Srinivasa Musunuru v. Eric Holder, Jr., et al

Filing

Filed opinion of the court by Judge Manion. REVERSED and REMANDED. Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6772946-1] [6772946] [15-1577]

Case: 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1577
SRINIVASA MUSUNURU,
Petitioner-Appellant,
v.
LORETTA E. LYNCH, ET. AL,
Respondents-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin, Milwaukee Division.
No. 2-14-cv-00088 — Lynn Adelman, Judge.

____________________
ARGUED OCTOBER 29, 2015 — DECIDED AUGUST 3, 2016
____________________
Before FLAUM, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Srinivasa Musunuru is a native and
citizen of India who desires to become a lawful permanent
resident through the Immigration and Nationality Act’s employment-based immigrant visa process. At one point in time,
he was the beneficiary of two visa petitions, the first filed by
his previous employer, Vision Systems Group (“VSG”), and
the second filed by his current employer, Crescent Solutions.
Those visa petitions were assigned priority dates, which

Case: 15-1577

2

Document: 31

Filed: 08/03/2016

Pages: 24

No. 15-1577

placed him in a long line of those eligible to receive a limited
number of immigrant visas. The priority date assigned to
VSG’s visa petition allowed him to file an application with the
United States Custom and Immigration Service (“USCIS”) for
adjustment of status to permanent resident. But when an immigrant visa finally became available to Musunuru, USCIS
did not adjust his status. Instead, it revoked VSG’s visa petition. This invalidated the earlier priority date assigned to the
petition, and left Musunuru with the later priority date assigned to Crescent Solutions’ petition. Because the priority
date assigned to Crescent Solutions’ petition was much later,
Musunuru must now wait several more years before USCIS
can adjudicate his application allowing him possibly to become a permanent resident.
USCIS revoked VSG’s petition because the owners
pleaded guilty to the unlawful hiring of an alien and mail
fraud, both in connection with an unrelated employee. Based
on the owners’ convictions, USCIS presumed that all the visa
petitions filed by VSG were fraudulent. Musunuru could have
shown that his employment was not fraudulent, but USCIS
did not give him the opportunity. USCIS sent notice of its intent to revoke the petition to VSG only, even though VSG had
gone out of business and Musunuru had long since changed
employers to Crescent Solutions. USCIS did so because VSG
was the petitioner and the regulations provided notice to only
the petitioner. This left Musunuru unaware of the revocation.
When he finally discovered what had happened, he requested
that USCIS reconsider its revocation of VSG’s petition. USCIS

Case: 15-1577

No. 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

3

denied the request because Musunuru was the petition’s beneficiary, not the petitioner, and therefore lacked standing to
administratively challenge the revocation. 1
Musunuru filed a petition for judicial review under the
Administrative Procedures Act. He claimed that the statutory
portability provision that kept VSG’s visa petition valid while
he “ported” from VSG to Crescent Solutions also gave him a
procedural right to pre-revocation notice and an opportunity
to respond, as well as a right to administratively challenge the
revocation. He also claimed that USCIS’s application of the
regulations denied him his right to procedural due process as
protected by the Fifth Amendment. The district court granted
USCIS’s motion to dismiss. It found that the regulations did
not entitle Musunuru to pre-revocation notice or an opportunity to respond, and that Musunuru did not have standing
to administratively challenge the revocation. The district
court also found that Musunuru’s Fifth Amendment rights
were not violated.
We reverse. We hold that USCIS applied the notice and
challenge regulations in a manner inconsistent with the statutory portability provision that allowed Musunuru to change
employers. We do not hold, however, that Musunuru was entitled to notice and an opportunity to respond, or to adminis-

1

Our discussion of Musunuru’s standing to administratively challenge the revocation of VSG’s visa petition concerns Musunuru’s standing
before the agency, not his Article III standing before the court, which he has.
See Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d
1255, 1259–61 (11th Cir. 2014); Patel v. U.S. Citizenship & Immigration Servs.,
732 F.3d 633, 637–38 (6th Cir. 2013) (relying on Stenographic Machs., Inc. v.
Reg’l Adm’r for Emp’t & Training, 577 F.2d 521, 527–28 (7th Cir. 1978)).

