PATEL v. United States Citizenship and Immigration Services
Filing
15
OPINION AND ORDER GRANTING 5 Defendant's Motion to Dismiss. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHASHIKANT PATEL,
v.
Plaintiff,
Case No. 15-11353
HON. TERRENCE G. BERG
HON. STEPHANIE D. DAVIS
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendant.
/
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS (DKT. 5)
In this case, a non-U.S. citizen is asking the Court to overturn a decision by
the United States Citizenship and Immigration Services (“USCIS”). Specifically,
Plaintiff Shashikant Patel challenges as arbitrary and capricious the decision by
Defendant USCIS to deny his application for employment authorization. On
February 2, 2015, Plaintiff filed a Form I-765 seeking “permission to accept
employment” on the ground that he had a Form I-485 application for adjustment of
immigration status pending before the Executive Office of Immigration Review. (See
Dkt. 5, Ex. F.) On March 16, 2015, USCIS denied Plaintiff’s Form I-765 application
for failure to establish eligibility. (See Dkt. 5, Exs. F, G.) Plaintiff filed this
complaint on April 14, 2015 seeking judicial review of the decision pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. § 702. (Dkt. 1, ¶ 1.)
Defendant now moves to dismiss under Federal Rule of Civil Procedure
12(b)(1), arguing that Plaintiff lacks constitutional standing, without which the
Court has no subject matter jurisdiction over his claim; and under Federal Rule of
Civil Procedure 12(b)(6), asserting that the complaint fails to state a claim upon
which relief can be granted. (See Dkt. 5.) The motion is fully briefed and a hearing
was held in this matter on November 18, 2015 in Detroit, Michigan. (See Dkts. 9,
10, 13.) After careful review of the entire record, the briefs of the parties, their
arguments at the hearing, and the relevant legal authorities, the Court concludes
that Defendant’s motion to dismiss (Dkt. 5) should be GRANTED for the reasons
set out below.
I.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff is a native and citizen of India who currently lives in North
Muskegon, Michigan. (Dkt. 1, ¶ 2.) He first entered the United States in October
1999 as a B-2 nonimmigrant authorized to remain in the country for one year, until
October 2000. (Dkt. 5, Ex. A, p. 2.) However, Plaintiff overstayed his visa and began
to seek employment. (Id.)
A. Obtaining Employment-Based Permanent Residency
Under the Immigration and Nationality Act (“INA”), a non-citizen skilled
worker can seek to become a permanent resident of the United States by obtaining
an employment visa through a three-step process which requires action by both the
non-citizen and his or her employer. See Matovski v. Gonzalez, 492 F.3d 722, 726–27
(6th Cir. 2007). The first two steps must be taken by the employer. First, the
employer must file an application with the Department of Labor (“DOL”) for labor
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certification stating that there are insufficient qualified, able, and willing U.S.
workers to fill the position. 8 U.S.C. § 1153(b)(3)(C); 1182(a)(5)(A)(i)(I).
Second, once the labor certification has been obtained, the employer must file
a petition with USCIS for an employment visa on behalf of the non-citizen
employee. This petition for an employment visa is called a Form I-140 petition. 8
U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(a). A Form I-140 petition filed on behalf of a
skilled worked will be approved if, among other things, the employer has obtained
valid labor certification and the non-citizen employee has at least two years of
relevant training or experience. 8 U.S.C. § 1153(b)(3)(A)(i); 8 C.F.R. § 204.5(l).
The third and final step must be taken by the individual seeking
employment. While the employer’s Form I–140 petition is pending (or after it has
been approved), the non-citizen employee must file a Form I-485 to apply to adjust
his or her status to that of a permanent resident. 8 U.S.C. § 1255; 8 C.F.R. §
245.2(a)(3)(ii). It is possible for the non-citizen to file the Form I-485 application (for
adjustment of status) at the same time that the Form I-140 petition (for
employment visa) is filed.1
Once the employer and the applicant have completed all three steps, two
conditions must be met for USCIS approval: the applicant “must be eligible to
receive an immigrant visa and is admissible to the United States for permanent
In July 2002, USCIS created a rule that allows “concurrent filing” of the Form I-140 Petition for
Alien Worker and the Form I-485 Adjustment of Status Application. See 67 Fed. Reg. 49,561 (July
31, 2002), codified at 8 C.F.R. § 245.2(a)(2)(i)(B). Previously, the Form I-140 had to be approved
before a Form I-485 could be filed. Plaintiff took advantage of the concurrent-filing rule in this case.
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residence”2 and “an immigrant visa is immediately available to him at the time his
application is filed.”3 8 U.S.C. § 1255(a). Approval of the I-485 application for
adjustment of status is therefore contingent upon approval of the employer’s I–140
petition for an employment visa. See 8 C.F.R. § 245.2(a)(2)(i).
B. Plaintiff’s Applications for Employment-Based Permanent Residency
Plaintiff has twice attempted to obtain permanent resident status through
this process. In 2006, employer Deluxe Inn, seeking to hire Plaintiff as a lodging
manager, applied and was granted labor certification from the DOL. (Dkt. 1, ¶ 6.)
On August 16, 2007, Deluxe Inn filed a Form I-140 petition for an employment visa
on Plaintiff’s behalf and Plaintiff filed a Form I-485 application to adjust his
residential status. (Id. at ¶ 7-9.) USCIS denied Deluxe Inn’s Form I-140 petition on
April 30, 2009 and, as a result, Plaintiff’s Form I-485 application was denied on
June 10, 2009. (Id. at ¶¶ 9, 10.) The Department of Homeland Security initiated
removal proceedings against Plaintiff on August 30, 2009. (Id. at ¶ 11.)
On February 3, 2010, while removal proceedings were pending, Peshtal, Inc.
filed a Form I-140 petition on Plaintiff’s behalf. (Id. at ¶ 12.) Peshtal, Inc., like
An applicant can be “eligible to receive an immigrant visa” through a family member, a job offer or
employment, refugee or asylum status, or a number of other special provisions. See USCIS, Green
Card Eligibility, https://www.uscis.gov/green-card/green-card-processes-and-procedures/green-cardeligibility (last updated: Mar. 30, 2011). Whether an applicant is admissible depends on the
particular category under which the applicant seeks to immigrate. Id. Possible grounds for
inadmissibility could be health, criminal, or security-related. Id.
