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Immigration Law
CA2 Says Post-Porting Beneficiary Has Standing to Challenge Lack of Notice before I-140 Revocation
      Browse: 1855      Date: 01-07-2016

Giving an Indian computer programmer the chance to contest the denial of her application for adjustment of status, the Second Circuit Court held that USCIS is required by the portability provisions of AC21 to give notice to the beneficiary or to the successor employer that it is revoking an approved I-140 petition filed by a previous employer. (Mantena v. Johnson, 12/30/15)

Facts

Ganga Mantena (“Plaintiff”), an Indian citizen, entered the United States in 2000 on an H-1B visa to work as a programmer for the New Jersey-based IT company, Vision Systems Group.

Vision Systems Group filed an alien labor certification for the Plaintiff with the Department of Labor, followed by an I-140 Immigrant Petition for Alien Worker with USCIS.  Plaintiff filed for adjustment of status to obtain a green card and then changed employers pursuant to the portability provisions of the American Competitiveness in the 21st Century Act of 2000 (AC21), 8 U.S.C. 1154(j) and 8 U.S.C. 1182(a)(5)(A)(iv).

Vision Systems Group's president, Viswa Mandalapu subsequently pleaded guilty to mail fraud associated with a petition filed on behalf of another employee. Because of that case, USCIS initiated revocation of all petitions filed by Vision Systems Group, but neither plaintiff nor her new employer were informed of these events. The Plaintiff found out about the revocation of the I-140 petition when she received the notice of denial of her application for adjustment of status from USCIS.

In 2014, a federal judge dismissed Mantena's lawsuit accusing Department of Homeland Security Secretary and three other immigration officials of violating her constitutional due-process rights.

As a preliminary matter, the court concluded that it has subject matter jurisdiction to consider plaintiff's claims. On the merits, the court held that USCIS acted inconsistently with the statutory portability provisions of AC21 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 AC21, has in effect adopted the original I-140 petition. Writing on behalf of a unanimous Second Circuit panel, U.S. Circuit Judge Guido Calabresi said that Mantena arrived in court from a more fortunate position than many in her place.

 "Much of our court's recent docket has been consumed with poor, often pro se, immigrants who lack, but hope to obtain, legal status," he wrote in a 33-page opinion.

 "Mantena's immigration ordeal highlights the barriers that, 15 years after the passage of legislation, still impede Congress's intent to provide flexibility to non-citizen workers seeking immigrant status and to those employers seeking to hire such skilled workers," Calabresi wrote.

"If Congress wishes to grant the Secretary full discretion to use whatever procedures he wishes, including arbitrary ones, it must say so explicitly," the opinion states. "It cannot simply assume that courts will read the abrogation of a particular notice requirement as making a much broader and dramatic change by implication."

In emphasizing "portability," Congress hoped to benefit employees and employers alike.

"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," the opinion states.

The court found that immigration officials use notification procedures that contradict this goal by leaving the applicant at the mercy of the initial employer.

"In such a world, who then is the proper recipient of the notice mandated by the regulations?" the judges asked. "We believe it cannot be a party who no longer has any interest in the matter."

Accordingly, the court vacated and remanded for further proceedings.

Attorney’s Comments

Passed in October 2000, the American Competitiveness in the 21st Century Act was designed to provide intending immigrants with more "portability" with their H-1B status while applying for permanent residency, commonly known as a "green card.” Congress made this possible so the foreign workers will not be locked into their first employer. This case will require USCIS to provide the notice of intent to revoke to the foreign worker or the new employer. What if the previous employer sends a request to revoke the approved petition to USCIS? Is it required to notify the foreign worker? Neither AC21 nor this case has addressed this issue.