Case: 15-1577

Document: 31

Filed: 08/03/2016

4

Pages: 24

No. 15-1577

tratively challenge the revocation of VSG’s visa petition. Instead, we hold that Musunuru’s current employer, Crescent
Solutions, was entitled to these things. We so hold because
Congress intends for a nonimmigrant worker’s new employer
to adopt the visa petition filed by his old employer when the
worker changes employers under the statutory portability
provision. Thus, to give effect to Congress’s intention, the new
employer must be treated as the de facto petitioner for the old
employer’s visa petition. As the de facto petitioner, the new
employer is entitled under the regulations to pre-revocation
notice and an opportunity to respond, as well as to administratively challenge a revocation decision.
I. Background
A. The Employment-Based Visa Application Process
The Immigration and Nationality Act (“INA”) provides a
three-step process by which an alien who is already lawfully
present in the United States through a nonimmigrant worker
visa or status (commonly called H1-B) may become a permanent resident. The first two steps are completed by the
worker’s employer so that the employer may hire the worker
on a permanent basis, rather than the temporary basis permitted by the worker’s H1-B status. First, the employer must obtain a labor certificate from the Department of Labor that certifies that there are insufficient able, willing, qualified, and
available workers, and that hiring the alien worker on a permanent basis will not adversely affect the wages or working
conditions of similarly employed U.S. workers. 8 U.S.C.
§§ 1153(b)(3)(C), 1182(a)(5)(A)(i). Second, the employer must
file, and USCIS must approve, an immigrant visa petition that
assigns the worker to one of the INA’s immigrant visa preference categories for employment-based permanent residency.

Case: 15-1577

No. 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

5

8 U.S.C. §§ 1154(a)(1)(F), 1255(a)(2). The petition is also called
an I-140 after the name of the form used to file the petition:
Form I-140, Immigrant Petition for Alien Worker. See 8 C.F.R.
§ 204.5(a). The worker does not receive a visa upon approval
of the employer’s I-140 petition, because there is a quota
where only a certain number of visas are made available per
country of origin each calendar quarter. 8 U.S.C. §§ 1151(a)(2),
1152(a). Instead, an approved I-140 petition makes the worker
eligible to receive a visa once one becomes available.
The third and final step must be completed by the worker:
he must apply for, and be granted, an adjustment of status to
permanent resident. 8 U.S.C. § 1255(a). The application is also
called an I-485 after the form used to file the application: Form
I-485, Application to Register Permanent Residence or Adjust
Status. See 8 C.F.R. § 204.5(n)(1). The worker may not file his
I-485 application until a visa is immediately available. 8 U.S.C.
§ 1255(a)(3); 8 C.F.R. § 245.2(a)(2). Visas are issued to eligible
workers as the visas become available and in the order in
which the workers’ employers filed their I-140 petitions. 8
U.S.C. § 1153(e)(1). To maintain the proper order, USCIS assigns each approved I-140 petition a priority date based on the
date the petitioning employer filed its labor certification application. 8 C.F.R. § 204.5(d).
To determine whether a visa is immediately available to
file their I-485 applications, nonimmigrant workers must consult a monthly Visa Bulletin published by the Department of

Case: 15-1577

6

Document: 31

Filed: 08/03/2016

Pages: 24

No. 15-1577

State. 8 C.FR. § 245.1(g). 2 The Visa Bulletin is organized according to country of origin and visa preference category. If
there are sufficient visas available for all known applicants
from a specific country and of a specific preference category,
then the Visa Bulletin lists that combination as “current,” and
all applicants matching that combination may file an I-485 application regardless of their priority date. If there are insufficient visas available for all known applicants of a specific
combination, then the Visa Bulletin lists a cut-off date, and
only those applicants who have priority dates earlier than the
cut-off date may file an I-485 application. Sometimes, a cut-off
date may retrogress, meaning that fewer visas are available
than previously projected. When that happens to an applicant
whose I-485 application is already filed, the applicant is
forced to wait until the cut-off date again progresses past his
priority date for his application to be adjudicated.
Before 2000, a worker had to remain with his sponsoring
employer until his I-485 application was approved because
the I-140 petition’s approval was entirely contingent on the
worker staying with the same employer. Under the statutory
scheme, both the labor certificate and the I-140 petition belong
to the employer. The employer is the petitioner for the I-140
petition; the worker is considered the petition’s beneficiary.
See 8 U.S.C. § 1154(a)(1)(F) (“Any employer desiring and intending to employ within the United States an alien entitled
to classification under section 1153(b)(1)(B), 1153(b)(1)(C),
1153(b)(2), or 1153(b)(3) of this title may file a petition with
the Attorney General for such classification.”). See also 8 C.F.R.
2

Current and past visa bulletins can be found online at
https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
(last visited August 3, 2016).