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Where an applicant like Plaintiff seeks to immigrate under an employment-based preference
category, visa availability is determined by: (1) the applicant’s priority date assigned based on the
immigrant petition filing date or the date the Department of Labor accepts an application for a labor
certification; (2) the preference category the applicant is immigrating under; and (3) the country,
usually the applicant’s country of citizenship, the visa will be charged to. See USCIS, Green Card
Eligibility, https://www.uscis.gov/green-card/green-card-processes-and-procedures/green-cardeligibility (last updated: Mar. 30, 2011). Taken together, the three pieces of information determine
how long an applicant will wait for a visa to be “immediately available”. Id.
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Deluxe Inn, sought to hire Plaintiff as a lodging manager. (Id.) Peshtal, Inc.,
however, did not obtain its own labor certification before filing the Form I-140
petition; instead, Peshtal, Inc. attached the labor certification obtained by Deluxe
Inn in 2006, effectively skipping step one. (See Dkt. 5, Ex. B, p. 3.) When Plaintiff
appeared in immigration court that same day, he requested and was granted a
continuance to allow USCIS time to consider Peshtal, Inc.’s newly-filed Form I-140
petition. (Dkt. 5, Ex. A, p. 3.)
On July 26, 2010, USCIS denied Peshtal, Inc.’s Form I-140 petition because it
had no supporting labor certification. (Dkt. 1, ¶ 13.) Over the next nine months,
Plaintiff requested and was granted additional continuances by the immigration
judge until his April 13, 2011 hearing, when the immigration judge ordered Plaintiff
removed to India after deciding that no good cause existed to delay the proceedings
any further. (Dkt. 5, Ex. A, pp. 4-7.) The immigration judge based her decision to
remove Plaintiff in part on “a determination that [Plaintiff] is not an eligible
beneficiary of an intended employment-based immigrant visa petition.” (Id. at 5.)
The reason Plaintiff was not an eligible beneficiary of an employment-based
immigrant visa petition was because, as stated, USCIS denied Peshtal, Inc.’s Form
I-140 petition for an employment visa on July 26, 2010 because Peshtal, Inc. had
not completed step one of the process by obtaining its own labor certification prior to
filing the petition.4 (Dkt. 1, ¶ 13.) In short, Plaintiff, since beginning the process to
Plaintiff has challenged this decision to deny Peshtal Inc.’s Form I-140 petition as arbitrary and
capricious in a lawsuit pending in the Western District of Michigan. Patel v. United States
Citizenship and Immigration Services, No. 10-cv-1047, (W.D. Mich.), Dkt. 1. Plaintiff’s May 13, 2014
motion for summary judgment remains pending as of the date of this Order. Id., Dkts. 25-27.
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become a permanent resident, has had two Form I-140 petitions filed on his behalf
(Deluxe Inn and Peshtal, Inc), and has filed one Form I-485 application
(concurrently with Deluxe Inn’s petition). Neither of the two Form I-140 petitions
for employment visas filed on Plaintiff’s behalf has ever been approved, and
Plaintiff has had no Form I-140 petition pending since July 26, 2010. (See id. at ¶¶
9, 13.)
On August 5, 2010, ten days after USCIS denied Peshtal, Inc.’s Form I-140
petition, Plaintiff filed notice with the immigration court that he was renewing his
previously-denied 2007 Form I-485 application for adjustment of status.5 (Dkt. 5,
Ex. B.) The immigration judge did not address Plaintiff’s Form I-485 application at
the April 13, 2011 hearing, however; the judge held that she had no jurisdiction
over whether to grant Plaintiff an immigrant visa, stating that:
[I]n this case, there has been a determination that [Plaintiff] is not an
eligible beneficiary of an intended employment-based immigrant visa
petition. There is no visa. There is simply a labor certification which
has not been allowed to transfer from one petitioner to another…6
(Dkt. 5, Ex. A, pp. 5-6.)
A Form I-485 application that has been denied can be renewed during removal proceedings by
applicants who are eligible or become eligible for adjustment of status. See 8 C.F.R. § 1245.2(a)(5)(ii)
and (a)(2)(i)(A). Typically, a Form I-485 application is filed with USCIS, but if removal proceedings
are pending, the immigration judge “has exclusive authority to adjudicate any application for
adjustment of status.” 8 C.F.R. § 1245.2(a)(1)(i). “Petitioning for adjustment of status is a defense in
removal proceedings.” Luevano v. Holder, 660 F.3d 1207, 1214 (10th Cir. 2011); see also Lacey v.
Gonzales, 499 F.3d 514, 519 (6th Cir. 2007).
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While immigration judges have jurisdiction to determine whether there has been an equivalent
employment change under INA § 204(j), see Matter of Al Wazzan, 25 I. & N. Dec. 359, 362 (2010),
they do not have jurisdiction to reinstate a properly-revoked visa petition under 8 U.S.C. § 1155, see
Herrera v. U.S. Citizenship and Immigration Servs., 571 F.3d 881, 888 (9th Cir. 2009) (noting that
Congress did not intend § 204(j) to constrain the agency’s revocation authority).
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Plaintiff appealed the immigration judge’s decision to the Board of
Immigration Appeals (“BIA”), but the appeal was dismissed on October 19, 2012.7
(Dkt. 5, Ex. C.) Plaintiff then appealed the BIA’s determination to the Sixth Circuit.
(Dkt. 5, Ex. D.) Before the Sixth Circuit could reach the merits of Plaintiff’s claim,
however, the Attorney General sought remand of the case to the BIA for
administrative closure. (Id. at 2.) The motion was granted and the case remanded
on January 8, 2014. (Id.) Plaintiff’s removal proceedings were administratively
closed on April 7, 2014 but can be reinstated by either party at any time. (Dkt. 5,
Ex. E.)
