Patel et al v. Napolitano et al

Filing 43

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on January 28, 2014. Mailed notice (ph, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHEEKU, INC., d/b/a DUNKIN DONUTS,
and KAUSHIKKUMAR A. PATEL,
Plaintiffs,
v.
JANET NAPOLITANO, Secretary,
U.S. Department of Homeland Security;
ALEJANDRO MAYORKAS, Director, U. S.
Citizenship & Immigration Services; and
ERIC H. HOLDER, JR., Attorney General of
the United States,
Defendants.

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Case No. 13-cv-1600
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiffs, Cheeku, Inc., d/b/a Dunkin’ Donuts, (“Cheeku”) and Kaushikkumar A. Patel,
have challenged the denial of an employment-based immigrant visa petition by the United States
Citizenship and Immigration Services (“USCIS”), after the USCIS denied the petition as moot
because the employer who filed the petition on Patel’s behalf dissolved in bankruptcy while the
matter was pending. Plaintiffs have moved for partial summary judgment, arguing that there is
no genuine issue of material fact as to the original petitioner’s ability to pay the prevailing wage
or as to Plaintiffs’ standing to challenge the denial of the petition. Defendants have cross-moved
for summary judgment, arguing that there are no genuine issues of material fact and that, as a
matter of law, the USCIS correctly denied the visa petition. For the reasons discussed below,
Defendants’ Motion [39] is granted; Plaintiffs’ Motion is denied as moot [17, 18, 35]; and the
USCIS’s decision is affirmed.

BACKGROUND
The facts in this case are, for the most part, undisputed. Kaushikkumar A. Patel, a native
and citizen of India, entered the United States without inspection on or about October 3, 1994
near Brownsville, Texas. (Defendants’ Rule 56.1 Statement of Uncontested Facts (“SOF”) ¶ 1.)
Patel was apprehended by Border Patrol agents on October 5, 1994, at which time Patel stated he
had flown from India to Costa Rica, had traveled north to the U.S. border, and was going to
Tampa, Florida to seek employment. (SOF ¶ 2.) Patel was placed in deportation proceedings
and ordered deported in absentia on January 13, 1995, by an immigration judge in Texas. (SOF
¶ 2.)
On April 30, 2004, Tejany & Tejany, Inc. (“Tejany”) filed an I-140 immigrant visa
petition (the “visa petition”) on Patel’s behalf, seeking to employ him as the manager of its
Dunkin’ Donuts restaurant/bakery in Woodstock, Illinois. (SOF ¶ 3.) The visa petition was filed
for the “skilled worker” classification, required the employee to have two years of prior
experience, and had a priority date of January 1998, which was established when Tejany filed the
labor certification with the Department of Labor. (Pl.’s Rule 56.1 Statement of Uncontested
Facts (“PSOF”) ¶ 2.) Concurrently with the visa petition, Patel filed an I-485 status adjustment
application. (SOF ¶ 3.)
On November 14, 2008, Tejany was dissolved as a business entity. (PSOF ¶ 3.) Patel
then began working as a store manager for Cheeku, which is a separate corporation with no
connection to Tejany. (PSOF ¶ 3.) On September 25, 2009, the USCIS issued a Request for
Evidence to Tejany, relating to Patel’s work experience. (PSOF ¶ 5.) On November 6, 2009, the
USCIS issued a second Request for Evidence to Tejany, requesting evidence of Tejany’s ability

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to pay Patel’s offered wage and documentation of Patel’s work experience. (SOF ¶ 4.) The
USCIS also questioned the sufficiency of the experience letter submitted by Tejany in support of
the visa petition, on the basis that the letter indicated Patel worked as a supervisor at a Dunkin’
Donuts restaurant in St. Louis, Missouri, from September 1994 until October 1996. (SOF ¶ 4.)
This letter conflicted with immigration records showing Patel first entered the U.S. without
inspection on October 3, 1994, one month earlier than he allegedly started work in St. Louis.
(SOF ¶ 4.) Tejany, which had been dissolved by this date, did not respond to either Request for
Evidence. (SOF ¶ 4.) However, Cheeku and Patel, by their counsel, submitted materials. (SOF
¶ 5.)
On December 31, 2009, the USCIS denied the visa petition, finding that the petitioner,
Tejany, had not met its burden of demonstrating the beneficiary, Patel, met the minimum
requirements at the time the certification was filed and also that Tejany had failed to establish its
ability to pay the proffered wage since filing the visa petition. (SOF ¶ 7; see also Administrative
Record (“AR”) pp. 369-370.) The USCIS noted, among other things, the discrepancy between
Patel’s work experience starting in September 1994 and the record of Patel’s apprehension on the
United States border in October 1994.
On February 1, 2010, Cheeku filed an appeal with the USCIS’s Administrative Office
(“AAO”). (SOF ¶ 8.) On November 19, 2012, the AAO dismissed the appeal as moot because:
(1) Patel and Cheeku lacked standing to appeal; (2) the petitioner, Tejany & Tejany, Inc., was
involuntarily dissolved, and a bona fide job offer cannot exist from an employer who is no longer
in business; and (3) that Patel was not permitted to port the visa petition to Cheeku. (SOF ¶ 11;
see also AR 80-85.) Patel and Cheeku now challenge the denial of the visa petition, arguing that