Case: 15-1577

Document: 31

Filed: 08/03/2016

No. 15-1577

Pages: 24

7

§ 204.5 (referring to the employer as “petitioner” and the
worker as “beneficiary”).
In 2000, Congress amended the INA with respect to H1–B
nonimmigrant aliens by passing the American Competitiveness in the Twenty-First Century Act (“AC21”), Pub. L. 106313, 114 Stat. 1251 (Oct. 17, 2000). The AC21’s goal was to help
employers acquire and retain the skilled workers necessary
for the technological revolution that was beginning to pick up
steam. S. Rep. 106-260, 2 (2000). Among other amendments,
the AC21 added INA §§ 204(j) and 212(a)(5)(A)(iv), which
made I-140 petitions and labor certifications portable to new
employers for long-delayed applicants for adjustment of status:
A petition under subsection (a)(1)(D) of this section for an individual whose application for adjustment of status pursuant to section 1255 of
this title has been filed and remained unadjudicated for 180 days or more shall remain valid
with respect to a new job if the individual
changes jobs or employers if the new job is in
the same or a similar occupational classification
as the job for which the petition was filed.
8 U.S.C. § 1154(j); Pub. L. 106-313 § 106(c)(1). The AC21’s portability provision for labor certificates is substantially similar.
8 U.S.C. § 1182(a)(5)(A)(iv); Pub. L. 106-313 § 106(c)(2). Under
the AC21, a worker no longer has to remain with his sponsoring employer until his I-485 application is approved. In effect,
the worker’s new employer can use the previous employer’s
labor certification and I-140 petition to hire the worker (who
is said to then “port” to the new employer), so long as the new

Case: 15-1577

Document: 31

8

Filed: 08/03/2016

Pages: 24

No. 15-1577

job is in the same or similar occupational classification as the
previous one.
B. Musunuru’s Efforts
In 2004, Musunuru was working in the United States for
VSG. On February 17, 2004, VSG filed a labor certification application seeking to employ Musunuru on a permanent basis
as a Programmer Analyst. The Department of Labor granted
VSG the labor certification. On March 23, 2006, VSG filed an
I-140 petition seeking to classify Musunuru under the professional or skilled worker classification of 8 U.S.C.
§ 1153(b)(3)(A), commonly called EB-3. Four months later,
USCIS approved the I-140 petition, assigning it a priority date
of February 17, 2004, when VSG filed its labor certification application. This date was very important because it reserved
his place in line as visas became available for immigrants from
India.
A little over a year later, Musunuru filed his I-485 application when a visa became available to him. Before his application could be approved, however, the cut-off date for his category retrogressed past his priority date. Because Musunuru’s
priority date was no longer current, a visa was not available
to him and approval of his I-485 application was delayed.
On January 1, 2010, after his I-485 application had been
pending for more than 180 days, Musunuru took advantage
of the AC21’s portability provision and left VSG to accept a
position with Crescent Solutions. Because Musunuru’s job at
Crescent Solutions was the same as that for which VSG filed
its I-140 petition, Crescent Solutions did not apply for its own
labor certificate or file its own I-140 petition, but relied on
VSG’s.

Case: 15-1577

No. 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

9

About a year after hiring Musunuru, Crescent Solutions
applied for a new labor certificate so that it could promote
Musunuru to the position of Computer Software Engineer. On
January 31, 2011, the Department of Labor granted Crescent
Solutions the certification. On March 16, 2011, Crescent Solutions filed a new I-140 petition seeking to classify Musunuru
under 8 U.S.C. § 1153(b)(2) as an alien who is member of a
profession holding an advanced degree or an alien of exceptional ability, commonly called EB-2. USCIS approved the petition a week later on March 23, 2011. Crescent Solutions’ petition retained the earlier priority date from VSG’s petition,
February 17, 2004. See 8 U.S.C. § 204.5(e).
Now that Musunuru was classified under EB-2, a visa was
immediately available to him, so that USCIS could adjudicate
his I-485 application. (At the time, the cut-off date for EB-2
workers from India was over four years later than that for EB3 workers from India.) Yet, because of a legal problem (see below), USCIS did not approve Musunuru’s I-485 application.
Instead, on March 12, 2012, USCIS amended its approval of
Crescent Solutions’ I-140 petition. USCIS changed the petition’s priority date from February 17, 2004 to January 28, 2011,
the date that Crescent Solutions filed its own labor certificate.
With this later priority date, Musunuru had to wait—and still
must wait—several more years for a visa to become available
so that his I-485 application can be adjudicated. Whereas, if
Crescent Solutions’ I-140 petition had retained VSG’s petition’s earlier priority date, a visa would be available now.
USCIS amended the priority date for Crescent Solutions’
petition because it had revoked VSG’s labor certification and
I-140 petition. In April 2011, the owners of VSG, two brothers,
each pleaded guilty to unlawfully hiring aliens and mail