C. Plaintiff’s Application for Work Authorization (Form I-765)
On February 2, 2015, approximately ten months after removal proceedings
against him had been administratively closed, Plaintiff filed a Form I-765
application for employment authorization. (Dkt. 5, Ex. F.) A Form I-765 application
for employment authorization provides a means for non-citizens who have either a
non-immigrant visa or a pending visa application to apply for temporary
employment during their adjudication period.8
On appeal, Plaintiff’s Counsel did not challenge the immigration judge’s refusal to consider
Plaintiff’s renewed Form I-485 application. (See Dkt. 5, Ex. C, p. 4.) The only issue Plaintiff’s
Counsel raised on appeal “is whether the Immigration Judge erred in denying [Plaintiff’s] request for
an indefinite continuance to await the decision of the District Court (W.D. MI) regarding the review
of a denial by [USCIS] of [Plaintiff’s] employment-based visa petition (Form I-140).” (Id.) At the
hearing on this motion, Plaintiff’s Counsel stated that he did not raise the issue of the renewed Form
I-485 application with the immigration judge during Plaintiff’s removal proceedings either.
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Form I-765 is used by foreign nationals in the United States with certain nonimmigrant visas or
pending immigration applications that allow for temporary employment during their adjudication
period. See United States Citizenship and Immigration Services, I-765, Application for Employment
Authorization, http://www.uscis.gov/i-765 (last updated Sept. 21, 2015). An applicant such as
Plaintiff who has filed for adjustment of status must include with his or her Form I-765 “a copy of
the receipt notice or other evidence that your Form I-485, Application for Permanent Residence or
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Plaintiff included with his application a cover letter asserting that he is “fully
eligible for employment authorization in the (c)(9) category”9 because: (1) he
properly renewed his Form I-485 application for adjustment of status with the
immigration court in Detroit; and (2) this Form I-485 application remains pending
with the Executive Office of Administrative Review because “there has not been a
decision issued on [the application]” or a “final decision in his removal proceedings.”
(Id. at 3-4.) Plaintiff based the renewal of his Form I-485 application on the Deluxe
Inn Form I-140 petition that USCIS had denied in 2009. (Dkt. 5, Ex. B, p. 3.)
Plaintiff’s Form I-765 application was denied without prejudice on March 16,
2015 by USCIS. (Dkt. 5, Ex. G.) USCIS explained that Plaintiff’s application had to
be denied pursuant to 8 C.F.R. § 274a.12(c)(9) because his “application for
adjustment of status [Form I-485] to that of lawful permanent resident has been
denied and therefore, is no longer pending before USCIS.” (Id.) In other words,
without a pending or approved Form I-485 application, Plaintiff was not eligible to
file a Form I-765 application. (See id.) Plaintiff was not barred from filing another
Form I-765 application “under any category for which [Plaintiff] may qualify.” (Id.)
As stated, Plaintiff’s Form I-485 application for adjustment of immigration
status was denied in 2009 because the Deluxe Inn Form I-140 petition for
Adjust Status, is pending.” United States Citizenship and Immigration Services, Form I-765
Instructions, OMB No. 1615-0040, p. 5 (Feb. 13, 2015) (emphasis added) available at
http://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf.
The “(c)(9) category” refers to a specific eligibility category established for those applicants filing for
permission to work based on a pending application for adjustment of status (Form I-485). See 8
C.F.R. § 274a.12; see also United States Citizenship and Immigration Services, Employment
Authorization, http://www.uscis.gov/working-united-states/information-employersemployees/employer-information/employment-authorization (last updated Jan. 27, 2015).
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employment visa upon which it was based had also been denied about two months
earlier. (Dkt. 1, ¶¶ 9, 10.) Plaintiff argues, however, that Deluxe Inn’s Form I-140
petition for an employment visa is in reality still valid and he was therefore eligible
to renew his Form I-485 application for adjustment of status during his removal
proceedings. (See Dkt. 5, Ex. B, p. 3.) In particular, Plaintiff asserts that because
this Form I-140 petition was denied “more than 180 days after [Plaintiff’s]
application for adjustment of status [Form I-485] was filed, the Form I-140 petition
remains valid with respect to the new job [with Peshtal, Inc.].” (Id.) Plaintiff’s
argument is that Deluxe Inn’s Form I-140 petition is still valid and because the
immigration judge has not yet adjudicated or even addressed Plaintiff’s renewed
Form I-485 application, Plaintiff’s renewed application is still pending. (See id.)
Plaintiff contends that the denial of the Deluxe Inn Form I-140 petition lacks
validity because his Form I-485 petition to adjust status was unadjudicated for
more than 180 days. (See id.) Plaintiff rests this argument on the plain language of
INA § 204(j), the so-called portability provision,10 which states in relevant part:
A petition under subsection (a)(1)(D)11 for an individual whose application for
adjustment of status pursuant to section 245 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.
This provision allows employment-based green card applicants to “port” their valid Form I-140
petitions to a new employer under certain circumstances. See INA § 204(j).
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Re-designated as subsection 204(a)(1)(F). See INA § 204(j); 8 U.S.C. § 1154(j).
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INA § 204(j); 8 U.S.C. § 1154(j). Pursuant to this statute, if a Form I-485 application
for adjustment of immigration status is not adjudicated within 180 days, the
underlying I-140 petition for employment visa remains valid if the immigrant
changes jobs, so long as the immigrant stays in the same or similar occupational
classification. Id.
Plaintiff maintains that the 2007 Deluxe Inn Form I-140 petition is still valid
and he can thus base his renewed Form I-485 application on this petition because
his Form I-485 application was pending for more than 180 days before it was
denied. Accordingly, Plaintiff asserts that (1) he was eligible to renew the Form I485 application upon which his Form I-765 application for work authorization is
based; and (2) his renewed Form I-485 application is still pending because it has not
been adjudicated by the immigration judge. (See Dkt. 5, Ex. B.) For these reasons,
Plaintiff contends that USCIS wrongly denied his Form I-765 application.12
Plaintiff filed a complaint pursuant to 5 U.S.C. § 702 on April 14, 2015
challenging the denial of his Form I-765 application as arbitrary and capricious.
