Kurapati et al v. United States Citizenship and Immigration Service et al

Filing 13

ORDER: Defendants' Motion to Dismiss 5 is granted to the extent stated herein. This action is dismissed for lack of standing and lack of subject matter jurisdiction. The Clerk of Court is directed to close this case and terminate any pending motions as moot. Signed by Judge James S. Moody, Jr on 6/10/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SUNIL KUMAR KURAPATI and
BHARATHI MALLIDI,
Plaintiffs,
v.

Case No. 8:13-cv-68-T-30AEP

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss (Dkt. 5),
Plaintiffs’ Response in opposition (Dkt. 8), and Defendants’ Reply (Dkt. 12). The Court,
having reviewed the motion, response, reply, and being otherwise advised in the premises,
concludes that the motion should be granted and this case should be dismissed.
BACKGROUND
This is an immigration case. Plaintiff Sunil Kumar Kurapati and his spouse Plaintiff
Bharathi Mallidi are citizens of India. On May 10, 2004, Worldwide Software Services, Inc.
(“Worldwide”) filed an Application for Alien Employment Certification (Form ETA-750)
with the United States Department of Labor (“DOL”) on behalf of Kurapati, its employee
(hereinafter “Labor Certification No. 1"). On October 4, 2006, the DOL certified the
application.

On March 28, 2006, Worldwide filed a second Application for Permanent
Employment Certification (Form ETA-9089) with the DOL on behalf of Kurapati
(hereinafter “Labor Certification No. 2"). On April 14, 2006, the DOL certified the
application.
On May 15, 2006, Worldwide filed an Immigrant Petition for Alien Worker (USCIS
Form I-140) with Defendants on behalf of Kurapati as a member of the professions with an
advanced degree or of exceptional ability pursuant to Section 203(b)(2) of the Immigration
and Nationality Act (“INA”).

On June 12, 2006, Defendants approved the petition

(hereinafter “I-140 No. 1"). This accorded Kurapati a priority date of March 28, 2006.
On May 30, 2007, Worldwide filed a second Immigrant Petition for Alien Worker
(USCIS Form I-140) with Defendants on behalf of Kurapati as a “professional” under the
INA. On September 26, 2008, Defendants approved the petition (hereinafter “I-140 No. 2").
This accorded Kurapati a priority date of May 10, 2004.
On July 2007, Plaintiffs each filed an Application to Register Permanent Residence
or Adjust Status (USCIS Form I-485) with Defendants.
On April 27, 2009, Kurapati, through his prior counsel, notified Defendants that he
had elected to “port” to new employment pursuant to section 106(c) of the American
Competitiveness in the Twenty-First Century Act (“AC21") (P.L. 106-313), which provides
that an employment-based immigrant visa petition shall remain valid where an alien changes
jobs or employers if: (1) the alien’s Form I-485 has been pending for 180 days or more; and