Case: 15-1577

10

Document: 31

Filed: 08/03/2016

Pages: 24

No. 15-1577

fraud involving an unrelated H1-B visa for a different employee. As part of their plea deal, they were permanently debarred from participating in the labor certification program.
VSG dissolved about a month later. So it was that VSG was no
longer in business when USCIS sent VSG a notice of intent to
revoke the I-140 petition VSG filed on behalf of Musunuru.
Based on the owners’ convictions, USCIS revoked a number
of VSG’s I-140 petitions, Musunuru’s included, and invalidated the labor certifications upon which the petitions were
based. Being out of business, the company did not respond to
the notice. For the same reason, VSG did not appeal the decision when notified of its right to an administrative appeal.
USCIS sent neither Musunuru nor Crescent Solutions notice
of its intent to revoke VSG’s petition, so Musunuru did not
learn of the revocation until well after the deadline to administratively appeal the action.
On July 5, 2012, USCIS sent Crescent Solutions a notice of
intent to revoke the I-140 petition Crescent Solutions filed on
behalf of Musunuru. The notice asserted that, based on the
convictions of VSG’s owners, Musunuru’s work experience
with VSG was not genuine and therefore the approval of Crescent Solutions’ I-140 petition, which relied on that work experience, should be revoked. Crescent Solutions and Musunuru
responded to the notice and, by demonstrating that Musunuru’s employment experience with VSG was genuine, they
were able to overcome USCIS’s grounds for revoking the I-140
petition. Nevertheless, USCIS maintained the amended priority date of January 28, 2011, from Crescent Solutions’ petition,
rather than the earlier February 17, 2004 date from VSG’s petition.

Case: 15-1577

No. 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

11

On September 4, 2013, USCIS finally issued a decision on
Musunuru’s I-485 application, but it was not the decision for
which he had hoped. USCIS found that, since VSG’s I-140 petition was revoked, Musunuru’s application could not rely on
VSG’s earlier priority date. Instead, it could only rely on the
later priority date from Crescent Solutions’ petition. Consequently, USCIS denied Musunuru’s I-485 application for the
reason that there were no visas available for petitions with the
later priority date at the time he filed his application. 3
Musunuru moved for reconsideration of the decision. He
argued that the earlier decision to revoke VSG’s I-140 petition
for fraud was erroneous and that he should have been given
notice of USCIS’s intent to revoke and an opportunity to respond. Had he been given an opportunity, he argued, he
would have shown that VSG’s I-140 petition on his behalf was
not fraudulent (just as he had shown that his work experience
with VSG was not fraudulent when defending Crescent Solutions’ petition) and therefore he should have the benefit of
3

USCIS’s determination that no visas were available for Musunuru
was not accurate, At the time Musunuru filed his I-485 application, the
July 2007 Visa Bulletin listed his EB-3 category as current, meaning visas
were available to all EB-3 applicants regardless of priority date. In fact, for
whatever reason, the July 2007 Visa Bulletin listed all employment-based
categories except unskilled labor as current even though the previous
month’s bulletin had listed several of the categories with cut-off dates over
six years out. This resulted in a flood of I-485 applications (nearly 60,000
were filed before the bulletin’s effective date). As a result, USCIS refused
to accept any further applications until the beginning of the next fiscal
year. This decision led to much outcry and threatened litigation, so USCIS
agreed to accept applications under the July 2007 Visa Bulletin until August 17, 2007. Musunuru’s application was filed on August 6, 2007. Because all visa preference categories were current at the time Musunuru
filed his application, a visa was available to him at the time of filing.

Case: 15-1577

12

Document: 31

Filed: 08/03/2016

Pages: 24

No. 15-1577

VSG’s petition’s earlier priority date. He also argued that a
visa was available at the time he filed his I-485 application.
On November 7, 2013, USCIS granted Musunuru’s motion
to reconsider. USCIS found that, before it had revoked VSG’s
I-140 petition, Musunuru had filed a request to transfer his I485 application from VSG’s petition to Crescent Solutions’ petition. USCIS also found that a visa was available when he
filed his application. For these reasons, USCIS reinstated
Musunuru’s application to pending status with the priority
date from Crescent Solutions’ petition. As for Musunuru’s argument that the revocation of VSG’s I-140 petition was erroneous, USCIS found that Musunuru lacked standing to contest the matter because he was the beneficiary, not the petitioner. It relied on 8 C.F.R. § 103.3(a)(1)(iii)(B), which defines
an “affected party” for purposes of denials and appeals as
“the person or entity with legal standing in a proceeding. It
does not include the beneficiary of a visa petition.” Under the
current July 2016 Visa Bulletin, Musunuru needs a priority
date before November 1, 2004, for his I-485 application to be
adjudicated. That is over six years earlier than his present January 28, 2011, priority date.
Musunuru sought judicial review of USCIS’s actions under the Administrative Procedures Act (“APA”), 5 U.S.C. § 701
et seq., and declaratory and injunctive relief under 28 U.S.C.
§ 2201. Specifically, he alleged that, by revoking VSG’s petition without providing him notice and an opportunity to respond, USCIS violated its own notice regulations and his right
to procedural due process protected by the Fifth Amendment.
He also alleged that USCIS erred in concluding that he did not
have standing to challenge the revocation. USCIS moved to
dismiss for lack of jurisdiction under Rule 12(b)(1) and for