(Dkt. 1, ¶ 1.) Plaintiff’s sole request for relief is that the Court “hold unlawful and
set aside” the denial of his Form I-765 application for work authorization. (Id. at 9.)
Defendant answered the complaint by filing its motion to dismiss on June 18, 2015.
(Dkt. 5.)
At the hearing, Plaintiff’s Counsel stated that he relied solely on the statutory language in support
of this argument despite his acknowledgment that no court that had considered the issue had agreed
with his interpretation of this statute.
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II.
VENUE
As of the date of this Order, Plaintiff has a case pending in the United States
District Court for the Western District of Michigan in which he challenges as
arbitrary and capricious the July 26, 2010 decision by USCIS denying Peshtal,
Inc.’s Form I-140 petition filed on Plaintiff’s behalf during removal proceedings.
Patel v. United States Citizenship and Immigration Services, No. 10-cv-1047, Dkt. 2
(W.D. Mich.), Dkt. 1. The denial of that Form I-140 petition is not at issue here. As
a threshold matter, Plaintiff asserts in the complaint filed in this case that the
Eastern District of Michigan is the appropriate venue for challenging the denial of
his Form I-765 application because renewed the required Form I-485 application for
adjustment of status in immigration court in Detroit, Michigan. (Dkt. 1, ¶ 5.)
In civil actions not based solely on diversity jurisdiction, venue is controlled
by 28 U.S.C. § 1391, which provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship
may, except as otherwise provided by law, be brought only in (1) a judicial
district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated, or (3) a judicial district in which any defendant
may be found, if there is no district in which the action may otherwise be
brought.
28 U.S.C. § 1391(b). Plaintiff maintains that venue is appropriate under 28 U.S.C. §
1391(b)(2). (See Dkt. 1, ¶ 5.)
The test for determining venue under § 1391(b)(2) depends on the location of
the “events or omissions giving rise to the claim.” 28 U.S.C. § 1391(b)(2). Here,
although the decision to deny Plaintiff’s Form I-765 application for temporary
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employment authorization was made by USCIS in Nebraska, the success or failure
of Plaintiff’s claim rests in significant part on whether he was eligible to renew his
Form I-485 application for adjustment of status before the immigration court in
Detroit, Michigan.
At the hearing on this motion, both parties agreed that the Eastern District
of Michigan is the appropriate venue. Because Plaintiff attempted to renew his
Form I-485 application before an immigration judge in Detroit, and the issue of
whether that application is still pending is central to whether USCIS’s decision to
deny Plaintiff’s Form I-765 application was arbitrary and capricious, it is clear that
“a substantial part of the events or omissions giving rise to the claim occurred” here.
Venue therefore properly lies in this district.
III.
LEGAL STANDARDS
Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1), arguing that this Court lacks subject matter jurisdiction because Plaintiff
has no constitutional standing; and pursuant to Federal Rule of Civil Procedure
12(b)(6), asserting that the complaint fails to state a claim upon which relief can be
granted. (See Dkt. 5.)
A. Federal Rule of Civil Procedure 12(b)(1) and Standing
Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of
jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1). Because a Plaintiff’s
claims must be dismissed for lack of subject matter jurisdiction where constitutional
or prudential standing is lacking, a challenge to a Plaintiff’s constitutional or
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prudential standing is properly brought as a 12(b)(1) motion. See Loren v. Blue
Cross & Blue Shield of Michigan, 505 F.3d 598, 607 (6th Cir. 2007) (“If Plaintiffs
cannot establish constitutional standing, their claims must be dismissed for lack of
subject matter jurisdiction.”); see also American Fed’n of Gov’t Emps. v. Babbitt, 46
F. App’x 254, 256 (6th Cir. 2002) (per curiam) (affirming the dismissal of a claim
under Rule 12(b)(1) for lack of prudential standing). Plaintiff bears the burden of
proving his standing. Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users
Ass’n, Inc., 287 F.3d 568 (6th Cir. 2002) (citation omitted).
To maintain this action, Plaintiff must show both constitutional and
prudential standing. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134
S.Ct. 1377 (2014). Constitutional standing may be established by proof of three
elements:
First, the plaintiff must have suffered an “injury in fact”—an invasion
of a legally protected interest which is (a) concrete and particularized
... and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical....’
Second, there must be a causal connection between the injury and the
conduct complained of—the injury has to be “fairly ... trace[able] to the
challenged action of the defendant, and not ... th[e] result [of] the
independent action of some third party not before the court.... Third, it
must be “likely,” as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (all citations omitted).
Prudential standing embodies the “judicially self-imposed limits on the
exercise of federal jurisdiction” by limiting the types of claim a Plaintiff can bring.
See United States v. Windsor, 133 S. Ct. 2675 (2013) (other citations omitted). The
rules of prudential standing exist “to protect the courts from ‘decid[ing] abstract
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questions of wide public significance even [when] other governmental institutions
may be more competent to address the questions and even though judicial
intervention may be unnecessary to protect individual rights.’” Id. at 2686 (quoting
Warth v. Seldin, 422 U.S. 490, 500 (1975)).
To determine the parameters of review, the Court must decide whether the
standing challenge is a facial or factual attack on jurisdiction. Cartwright v. Garner,
751 F.3d 752 (6th Cir. 2014). As the Sixth Circuit has explained:
A facial attack goes to the question of whether the plaintiff has alleged
a basis for subject matter jurisdiction, and the court takes the
allegations of the complaint as true for purposes of Rule 12(b)(1)
analysis. A factual attack challenges the factual existence of subject
matter jurisdiction. In the case of a factual attack, a court has broad
discretion with respect to what evidence to consider in deciding
whether subject matter jurisdiction exists, including evidence outside
of the pleadings, and has the power to weigh the evidence and
determine the effect of that evidence on the court’s authority to hear
the case. Plaintiff bears the burden of establishing that subject matter
jurisdiction exists.
Cartwright, 751 F.3d at 760 (citing United States v. Ritchie, 15 F.3d 592, 598 (6th
Cir. 1994)).
Defendant argues that Plaintiff lacks constitutional standing because, as a
matter of law, he is ineligible for the benefit he seeks and cannot show any
redressable injury. Defendant’s motion thus presents a factual attack on this
Court’s subject matter jurisdiction.