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(2) the alien’s new job is in the same or similar occupational classification as the job for
which the certification or approval was initially made.
On July 5, 2012, Defendants issued a Notice of Intent to Revoke the Immigrant
Petition for Alien Worker Worldwide filed on Kurapati’s behalf on May 12, 2006 (I-140 No.
1). The notice informed Worldwide that, because it had willfully misrepresented a material
fact in its DOL Form ETA 9089, Worldwide’s I-140 was subject to revocation and its labor
certification on behalf of Kurapati was subject to invalidation. On July 5, 2012, Defendants
also issued a Notice of Intent to Revoke the Immigrant Petition for Alien Worker filed on
Kurapati’s behalf on May 30, 2007 (I-140 No. 2). This notice also informed Worldwide that
it had willfully misrepresented a material fact in its Form ETA 9089, listed such
misrepresentations, and indicated that Kurapati’s labor certification was subject to
revocation. Defendants served these notices on Worldwide, which had since ceased
operations.
On August 4, 2012, Kurapati, through prior counsel, filed a combined response to
each Notice of Intent to Revoke. Worldwide did not participate in the response. On
September 12, 2012, Defendants revoked both the I-140 No. 1 and the I-140 No. 2. The
revocations stated that Kurapati was not eligible for the benefits sought. The revocations
also pointed out numerous flaws in Worldwide’s I-140 petitions. The revocations stated, in
pertinent part that “[t]he petitioner failed to respond to USCIS’ Intent to Revoke the approval
of the I-140 petition by August 7, 2012, as requested. USCIS notes the attorney, on behalf
of the beneficiary, responded to the notice of Intent to Revoke. USCIS further notes, the
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petitioner or the attorney of record on behalf of the petitioner, must respond to USCIS’
Notice of Intent to Revoke.” (Dkt. 1-12).
On September 27, 2012, Kurapati, through prior counsel, filed administrative appeals
with Defendants regarding the decisions to revoke each of the previously approved I-140
petitions.
On October 20, 2012, Defendants denied Kurapati’s application for adjustment of
status stating that he was ineligible for adjustment of status as a matter of law because no
immigrant visa was immediately available to him as a result of the revocation of the
immigrant visa petition filed on his behalf. On October 20, 2012, Defendants also denied
Plaintiff Mallidi’s application for adjustment of status stating that she was ineligible for
adjustment of status as a matter of law due to the denial of Kurapati’s application and her
dependent status.
On January 8, 2013, Plaintiffs filed the instant action. On March 7, 2013, Defendants
rejected Kurapati’s appeals. Defendants now move to dismiss Plaintiffs’ complaint because
Plaintiffs do not have standing to challenge the revocations of Worldwide’s I-140 Petitions
and this Court lacks subject matter jurisdiction to review the revocations of Worldwide’s I140 Petitions.
LEGAL STANDARD FOR STANDING
The Eleventh Circuit has noted that “because a federal court is powerless to act
beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that
jurisdiction exists over a case....” Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).
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Standing is jurisdictional; therefore, if a court dismisses a case for lack of standing, it has the
same effect as a dismissal for lack of subject matter jurisdiction. See Stalley ex rel. U.S. v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per curiam). The
party “invoking federal jurisdiction bears the burden of establishing” standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
DISCUSSION
I.

Kurapati’s Standing
Defendants argue that Kurapati lacks standing to challenge the revocations of

Worldwide’s I-140s because, as only the beneficiary of the petitions, he is not an “affected
party”. The Court agrees. In the instant case, Worldwide is the petitioner. In other words,
Kurapati, although a beneficiary of the petition, does not have a right to enforce the petition
process. Accordingly, Kurapati does not have standing to challenge the revocation of
Worldwide’s I-140 petitions. Notably 8 C.F.R. § 103.3(a)(1)(iii)(B), which regulates
whether unfavorable decisions on applications are reviewable, states: “For purposes of this
section . . . affected party . . . means the person or entity with legal standing in a proceeding.
It does not include the beneficiary of a visa petition.” (emphasis added).
Other courts have applied the language in section 103.3 to revocations of I-140 visa
petitions. See Ibraimi v. Chertoff, 2008 WL 3821678, at *3 (D.N.J. Aug. 12, 2008); see also
Betancur v. Roark, 2012 WL 4862774, at *7 n.9 (D. Mass. Oct. 15, 2012) (stating that, “[a]s
beneficiary of the visa petition, [plaintiff] apparently would not have standing to appeal the
revocation of his I-140); Morris v. Gonzalez, 2007 WL 2740438, at *6 (E.D.P.A. Sept. 19,
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2007) (dismissing the alien beneficiary from a complaint seeking review of a revoked I-140
petition because the visa petitioner was the only party with standing).
In Ibraimi, the court dismissed an action filed by an alien beneficiary for review of
a revoked I-140 visa petition because the employer was the affected party. See 2008 WL
3821678, at *3. The court, citing 8 C.F.R. § 103.3(a)(1)(iii)(B), stated that “the affected
party is the entity with legal standing to file an appeal and it does not include the beneficiary
of the visa” Id. The court held that the employer “is the party that petitioned for the visa,
so it, not [the alien beneficiary], is considered the proper party having a personal stake in the
outcome sufficient to warrant such invocation of federal court jurisdiction.” Id.
The Court is not persuaded by Plaintiffs’ argument that the portability provision
codified at 8 U.S.C. § 1154(j), implicitly provided aliens such as Kurapati with the right to
contest any future claims of ineligibility resulting from any irregularities in the immigrant
visa petition process. Notably, Plaintiffs do not allege that Defendants denied Plaintiffs’ I485s because Kurapati changed jobs. And the record reflects that the revocations were based
on flaws in the petitions on Worldwide’s part. Accordingly, AC21's Portability Provision
does not confer standing upon Plaintiffs. See George v. Napolitano, 693 F. Supp. 2d 125,
130 (D.D.C. 2010) (finding that beneficiary lacked standing to challenge denial of an I-140
petition even where he had “ported” the petition to a new employer).
Here, Worldwide filed the I-140 petitions. Thus, as the “affected party”, Worldwide
is the only person that possesses standing to challenge the revocation of the I-140 petitions.