Case: 15-1577

Document: 31

Filed: 08/03/2016

No. 15-1577

Pages: 24

13

failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The district court denied USCIS’s motion under Rule
12(b)(1), but granted its motion under Rule 12(b)(6). The district court found that, although it lacked jurisdiction to review
USCIS’s discretionary decision to revoke VSG’s I-140 petition,
it did have jurisdiction to review whether USCIS correctly followed its nondiscretionary procedures when it made the decision. On the merits, the district court ruled that USCIS did
not err by failing to give Musunuru pre-revocation notice, nor
did USCIS err by determining that Musunuru lacked standing
to administratively challenge the revocation. 4 The regulations
give these procedural rights to the petitioner or affected party,
and the affected party is defined to not include the beneficiary
of a visa petition. Finally, the district court ruled that USCIS’s
actions did not violate Musunuru’s due process rights under
the Fifth Amendment because the decision to revoke an approved I-140 is left to USCIS’s discretion, and a person has no
liberty or property interest in obtaining purely discretionary
relief. Musunuru appeals.
II. Discussion
A. Standard of Review
We review a district court’s determination that it had jurisdiction de novo. Samirah v. O’Connell, 335 F.3d 545, 548 (7th
4

The district court mistakenly stated that Musunuru tried to appeal
the revocation decision within USCIS. The record does not reflect, and
Musunuru did not allege, that he administratively appealed the revocation. The record shows only that he sought to challenge the revocation in
his motion for reconsideration of USCIS’s decision to deny his I-485 application.

Case: 15-1577

Document: 31

14

Filed: 08/03/2016

Pages: 24

No. 15-1577

Cir. 2003). We also review de novo a district court’s dismissal
of a case under Rule 12(b)(6), accepting the well-pleaded allegations in the complaint as true and drawing all reasonable
inferences in favor of the plaintiff. Gen. Elec. Capital Corp. v.
Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A
court reviewing an agency’s action, findings, or conclusions
under the APA must set aside those it determines to be “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” or “without observance of procedure
required by law.” 5 U.S.C. §§ 706(2)(A), 706(2)(D); Sierra Club
v. Marita, 46 F.3d 606, 619 (7th Cir. 1995).
B. Jurisdiction
USCIS argues that the district court lacked jurisdiction to
decide the merits of Musunuru’s petition for review. It is correct that 8 U.S.C. § 1252(a)(2)(B)(ii) strips us of jurisdiction to
review “any … decision or action” that is “in the discretion of
the Attorney General or the Secretary of Homeland Security”
as specified by Subchapter II of U.S. Code Title 8, Chapter 12.
Furthermore, 8 U.S.C. § 1155, which falls under Subchapter II,
specifies that “[t]he Secretary of Homeland Security may, at
any time, for what he deems to be good and sufficient cause,
revoke the approval of any petition approved by him under
section 1154 of this title.” We have held that “the decision to
revoke a previously approved visa petition pursuant to 8
U.S.C. § 1155 is expressly left to the discretion of the [Secretary]. Therefore, 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial
review of such decisions.” El-Khader v. Monica, 366 F.3d 562,
568 (7th Cir. 2004).
However, in Calma v. Holder, 663 F.3d 868 (7th Cir. 2011),
we also held:

Case: 15-1577

Document: 31

Filed: 08/03/2016

No. 15-1577

Pages: 24

15

The court’s inability to review the underlying
claim for relief is, standing alone, an insufficient
basis to preclude review of a related procedural
motion. Instead, judicial review is foreclosed by
§ 1252(a)(2)(B)(i) only if the agency’s rationale
for denying the procedural request also establishes the petitioner’s inability to prevail on the
merits of his underlying claim.
Id. at 876 (internal quotation marks and citation omitted). Although Calma dealt with § 1252(a)(2)(B)(i), which prevents us
from reviewing decisions made under certain enumerated
sections of the INA, the same logic applies to
§ 1252(a)(2)(B)(ii). Here, we are reviewing USCIS’s application
of its mandatory procedures governing pre-revocation notice
and post-revocation challenges, 8 C.F.R. §§ 103.2(b)(16)(i),
103.3(a)(1)(iii)(B), & 205.2(b)–(c). USCIS’s rationale for denying Musunuru these procedures was that he is not the petitioner. That rationale, by itself, does not prevent Musunuru
from prevailing on the merits of his underlying claim, which
is that the I-140 petition filed on his behalf by VSG was not
fraudulent and should not have been revoked. Therefore, judicial review is not foreclosed. In other words, USCIS’s rationale concerns only the regulatory procedures and not the
merits of its decision to revoke the petition. Musunuru does
indeed contend that he can prevail on the merits of his underlying claim once he is given the opportunity to challenge the
revocation, but we are not reviewing that contention. On the
contrary, we are reviewing USCIS’s decision to deny him the
opportunity to challenge the revocation. Ergo, we have jurisdiction to review Musunuru’s claims. See Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255 (11th Cir.
2014).