B. Federal Rule of Civil Procedure 12(b)(6)
“The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a
matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in
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the complaint are taken as true.” Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419
(6th Cir. 2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). Under
Rule 12(b)(6), the complaint is viewed in the light most favorable to the Plaintiff,
the allegations in the complaint are accepted as true, and all reasonable inferences
are drawn in favor of the Plaintiff. See Bassett v. Nat’l Collegiate Athletic Ass’n, 528
F.3d 426, 430 (6th Cir. 2008). “[A] judge may not grant a Rule 12(b)(6) motion based
on a disbelief of a complaint’s factual allegations.” Saglioccolo v. Eagle Ins. Co., 112
F.3d 226, 228–29 (6th Cir. 1997) (quoting Columbia Nat'l Res., Inc. v. Tatum, 58
F.3d 1101, 1109 (6th Cir. 1995)).
“However, while liberal, this standard of review does require more than the
bare assertion of legal conclusions.” Tatum, 58 F.3d at 1109; Tackett v. M & G
Polymers, USA, L.L.C., 561 F.3d 478, 488 (6th Cir. 2009). “To survive a motion to
dismiss, [a Plaintiff] must plead enough factual matter that, when taken as true,
state[s] a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007) (internal quotations omitted). Plausibility requires
showing more than the “sheer possibility of relief but less than a probab[le]
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations omitted); Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir.
2010). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
In ruling on a motion to dismiss, the Court primarily considers the
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allegations in the complaint; although matters of public record, orders, items
appearing in the record of the case, and exhibits attached to the complaint may also
be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001);
see also Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999)
(finding that documents attached to a motion to dismiss that are referred to in the
complaint and central to the claim are deemed part of the pleadings). Where “the
plaintiff fails to attach the written instrument upon which he relies, the defendant
may introduce the pertinent exhibit,” which is then considered part of the
pleadings. QQC, Inc. v. Hewlett-Packard Co., 258 F. Supp. 2d 718, 721 (E.D. Mich.
2003) (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997)).
“Otherwise, a plaintiff with a legally deficient claim could survive a motion to
dismiss simply by failing to attach a dispositive document.” Weiner, 108 F.3d at 89.
IV.
DISCUSSION
USCIS denied Plaintiff’s Form I-765 application for authorization of
temporary employment because there was no approved or pending Form I-485
application for adjustment of immigration status upon which to base its approval.
(See Dkt. 5, Ex. G.) Plaintiff claims that this decision is erroneous because: (1) he
was statutorily eligible to renew and did renew his Form I-485 application before
the immigration court; and (2) his Form I-485 application is still pending because no
decision has issued on its merits and there is no final decision as to his removal.
(See Dkt. 1, ¶¶14, 21-24, 30.) USCIS thus had no basis for denying Plaintiff’s Form
I-765 application.
16
Defendant, in its motion to dismiss, argues that USCIS’s denial is proper. In
essence, Defendant maintains that Plaintiff was not eligible to renew his Form I485 application when he attempted to do so because there was no approved or
pending Form I-140 petition filed on his behalf at that time or since. (Dkt. 5, p. 12.)
USCIS was therefore correct in stating that the only Form I-485 application for
Plaintiff that was ever pending before USCIS had been denied. (Id. at 14-15.)
Accordingly, Defendant argues that Plaintiff lacks constitutional standing and has
failed to state a claim upon which relief can be granted. The Court will address
these arguments in turn.
A. Plaintiff has Constitutional and Prudential Standing
Defendant maintains the Plaintiff lacks constitutional standing in this
matter given that Plaintiff “cannot show any redressable injury because he is
ineligible, as a matter of law, to receive employment authorization.” (Id. at 8-9.)
Plaintiff is silent on this issue of standing in his response brief, despite bearing the
burden of establishing subject matter jurisdiction. Cartwright, 751 F.3d at 760
(citing Ritchie, 15 F.3d at 598). Instead, Plaintiff responds that this Court is barred
by the Chenery doctrine13 from considering any of Defendant’s arguments and
regardless Plaintiff properly renewed his Form I-485 application because he had a
Under the Chenery doctrine, a reviewing court should not uphold an administrative action based
on reasons different from those given by the agency. See SEC v. Chenery Corp., 318 U.S. 80, 88–89
(1943); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see also INS v. Ventura, 537 U.S. 12, 16–17
(2002); Shkabari v. Gonzales, 427 F.3d 324, 327–28 (6th Cir. 2005); Japarkulova v. Holder, 615 F.3d
696, 701 (6th Cir. 2010). Even when the agency’s reasoning is inadequate, however, its decision may
be upheld on the basis of harmless error if the Plaintiff’s prospects are otherwise so weak that there
is no “reason to believe that ... remand might lead to a different result.” Japarkulova, 615 F.3d at
701 (quoting Shkabari, 427 F.3d at 328 (quotation marks omitted)).
13
17
right to do so. (Dkt. 9, pp. 2-6, 12-24.) Plaintiff’s standing and by extension this
Court’s subject matter jurisdiction, however, are threshold matters that must be
resolved before the Court may reach the merits of Plaintiff’s claim.
Article III or constitutional standing requires that Plaintiff “plead a concrete,
particularized, and imminent injury in fact caused by the defendant that a
favorable judicial outcome would likely remedy.” Kroll v. White Lake Ambulance
Auth., 691 F.3d 809, 813 (6th Cir. 2012.) In other words, Plaintiff must establish
that he has suffered an injury in fact caused by USCIS’s conduct that a favorable
decision of this Court can redress. Plaintiff has established the first two
requirements – his Form I-765 application was denied by USCIS and he thus
remains subject to removal proceedings. The remaining question, then, is whether
“it is likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009).
