Argued August 18, 2015
As Amended January 29, 2016.
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, 8 U.S.C. § 1154(j) and 8 U.S.C. § 1182(a)(5)(A)(iv), to move to a successor employer while continuing in her application for adjustment of status to permanent residency (I-485). The original petitioning employer, for whom Mantena no longer worked, had filed the requisite I-140 petition and was the only party to receive notice of both the intent to revoke the I-140 petition and the ultimate revocation of that petition. This employer neither responded to the notice nor informed Mantena or Mantena's successor employer of that notice.
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 remand 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.
Before: CALABRESI, STRAUB, and POOLER, Circuit Judges.
GUIDO CALABRESI, Circuit Judge
Much of our Court's recent docket has been consumed with poor, often pro se, immigrants who lack, but hope to obtain, legal status. The current case addresses a differently situated immigrant with parallel aspirations. Ganga Mantena, a relatively affluent and skilled computer programmer, legally arrived in the United States on an H1-B visa and pursued employment-based status adjustment to permanent residency, colloquially known as a " green card." Mantena's pursuit occurred with benefit of counsel and, by the time of this appeal, of knowledgeable amici curiae as well.
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 Immigration Service (USCIS), in accordance with the relevant provisions of the Immigration and Nationality Act (INA). Pursuant to the INA, Mantena then filed for adjustment of status to obtain a green card. Mantena subsequently took advantage of recent federal legislation intended to increase the job flexibility of workers, the so-called " portability" provisions of the American Competitiveness in the 21st Century Act of 2000, 8 U.S.C. § 1154(j) and 8 U.S.C. § 1182(a)(5)(A)(iv). 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.
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.
The INA allows for a certain number of immigrants to receive permanent residency through employer sponsorship. For an employer-sponsored immigrant who is already in the United States, there is a three-part process for receiving permanent residency. First, the Department of Labor (DOL) must issue an alien labor certification to the immigrant's employer. (This certification states that the labor market can absorb the immigrant without affecting other workers' wages. See 8 U.S.C.§ 1182(a)(5)(A)(i).) Second, USCIS must approve the employer's immigrant visa petition (Form I-140). See 8 U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(a). Third, the immigrant must obtain approval of her own 1-485 application for adjustment of status. 8 U.S.C. § 1255(a); 8 C.F.R. § 204.5(n)(1).
This final step cannot take place until a permanent residency visa is available for the immigrant. 8 U.S.C. § 1255(a)(3). Because there are limits on the number of such visas in each category and from each country, immigrants must often wait many years for a permanent residency visa, especially if they are from a country, like India, that sends a large number of immigrants to the United States. See U.S. Dep't of State, Bureau of Consular Affairs, Visa Bulletin, Dec. 2015. The immigrant's place in line is set by the date that her alien labor certification was granted: her " priority date." 8 U.S.C. § 1153(e)(1). If her I-485 is approved, the alien becomes a lawful permanent resident and obtains a green card. As noted above, both a valid alien labor certification and a granted I-140 petition are prerequisites for an I-485 application to be granted.
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. 8 U.S.C. § 1154(j); AC-21 § 106(c)(1). The alien labor certification similarly remains valid for such an individual. 8 U.S.C. § 1182(a)(5)(A)(iv); AC-21 § 106(c)(2).
In essence, Congress's amendment of the INA with 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 waits for a permanent residency visa to become available. Under AC-21, the employer who takes steps one and two, the alien labor certification and petition for an immigrant visa, can differ from her employer at step three, when the immigrant is granted adjustment of status and a green card.
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 reviewed for many years.
At the end of 2009, two years after filing her 1-485, 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 ...