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Cheeku should have been substituted as Patel’s employer.
LEGAL STANDARD
Under the Administrative Procedure Act (“APA”), a court reviewing an administrative
agency’s decision may set aside agency actions, findings, and conclusions that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A); see also Abraham Lincoln Memorial Hosp. v. Sebelius, 698 F.3d 536, 547 (7th Cir.
2012)). Final decisions of administrative agencies are given deference by district courts. A
court must consider whether an agency’s decision was “based on a consideration of the relevant
factors and whether there has been a clear error of judgment. Nevertheless, the ultimate standard
of review is a narrow one, and the district court may not substitute its judgment for that of the
agency.” Secretary of Labor of U.S. v. Farino, 490 F.2d 885, 889 (7th Cir. 1973) (internal
citation and quotation marks omitted); see also Ind. Forest Alliance, Inc. v. U.S. Forest Serv.,
325 F.3d 851, 858–59 (7th Cir. 2003).
ANALYSIS
Standing
As a threshold matter, it must be determined whether Patel or Cheeku has standing to
challenge the denial of the visa petition. The AAO determined that neither Cheeku nor Patel had
standing to appeal based on regulatory language found in 8 C.F.R. § 103.3(a)(1)(iii)(B), which
provides that only the petitioner, and not the beneficiary, has administrative standing to pursue
the appeal of a denial. However, the AAO’s decision was based on the ability to appeal a denial
of a visa petition within the INS, rather than in federal court. See Ghaly v. INS, 48 F.3d 1426,
1434 n.6 (7th Cir. 1995). In contrast, Section 10 of the APA, 5 U.S.C. § 702, provides any

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person “suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute” has the right to seek federal court review
of the agency action. See also Construction and Design Co. v. USCIS, 563 F.3d 593, 597-98
(7th Cir. 2009); Ghaly, 48 F.3d at 1434 n.6; Stenographic Machines, Inc. v. Regional
Administrator for Employment & Training, 577 F.2d 521, 527-28 (7th Cir.1978); Taneja v.
Smith, 795 F.2d 355, 358 n.7 (4th Cir. 1986); Sanchez-Trujillo v. INS, 620 F. Supp. 1361, 1363
(W.D.N.C. 1985) (noting that “[t]he immigrant beneficiary is more than just a mere onlooker; it
is [his] own status that is at stake when the agency takes action on a preference classification
petition”).
Defendants appear to concede, and this Court agrees, that under 5 U.S.C. § 702 and the
line of cases cited above, Patel has standing to contest the denial of the petition. See Defs’ Mem.
in Supp. of Mot. for Sum. Judgment, at 14. However, Defendants contend that Patel does not
have constitutional standing because his alleged injury would not be redressed by a favorable
decision in this case because Tejany has dissolved, citing Lujan v. Defenders of Wildlife, 504
U.S. 555 (2012). However, if Patel prevailed on his argument that he could port the original
Tejany visa petition to Cheeku, Patel could receive a favorable USCIS decision. Therefore, Patel
has constitutional standing.

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Cheeku, however, does not appear to have standing. It is undisputed that Cheeku is not
the successor-in-interest to Tejany or otherwise legally related to Tejany. 1 It is also undisputed
that Cheeku has not filed its own visa petition on behalf of Patel. Although Cheeku argues it will
be harmed by the denial of Patel’s visa petition because it is currently Patel’s employer, this is
insufficient to establish Cheeku’s legal injury. Indeed, Cheeku fails to cite any case supporting
that an employer who is unrelated to the petitioner has standing to challenge the denial of a visa
petition. As an unrelated party to Tejany, Cheeku has not suffered a “legal wrong” or been
“adversely affected” because of the agency’s decision or action and, therefore, cannot seek
review in federal court under 5 U.S.C. § 702. See Ghaly, 48 F.3d at 1434 n.6. However, as a
practical matter, Cheeku’s lack of standing is of no consequence given Patel’s standing. The
merits of the arguments put forth by both Plaintiffs are addressed below.
The Denial of the Visa Petition
Next, this Court must examine whether the denial of the visa petition was arbitrary and
capricious. See 5 U.S.C. § 706(2). The burden of proof rests on the visa applicant to establish
that the beneficiary is eligible to receive a visa. 8 U.S.C. § 1361; see also Amglo Kemlite Labs.
v. BCIS, No. 07 C 945, 2008 WL 687223 at *3 (N.D. Ill. Mar. 10, 2008). Plaintiffs argue that the
USCIS incorrectly concluded that the visa petition was not portable to a new employer. In
support, Plaintiffs cite to an USCIS memoranda, signed by William Yates on May 12, 2005, and