Plaintiff’s constitutional and prudential standing14 was recently addressed by
the Sixth Circuit in the context of Plaintiff’s Western District of Michigan case. In
The parties do not contest Plaintiff’s prudential standing. The prudential standing test “is not
meant to be especially demanding.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Clarke v. Securities Industry Assn., 479 U.S. 388, 399
(1987)). The APA provides that a “person suffering a legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled
to judicial review thereof.” 5 U.S.C. § 702. If a Plaintiff’s interests are arguably within the “zone of
interests” to be protected by a statute, the prudential showing requirement is satisfied. Patchak, 132
S. Ct. at 2210. The requisite showing is not made where a Plaintiff’s interests are “so marginally
related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be
assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399. Here, pursuant to 8
C.F.R. § 274a.12(c):
14
An alien within a class of aliens described in this section must apply for work authorization.
If authorized, such an alien may accept employment subject to any restrictions stated in the
regulations or cited on the employment authorization document.
18
that case, USCIS filed a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6),
arguing in relevant part that Plaintiff lacked prudential standing because he was
asking the Court to review the denial of a petition that his employer had filed on his
behalf. Patel, No. 10-cv-1047 (W.D. Mich.), Dkt. 7. The District Court granted
USCIS’s motion without reaching the merits of Plaintiff’s complaint. The court held
that Plaintiff did not have prudential standing to appeal the agency’s denial of a
petition that had been filed by his third-party employer and also cast doubt on
whether Plaintiff had constitutional standing, suggesting that Plaintiff could not
satisfy the redressability prong. Id., Dkt. 15.
Plaintiff appealed, and the Sixth Circuit reversed. Although the Court of
Appeals focused primarily on Plaintiff’s prudential standing, the panel also resolved
the question of constitutional standing in Plaintiff’s favor:
[Plaintiff] “lost a significant opportunity to receive an immigrant visa” when
the CIS denied Peshtal Inc.’s petition on grounds that Patel says were
arbitrary. Abboud v. INS, 140 F.3d 843, 847 (9th Cir.1998). That lost
opportunity is itself a concrete injury—and a favorable decision would redress
it. Indeed, the record reflects that Peshtal Inc.’s offer of employment to Patel
remains open, and the government (to its credit) conceded during oral
argument that CIS could grant Peshtal Inc.’s petition if (as Patel contends)
the petition’s denial was arbitrary and capricious. Patel thus has
constitutional standing.
Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 638 (6th Cir. 2013).
Similarly, in this case, Plaintiff “lost a significant opportunity” – here, an
opportunity to obtain work authorization – when USCIS denied his Form I-765
application on allegedly arbitrary and capricious grounds. There is no indication in
This provision provides for work authorization for aliens within specified classes. See id. An alien
within one of the specified classes who applies for work authorization is thus within this provision’s
“zone of interests” and has prudential standing.
19
the record that the employment opportunity offered by Peshtal, Inc. is no longer
available. This “lost opportunity is itself a concrete injury” that “a favorable decision
would redress” because, as Defense Counsel conceded during oral argument, USCIS
could grant Plaintiff’s Form I-765 application were this Court to find that Plaintiff
could and did properly renew his Form I-485 before the immigration court.
Accordingly, this Court finds that Plaintiff has standing and will address the merits
of Plaintiff’s claim.
B. Plaintiff’s Claim Fails under Rule 12(b)(6)
Although Plaintiff has standing, the Court concludes that Plaintiff’s claim
cannot survive Defendant’s motion to dismiss under Rule 12(b)(6). Plaintiff claims
that the decision to deny his Form I-765 application was “arbitrary and capricious.”
Under the APA, the Court must set aside an agency decision if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5
U.S.C. § 706(2)(A); Simms v. National Highway Traffic Safety Admin., 45 F.3d 999,
1003 (6th Cir. 1995). Review under the arbitrary and capricious standard is narrow,
and the reviewing Court may not substitute its judgment for that of the agency even
if the Court might otherwise disagree with the agency’s decision. Simms, 45 F.3d at
1003; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376 (1989).
In reviewing an agency action under the arbitrary and capricious standard,
the Court is limited to the administrative record upon which the agency based its
decision. Camp v. Pitts, 411 U.S. 138, 142 (1973). Agency action may be reversed
only if the agency relied on factors that Congress has not intended it to consider,
20
failed to consider an important aspect of the problem or offered an explanation for
its decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference based on the agency’s expertise. Simms,
45 F.3d at 1003; Marsh, 490 U.S. at 378. Thus, under the APA’s arbitrary and
capricious standard, the Court should overturn USCIS’s decision only if USCIS
failed to examine the relevant information or to provide an explanation that
included a rational connection between the facts and the denial of Plaintiff’s Form I765 application.
Defendant denied Plaintiff’s Form I-765 application on March 16, 2015. (Dkt.
5, Ex. G.) In its decision, Defendant relied on 8 C.F.R. § 274a.12(c)(9) in stating that
a Form I-765 application must be submitted while a “properly filed Form I-485
application is pending final adjudication.” Id. Defendant explained that Plaintiff’s
Form I-765 application had to be denied because his “application for adjustment of
status to that of lawful permanent resident has been denied and therefore, is no
longer pending before USCIS.” Id. In other words, USCIS denied Plaintiff’s Form I765 application as a matter of law because it was not submitted either while
Plaintiff’s Form I-485 application was still pending or after it had been approved.
Plaintiff argues that this decision is arbitrary and capricious because it does
not address any of Plaintiff’s arguments made in his application cover letter, and in
particular Plaintiff’s assertion that the Form I-485 application had been properly
renewed during his removal proceedings and was still pending when he filed his
Form I-765 application. (Dkt. 9, pp. 1, 10.) Plaintiff maintains that he was eligible
21
to renew his Form I-485 application on the basis of the Deluxe Inn Form I-140
petition. (See id. at 17-23.) As Plaintiff’s Counsel acknowledged during oral
argument, Plaintiff cannot seek an I-485 adjustment of status without a pending,
approved, or otherwise valid Form I-140 petition for an employment visa; and
without a pending or approved adjustment of status application, Plaintiff is
ineligible to file a Form I-765 application. The survival of Plaintiff’s claim thus
depends on whether the Deluxe Inn Form I-140 petition was still “valid” pursuant
to the portability provision of INA § 204(j) when Plaintiff renewed his Form I-485
application during his removal proceedings.