Case: 15-1577

Document: 31

Filed: 08/03/2016

16

Pages: 24

No. 15-1577
C. Musunuru’s Statutory Claim

The regulations are clear on this point: It is the visa petitioner who must receive notice of USCIS’s intent to revoke an
I-140 petition, not the beneficiary. The pertinent regulation is
8 C.F.R. § 205.2, entitled “Revocation on notice.” It states that
the revocation of an I-140 petition “will be made only on notice
to the petitioner or self-petitioner,” and that the “petitioner or selfpetitioner must be given the opportunity to offer evidence in support of the petition or self-petition and in opposition to the
grounds alleged for revocation of the approval.” 8 C.F.R.
§ 205.2(b) (emphasis added). Likewise, § 103.2, upon which
Musunuru heavily relies, grants the visa petitioner, not the
beneficiary, notice of an impending adverse decision and an
opportunity to rebut derogatory information:
If the decision will be adverse to the applicant
or petitioner and is based on derogatory information considered by the Service and of which
the applicant or petitioner is unaware, he/she shall
be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except [for determinations of
statutory eligibility or discretionary determinations based on classified information].
8 C.F.R. § 103.2(b)(16)(i) (emphasis added). Section 103.2’s use
of the terms applicant and petitioner does not implicitly refer

Case: 15-1577

No. 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

17

to beneficiaries, because the regulation elsewhere distinguishes between applicants, petitioners, and beneficiaries. 8
C.F.R. § 103.2(b)(9). 5
Furthermore, the regulations are clear that a beneficiary is
not given an opportunity to challenge the revocation of an I140 petition through a motion to reconsider, though a petitioner is. The regulation governing motions to reconsider an
action or reopen a proceeding, § 103.5, describes motions to
reconsider as “filed by an applicant or petitioner” and allows
an official to reconsider a prior decision only for an “affected
party.” 8 C.F.R. § 103.5(a)(1)(i). Section 103.3 explicitly defines
“affected party” to not include a visa petition beneficiary:
“For purposes of this section and §§ 103.4 and 103.5 of this
part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not
include the beneficiary of a visa petition.” 8 C.F.R.
§ 103.3(a)(1)(iii)(B) (emphasis added).
USCIS contends that there is no ambiguity in these regulatory provisions. It argues further that, if there is any ambiguity, the regulations can be reasonably read to exclude visa
beneficiaries, such as Musunuru, from the provisions providing prior notice of visa revocations and an opportunity to
challenge those decisions. Therefore, according to USCIS, we
must defer to their interpretation. See Auer v. Robins, 519 U.S.
452, 461 (1997). On the other hand, Musunuru argues that
5

Musunuru relies on 8 C.F.R. § 103.2 because it applies to “the applicant or petitioner” and Musunuru is an applicant in terms of his I-485 application. This is a misreading of the regulation. Section 103.2 deals with
the submission and adjudication of benefits requests, not the revocation
of visa petitions, and being the applicant for his I-485 application does not
make him the petitioner for VSG’s I-140 petition.

Case: 15-1577

18

Document: 31

Filed: 08/03/2016

Pages: 24

No. 15-1577

USCIS’s interpretation is unreasonable because it conflicts
with the clear intent of Congress to give visa beneficiaries
greater rights and protections by enacting the AC21. Therefore, he says that USCIS’s interpretation is merely persuasive
authority to which we are not required to defer. See Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944).
According to Musunuru, after he took advantage of the
AC21’s porting provision, 8 U.S.C. § 1154(j), and moved to
Crescent Solutions, he became the only party with a vested
interest in the continued validity of the labor certification and
I-140 petition filed by VSG on his behalf. He also claims that
he was the only party with a vested interest in retaining the
earlier priority date from VSG’s petition. These interests,
Musunuru continues, make beneficiaries “affected parties”
under 8 C.F.R. § 103.3(a)(1)(iii)(B), thereby giving beneficiaries standing before USCIS. This standing then entitles beneficiaries to notice and an opportunity to respond to pending
revocation decisions. Thus, he argues, USCIS’s interpretation
of the regulations is arbitrary because it fails to account for the
change the AC21 worked upon the INA through § 1154(j). Finally, Musunuru claims that USCIS’s refusal to provide him
such notice and opportunity violated his Fifth Amendment
right to procedural due process.
Musunuru is correct that USCIS’s interpretation is unreasonable because it fails to take into account the changes the
AC21 wrought through the addition of the porting provision,
§ 1154(j). Yet, he is wrong about being the only party with a
vested interest in the continued validity of the I-140 petition
filed by VSG. Musunuru’s new employer, Crescent Solutions,
also had a vested interest in the petition’s validity. For a little
more than a year, until it filed its own I-140 petition, Crescent

