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.