This statute provides that a Form I-140 petition remains “valid” where an
applicant’s Form I-485 “has been filed and remain[s] unadjudicated for 180 days or
more” 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.” INA § 204(j). As the Sixth Circuit has explained, the
portability provision of INA § 204(j) is “premised on Congress’s purpose of providing
‘job flexibility for long delayed applicants’” and thus “allows for the portability of the
alien’s application across different jobs”. Shewchun v. Holder, 658 F.3d 557, 566
(6th Cir. 2011). This section “broadly applies to an ‘individual whose application for
adjustment of status ... has been filed and remained unadjudicated for 180 days or
more’ and who has an approved visa petition.” Perez-Vargas v. Gonzales, 478 F.3d
191, 195 (4th Cir. 2007).
22
In this case, the relevant chain of petitions and applications began on August
16, 2007 when Deluxe Inn filed a Form I-140 petition on Plaintiff’s behalf. (Dkt 1, ¶
7.) That same day, Plaintiff concurrently filed his Form I-485 application with the
Deluxe Inn Form I-140 petition. (Id. at ¶ 8.) On April 30, 2009, approximately 623
days after Plaintiff filed his Form I-485 application, USCIS denied Deluxe Inn’s
Form I-140 petition. (Id. at ¶ 9.) Plaintiff’s Form I-485 application was denied on
June 10, 2009, approximately 665 days after it was filed. (Id. at ¶ 10.) According to
Plaintiff, Deluxe Inn’s Form I-140 petition is still valid pursuant to the plain
language of INA § 204(j), even though it was denied in 2009, because his Form I-485
petition was not adjudicated within 180 days of being filed. (See Dkt. 5, Ex. B, p. 3.)
As Plaintiff’s Counsel conceded during oral argument, no court has yet
adopted the interpretation of the portability provision that Plaintiff urges. However
in a published “precedent decision,” Matter of Al Wazzan, 25 I. & N. Dec. 359 (2010),
the Administrative Appeals Office (“AAO”) first addressed and roundly rejected the
argument Plaintiff implicitly makes here.15 Although neither party cited this
Under authority delegated by the Secretary of Homeland Security, the Administrative Appeals
Office (“AAO”) is an arm of USCIS that exercises appellate jurisdiction over approximately 50
different categories of immigration benefits decisions. USCIS, The Administrative Appeals Office,
https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-officeaao/administrative-appeals-office-aao (last updated Oct. 7, 2015). “Precedent decisions” are
administrative decisions by the AAO that are selected by the Secretary of the Department of
Homeland Security for publication in bound volumes entitled “Administrative Decisions Under
Immigration and Nationality Laws of the United States.” USCIS, Precedent Decisions,
https://www.uscis.gov/laws/precedent-decisions (last updated Sept. 9, 2013). As such, they are
binding on the agency. See 8 C.F.R. § 103.3(c). Where, as here, an agency’s statutory interpretation is
communicated via formal adjudication that has the force of law, the interpretation is entitled to
substantial deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843–44 (1984). See Navistar, Inc. v. Forester, 767 F.3d 638, 644 (6th Cir. 2014) (“If the agency’s
interpretation is contained in a regulation or other form intended to have the force of law, it is
entitled to substantial deference under Chevron.”); see also Patel v. Johnson, 2 F. Supp. 3d 108, 120
(D. Mass. 2014) (finding that the AAO’s interpretation of § 204(j) in Al Wazzan merits Chevron
15
23
decision in their briefs, it merits a detailed recounting here as instructive and
persuasive authority on this question.16
In Al Wazzan, a Kuwaiti citizen appealed the denial of his Form I-485
application. Id. at 359-60. A Form I-140 petition was filed on the applicant’s behalf
on August 26, 2002, and the applicant filed a Form I-485 application on September
18, 2002 under the concurrent filing process that had been implemented in July
2002. Id. at 360. USCIS denied the Form I-140 petition on August 3, 2003, and the
Form I-485 application on September 29, 2003 after it had been pending for 376
days. Id. at 361. The applicant argued that pursuant to INA § 204(j), his Form I-485
application could not be denied because it had been pending for more than 180 days.
Id. at 360.
The AAO construed INA § 204(j) and determined “its effect on an application
for adjustment of status (Form I-485) if a visa petition (Form I-140) is denied after
the application is pending for 180 days.” Id. at 362. The AAO held that for the Form
I-140 petition to be considered “valid,” in harmony with related provisions and with
the INA as a whole, it must have been filed for an applicant who is entitled to the
requested classification and the petition must have been approved by USCIS. Id. at
367. Simply filing the petition with USCIS or the mere passage of 180 days does not
deference). Where “the agency’s interpretation of the statute is contained in a more informal medium
not intended to have the force of law ... it is afforded a lesser level of deference known as Skidmore
[v. Swift & Co., 323 U.S. 134, 140, (1944)] deference.” Id. at 645.
Plaintiff’s Counsel did not cite, nor did this Court discover, any federal court case modifying or
overturning this decision.
16
24
make an unadjudicated immigrant visa petition “valid” pursuant to INA § 204(j).
Id.17
In reaching its decision, the AAO applied the familiar cannons of statutory
construction.18 First, the AAO examined the legislative history of the statute. The
AAO determined that the legislative history could not provide much guidance
because, at the time the statute was enacted in 2000, a Form I-140 and a Form I485 could not be filed concurrently – an approved Form I-140 petition was required
The Al Wazzan decision was incorporated into Chapter 20.2(d) of the USCIS Adjudicator’s Field
Manual (“AFM”) on May 30, 2008. See Section II.5 of the May 8, 2008 memorandum entitled
Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions
and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by AC21 (AD08-06),
available at
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives
%201998-2008/2008/ac21_30may08.pdf. Chapter 20.2(d) of the AFM was updated to read as follows:
17
On October 18, 2005, USCIS designated Matter of Al Wazzan, A95 253 422 (Jan. 12,
2005) as a USCIS Adopted Decision. This AAO decision established that a petition
that is deniable (i.e. not approvable) will not be considered “valid” for purposes of
INA 204(j). An unadjudicated Form I-140 petition is not made “valid” merely through
the act of filing the petition with USCIS or through the passage of 180 days. A
denied From I-140 petition is also not considered valid regardless of
whether the I-140 petition is denied 180 days or more after the filing of the
adjustment of status application and regardless of when a request to invoke
the portability provision of INA § 204(j) is made. In order to be considered valid,
an I-140 petition must have been filed on behalf of an alien who was entitled to the
employment-based classification at the time that the petition was filed, and
therefore must be approved prior to a favorable determination of a
portability request made under INA § 204(j).