Case: 15-1577

No. 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

19

Solutions depended on VSG’s petition to employ Musunuru.
In short, Crescent Solutions adopted VSG’s I-140 petition.
And, although Crescent Solutions eventually filed its own petition on behalf of Musunuru, it still relied on VSG’s petition
for that petition’s earlier priority date, which would have allowed the uncertainty surrounding Musunuru’s permanent
employment status to be removed much sooner. 6
An examination of the AC21 reveals Congress’s intent for
the successor employer to adopt the I-140 petition filed on behalf of the porting beneficiary. Section 1154(j) does not require
the beneficiary’s successor employer to file a new petition, but
allows the successor employer to rely on its predecessor’s petition. Contrast this with the AC21’s portability provision for
H1-B status, 7 which expressly requires a successor employer
to file a new H1-B petition before a nonimmigrant worker can
port to the employer: “A nonimmigrant alien [with H1-B status] is authorized to accept new employment upon the filing
by the prospective employer of a new petition on behalf of
6

Normally, a nonimmigrant worker is allowed to remain in the
United States on H1-B status for no more than six years. 8 U.S.C.
§ 1184(g)(4). To prevent American businesses from being disrupted by this
limitation, the AC21 included a provision that allows the granting of extensions to EB-1, EB-2, and EB-3 petition beneficiaries until their I-485 applications can be adjudicated. 8 U.S.C. § 1184 note (2000) (One-Time Protection Under Per Country Ceiling); Pub. L. 106-313, § 104(c) (Oct. 17,
2000); S. Rep. 106-260, 22 (2000). Even though an EB-2 petition beneficiary
may now remain in the United States for however long it takes for his I485 application to be adjudicated, his potential for permanent employability is nonetheless uncertain.
7 In addition to providing portability for I-140 petitions, the AC21 also

provided increased portability for H1-B visas. Pub. L. 106-313 § 105(a)
(amendment subsequently amended as 8 U.S.C. § 1184(n)).

Case: 15-1577

20

Document: 31

Filed: 08/03/2016

Pages: 24

No. 15-1577

[the] nonimmigrant … .” 8 U.S.C. § 1184(n)(1). There is no
such requirement before an I-140 beneficiary can port. Furthermore, the portability of an H1-B status is completely dependent on the successor employer’s new petition: “Employment authorization shall continue for such alien until the new
[H1-B] petition is adjudicated. If the new petition is denied,
such authorization shall cease.” Id. This is not the case for I140 petitions. Rather, the AC21 separates a ported petition, as
it relates to the new job, from the predecessor employer that
filed it. USCIS understands this; its Adjudicator’s Field Manual explains that, because of the AC21, a predecessor employer is not able to withdraw its petition once the worker has
ported: “if the [predecessor] employer withdraws the approved Form I-140 on or after the date that the Form I-485 has
been pending 180 days, the approved Form I-140 shall remain
valid under the provisions of §106(c) of AC21.” USCIS Adj. F.
Man. 20.2(c), Petition Validity (emphasis added). The only
time an adopted I-140 petition does not survive a predecessor
employer is when it is invalid from the start, that is, when it
is fraudulent. Id. (“If at any time the USCIS revokes approval
of the Form I-140 based on fraud, the alien will not be eligible
for the job flexibility provisions of §106(c) of AC21 and the
adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately.”). In such a case, neither will
the petition’s priority date survive. USCIS Adj. F. Man.
22.2(d)(1), Employment-Based Immigrant Visa Petitions
(Form I-140).
Clearly, then, Congress intends for the successor employer
to adopt the ported I-140 petition filed by the worker’s previous employer. Since “the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must

Case: 15-1577

No. 15-1577

Document: 31

Filed: 08/03/2016

Pages: 24

21

give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842–43 (1984). To give effect to Congress’s intent, the
regulations must be read to include the successor employer as
the petitioner. Thus, under 8 C.F.R. § 205.2, USCIS should
have given Crescent Solutions notice of their intent to revoke
the approval of VSG’s I-140 petition and provided Crescent
Solutions with an opportunity to offer evidence in support of
the petition and in opposition to the grounds alleged for revocation of the approval. Furthermore, Crescent Solutions was
the petitioner and an “affected party” under 8 U.S.C.
§ 103.3(a)(1)(iii)(B), and therefore possessed standing before
USCIS to file a motion to reconsider the revocation under 8
C.F.R. § 103.5(a)(1)(i).
The Second Circuit recently decided a case very similar to
ours: Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015). Mantena
was also an employee of VSG, which filed an I-140 petition on
her behalf. Like Musunuru, Mantena filed her I-485 application in response to the July 2007 Visa Bulletin and experienced
a long delay in its adjudication. She, too, took advantage of
the AC21’s portability provision and moved to another employer around the beginning of 2010. When USCIS revoked
VSG’s I-140 petition filed on her behalf, it also did so after
sending notice only to VSG. And, USCIS also relied on the exclusion of visa beneficiaries from the definition of “affected
party” in 8 C.F.R. § 103.3(a)(1)(iii)(B) to deny Mantena’s multiple motions for reconsideration. Id. at 725–727. Mantena’s
case differs from Musunuru’s only in that Mantena’s new employer never filed a new I-140 petition on her behalf, so that
she lost her I-485 application as well as her priority date. Id. at
726–27. The Second Circuit held:

