.

Notice to affected parties. This case illustrates the importance of notifying affected parties of material changes in their proceedings and statuses and of giving them an opportunity to respond, the Second Circuit stressed. The appeals court addressed whether such notification is required by law and, if it is, where jurisdiction lies and who has standing to enforce that requirement. The appeals court disagreed with the district court with respect to jurisdiction over the employee’s claims. It also found that untimely notice occurred in this instance because of unintended cracks between new congressional legislation and old regulations.

Subject matter jurisdiction. The Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1252(a)(2)(B)(ii), strips district courts of subject matter jurisdiction over several defined categories of immigration decisions. The district court interpreted this provision to apply to all aspects of the revocation of the I-140 immigrant petition and the denial of the I-485 adjustment of status application, including the procedures by which those decisions are made. The appeals court found this to be in error, explaining that Section 1252 does not strip jurisdiction over procedural challenges. Here, the employee contended that USCIS erred procedurally as it (a) violated its own regulations by providing insufficient notice of the revocation to VSG (the initial petitioner) and (b) failed to give notice of the revocation either to her or to her new employer.

Regardless of whether the substantive revocation decision was shielded from judicial review, no party provided authority to suggest that the procedure surrounding the substantive decision was similarly shielded. The Second Circuit concluded that it was not, particularly where the procedural requirements were codified in statute or in regulations. In this instance, the employee challenged 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. It was precisely a determination of what the relevant statutes and regulations mandated that the employee sought.

Notice requirements. 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, concluded the appeals court. The proper course would have been to find subject matter jurisdiction and then find that the employee had no right to the asserted procedural safeguards, and, therefore, had provided no claim upon which relief could be granted.

Next, the appeals court rejected the government’s argument that the repeal of a particular statutory notice requirement indicated that Congress intended to leave all procedures to the discretion of the Secretary of Labor. In 2004, Congress removed the 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. But the deletion of this specific statutory notice requirement, applicable only to a subgroup of revocations, cannot be read as evincing an intention to abrogate all other notice requirements, the appeals court said.

Consequently, the Second Circuit concluded that the district court had jurisdiction to determine whether USCIS complied with those procedural requirements, including notice, that were mandated before it could revoke the employee’s I-140 petition. The appeals court also ruled that the district court’s dismissal, on subject matter jurisdiction grounds, of the employee’s claims pertaining to her I-485 was similarly misguided.