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The regulations permit a successor-in-interest to be substituted when the petitioning
employer ceases to exist. See USCIS policy memorandum “Successor-in-Interest Determination
of Form I-140 Petitions,” Donald Neufeld, August 6, 2009, published on AILA InfoNet at Doc.
No. 09090362 (providing guidance on successor-in-interest determinations). However, although
the regulations contemplate that a petition can be transferred to a valid successor-in-interest, they
do not provide for an unrelated party to step in the shoes of a previous petitioner. Moreover, no
such transfer was sought here.
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reissued on December 27, 2005, which states that: “if the I-140 petition is still pending after 180
days . . . USCIS officers are required to determine whether the I-140 is or would have been
approvable had it been adjudicated within 180 days. If the petition is approvable but for an
ability to pay issues or any other issue relating to a time after the filing of the petition, USCIS
officers are directed to approve the petition.” See Pls.’ Resp. at 3; see also Interim Guidance for
Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B
Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000
(AC21) (Public Law 106-313) at 3 (available at http://www.uscis.gov/sites/default/files/
USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%2019982008/2005/ac21intrm051205.pdf, last visited 12/31/13).
Section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j), provides that a
visa petition “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). In its de novo review of the USCIS’s denial of
the visa petition, the AAO directly addressed the Yates memoranda cited by Plaintiffs and stated
that it had been superseded by Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010). (AR 83.) In
Matter of Al Wazzan, the AAO determined that for a visa petition to remain valid with respect to
a new job, as provided in 8 U.S.C. § 1154(j), the petition must have been “valid” to begin with in
order to “remain valid for a new job.” 25 I&N Dec. at 359. The AAO in Matter of Al Wazzan
further determined that to be valid, the petition must have been “approved” by the USCIS and
also that an un-adjudicated visa petition is not made valid merely through the passage of 180
days. Id. Likewise, in Herrera v. USCIS, 571 F.3d 881, 887 (9th Cir. 2009), the Ninth Circuit

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determined that for a visa petition to remain valid for purposes of portability, it “must have been
valid from the start.”
In denying the instant visa petition, the AAO explained that the statutory language of
8 U.S.C. § 1154(j) provides no benefit or right for a new employer to “substitute” itself for the
previous petitioner. 2 (AR 84.) Rather, as the AAO explained, the statute “simply permits the
beneficiary to change jobs and remain eligible to adjust based on a prior approved petition if the
processing times reach or exceed 180 days.” (AR 85.) Because the visa petition submitted by
Tejany had never been approved, the visa petition was never “valid” to begin with and, therefore,
could not be ported to Cheeku. (AR 84.) Indeed, Plaintiffs do not contest that the visa petition
was never approved.
The Court finds that the denial of the visa petition submitted on behalf of Patel was not
arbitrary or capricious. The USCIS and the AAO did not make a clear error judgment in
determining that the unapproved visa petition could not be ported to Cheeku by Patel. As
pointed out by Defendants and the AAO, it would subvert the U.S. immigration statutory scheme
if a visa petition became “valid” simply because it had been pending for more than 180 days.
Rather, under the statutory language of 8 U.S.C. § 1154(j), the petition must be “valid” to begin
with in order to be ported. As this is a purely legal issue without any disputed factual issues,
summary judgment is appropriately granted in favor of Defendants. Consequently, the final
decision of the USCIS to deny the I-140 immigrant visa petition submitted by Tejany on behalf
of Patel is affirmed.

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This would appear to directly conflict with the successor-in-interest procedure discussed

above.
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CONCLUSION
Defendants’ Motion for Summary Judgment [39] is granted; Plaintiffs’ Motion is denied
as moot [17, 18, 35]; and the USCIS’s decision is affirmed.

Date:__January 28, 2014

_____________________________
JOHN W. DARRAH
United States District Court Judge

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