Case: 15-1577

22

Document: 31

Filed: 08/03/2016

Pages: 24

No. 15-1577
USCIS acted inconsistently with the statutory
portability provisions of AC-21 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 AC-21, has in effect adopted
the original I-140 petition.

Id. at 736. The Second Circuit declined to hold which of the
two, the beneficiary or the successive employer, was entitled
to notice, and instead left it to the district court to decide on
remand. Id. We agree with our sister circuit that USCIS’s actions were inconsistent with the AC21’s statutory portability
provisions, but we hold further that it is the successor employer that is entitled to notice and an opportunity to respond. 8 More specifically, we hold that USCIS, by not treating

8

The Second Circuit declined to hold that USCIS is required to give
notice to the successor employer, despite the employer’s adoption of the
petition, because there is no regulation requiring the successive employer
to be identified to USCIS. Mantena, 809 F.3d at 736 n.14. We do not see the
lack of such a regulation as an impediment. There is also no regulation
requiring a beneficiary to inform USCIS that he desires, or has in fact,
ported to a new employer. Instead, USCIS has a non-regulatory procedure
for submitting a request to change employers under INA 204(j), 8 U.S.C.
§ 1154(j), which requires the identification of the successor employer:
The alien beneficiary … must send a letter from the new
intended permanent employer specifying the job title and
duties of the offered position, the minimum educational
or training requirements, the date the alien beneficiary
began (or will begin) employment and the offered salary
or wage. The letter must be issued and signed by the ap-

Case: 15-1577

Document: 31

Filed: 08/03/2016

No. 15-1577

Pages: 24

23

the successor employer as the de facto petitioner, failed to
comply with the applicable regulations in light of the statutory portability provisions of the AC21.
D. Musunuru’s Fifth Amendment Claim
This leaves us with Musunuru’s Fifth Amendment due
process claim, in which he argues that USCIS’s application of
the regulations denied him his right to procedural due process as protected by the Fifth Amendment. The district court
rightly held that the Fifth Amendment did not apply. Musunuru did not have a protected liberty or property interest in
the continued validity of VSG’s visa petition because the decision to revoke the petition was left to the discretion of USCIS.
See Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004) (“[I]n immigration proceedings, a petitioner has no liberty or property
interest in obtaining purely discretionary relief[.]”); Joseph v.
Landon, 679 F.2d 111, 115 (7th Cir. 1982) (holding that an alien
“d[oes] not have a vested right upon approval of [a] visa petition”).
Musunuru argues that when he changed employers in
compliance with the AC21’s portability provision, he was entitled, as a matter of right, to retain VSG’s approved visa petition and labor certification because the AC21 provides that a
ported visa petition and labor certification “shall remain valid
propriate authority within the new employer’s organization who is authorized to make or confirm an offer of permanent employment.
USCIS, Petition Filing and Processing Procedures for Form I-140, Immigrant
Petition for Alien Worker, https://www.uscis.gov/forms/petition-filing-andprocessing-procedures-form-i-140-immigrant-petition-alien-worker (last
visited August 3, 2016).

Case: 15-1577

Document: 31

Filed: 08/03/2016

24

Pages: 24

No. 15-1577

with respect to a new job.” 8 U.S.C. §§ 1154(j),
1182(a)(5)(A)(iv). Therefore, he argues, his ability to retain
VSG’s ported visa petition and labor certificate was not discretionary, and he had a protected property interest in their
continued validity.
Musunuru’s argument is unpersuasive because he misinterprets the language of the portability provisions. The AC21
does not make a ported I-140 petition and labor certificate
valid, it only ensures that they will “remain” valid despite the
worker leaving the job for which they were filed. Id. Nor does
the AC21 make a ported petition impervious to revocation.
USCIS may still revoke an I-140 petition at its discretion, 8
U.S.C. § 1155, provided, of course, that it follows the required
procedures.
III. Conclusion
Because USCIS applied the regulations in a manner inconsistent with the statutory portability provisions of the AC21
and should have provided to Musunuru’s current employer
notice and an opportunity to respond, we REVERSE and
REMAND.