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Accordingly, Kurapati does not have standing to pursue this action and this action must be
dismissed.
II.

The Court’s Power to Review Discretionary Decisions
Defendants also argue that 8 U.S.C. § 1252(a)(2)(B)(ii) divests federal courts of

subject-matter jurisdiction to review discretionary decisions made by the Secretary of the
Department of Homeland Security. The Court agrees that section 1252(a)(2)(B)(ii) divests
the Court of jurisdiction to consider Plaintiffs’ claims.
Section 1252(a)(2)(B)(ii) states that: “[N]o court shall have jurisdiction to review . .
. any other decision or action of . . . the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the discretion of . . . the Secretary of
Homeland Security, other than the granting of relief under section 1158(a) of this title.”1
Furthermore, 8 U.S.C. § 1155 provides: “The 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.” Section 1154(a)(1)(F) specifically refers
to employers desiring to classify aliens under 8 U.S.C. § 1153(b)(2) and (3).
Worldwide filed two I-140 petitions on Kurapati’s behalf; these two employmentbased visa petitions are included within 8 U.S.C. § 1154(a)(1)(F). Also, the revocation of
Worldwide’s I-140s was under 8 U.S.C. § 1155. See Punathil v. Heinauer, 876 F. Supp. 2d
1294 (M.D. Fla. 2012) (“It is undisputed that the approval of Plaintiff’s Form I-140 petition

1

8 U.S.C. § 1158(a) relates to an alien’s authority to apply for asylum, and is inapplicable

here.
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was revoked pursuant to 8 U.S.C. § 1155.”). In Punathil, the court dismissed an action
challenging revocation of an I-140 visa petition. Id. at 1298. The court stated: “The majority
of circuits, including the Eleventh Circuit . . ., have determined that the Secretary’s decision
to revoke approval of a Form I-140 petition under § 1155 is ‘discretionary,’ and thus immune
from judicial review pursuant to § 1252(a)(2)(B)(ii).” Id. (citing Sands v. U.S. Dep’t of
Homeland Sec., 308 Fed.Appx. 418, 419-20 (11th Cir. 2009)); see also Karpeeva v. U.S.
Dep’t of Homeland Sec. Citizenship & Immigration Servs., 432 Fed.Appx. 919, 925 (11th
Cir. 2011).
Plaintiffs argue that they are not seeking review of the revocation of Worldwide’s I140 petitions. Rather, Kurapati seeks review of the issue of whether he was entitled to prerevocation notice and an opportunity to be heard under the Portability Provisions of AC21.
The Court disagrees that this distinction confers jurisdiction on the Court because the
relevant statutes and regulations, as discussed herein, do not require notice of the revocation
of an I-140 petition to beneficiaries.
Accordingly, the Court concludes that the alleged facts establish that the revocation
of Worldwide’s I-140s were decisions within the discretion of the Secretary of the
Department of Homeland Security that are immune from this Court’s review. Accordingly,
the Court lacks jurisdiction to consider Plaintiffs’ claims.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants’ Motion to Dismiss (Dkt. 5) is granted to the extent stated herein.

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2.

This action is dismissed for lack of standing and lack of subject matter
jurisdiction.

3.

The Clerk of Court is directed to close this case and terminate any pending
motions as moot.

DONE and ORDERED in Tampa, Florida on June 10, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2013\13-cv-68.mtdismiss.frm

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