Id. at 9 (emphasis added).
18
With respect to the “canons of statutory instruction,” the AAO stated as follows:
Statutory interpretation begins with the language of the statute itself. Pennsylvania
Department of Public Welfare v. Davenport, 495 U.S. 552 (1990). We are expected to give the
words used in the statute their ordinary meaning. Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). Furthermore, we are to construe the language in question
in harmony with the thrust of related provisions and with the statute as a whole. K Mart
Corp. v. Cartier Inc., 486 U.S. 281, 291 (1988) (holding that construction of language which
takes into account the design of the statute as a whole is preferred); see also COIT
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter
of W-F-, 21 I & N Dec. 503 (BIA 1996).
Al Wazzan, 25 I. & N. Dec. at 365.
25
before a Form I-485 application could be filed. Id. at 364. As previously stated, the
concurrent filing process that both the Al Wazzan applicant and Plaintiff utilized
was implemented in July 2002. Id. at 360.
The AAO then focused its analysis on the operative statutory language also
relevant here: “A petition … shall remain valid with respect to a new job if the
individual changes jobs or employers ….” INA § 204(j). Because the term “valid” was
not defined by the statute, nor was any guidance provided in the Congressional
Record, the AAO turned to the ordinary meaning. Id. at 364-66.
The AAO ultimately rejected the argument that Congress intended the term
“valid” in INA § 204(j) to include “denied or unadjudicated petitions” given that “an
approved petition was required to file an application for adjustment of status” at the
time Congress enacted the statute in question. Id. at 366 (emphasis added). As the
AAO observed, when Congress enacted the statute, “no alien could assert that a
denied or unadjudicated immigrant visa petition ‘shall remain valid’ through the
passage of 180 days” because the Form I-485 “could not be filed until after the
petition was approved by USCIS.” Id. at 365. Congress is presumed to be aware of
such regulations when it passes a law. See Goodyear Atomic Corp. v. Miller, 486
U.S. 174, 184-85 (1988).
Finally, the AAO examined the portability provision in light of “the overall
design of the nation’s immigration laws.” Al Wazzan, 25 I. & N. Dec. at 366. The
AAO noted that INA § 204(b) requires that USCIS approve a Form I-140 petition
“only after investigating the facts in each case, determining that the facts stated in
26
the petition are true and that the alien is eligible for the requested classification,
and consulting the Secretary of Labor when required.”19 Id. Accordingly, allowing
an applicant’s Form I-140 petition to be made valid “merely through the act of filing
the petition with USCIS or through the passage of 180 days” would “subvert the
statutory scheme of the U.S. immigration laws.” Id. at 367.
This Court finds the analysis and reasoning of the AAO in Al Wazzan to be
correct. To interpret the statute otherwise “would severely undermine the
immigration laws of the United States” because a Form I-140 could be deemed
“valid” when the petition “was never approved or, even if it was approved, if it was
filed on behalf of an alien who was never ‘entitled’ to the requested visa
classification.” Id. It is “irrational” to believe that “Congress intended to throw out
the entire statutorily mandated scheme regulating immigrant visas whenever that
scheme requires more than 180 days to effectuate” because this creates a situation
where ineligible applicants could gain a “valid” visa by filing “frivolous visa
petitions and adjustment applications […] in the hopes that the application might
remain unadjudicated for 180 days.” Id. Plaintiff’s proposed interpretation would
19
Section 204(b) states that:
After an investigation of the facts in each case, and after consultation with the Secretary of
Labor with respect to petitions to accord a status under section 203(b)(2) [8 U.S.C 1153(b)(2)]
or section 203(b)(3) of this Act [8 U.S.C 1153(b)(3)], the Attorney General shall, if he
determines that the facts stated in the petition are true and that the alien in behalf of whom
the petition is made is an immediate relative specified in section 201(b) of this Act [8 U.S.C
1151(b)] or is eligible for preference under subsection (a) or (b) of section 203 of this Act [8
U.S.C 1153], approve the petition and forward one copy thereof to the Department of State.
The Secretary of State shall then authorize the consular officer concerned to grant the
preference status.
27
lead to clearly unintended practical consequences inconsistent with the purposes of
the statute.
Although the Sixth Circuit has not addressed this issue, the AAO’s
conclusions with respect to INA § 204(j) have been upheld and applied by other
federal courts.20 See, e.g., Rajasekaran v. Hazuda, No. 14-3623, 2016 WL 362127, at
*3 (8th Cir. Jan. 29, 2016) (Plaintiff was not statutorily eligible to adjust status
because he could not port his I-140 since the I-140 was not valid to begin with);
Patel v. Johnson, 2 F. Supp. 3d 108, 122 (D. Mass. 2014) (affording the AAO’s
interpretation great deference and finding that applicant could not port a Form I140 petition terminated in 2008 to a new job in 2009); Ravulapalli v. Napolitano,
773 F. Supp. 2d 41, 53 (D.D.C. 2011) (“the Court finds that the Portability Provision
preserves the validity of only those I–140 petitions that have been approved”);
George v. Napolitano, 693 F. Supp. 2d 125, 131 (D.D.C. 2010) (“the Portability
Provision requires an approved I–140, not simply a pending I–140 Petition”);
Like those federal courts, this Court finds no basis to disagree with the AAO’s
cogent analysis and nothing in the arguments of Plaintiff’s Counsel suggests any
reason to do so. In short, Section 204(j) simply permits the applicant to change jobs
and remain eligible to adjust his or her status without losing the benefit of a
In her dissenting opinion to this Circuit’s decision in Patel v. U.S. Citizenship & Immigration
Servs., 732 F.3d 633 (6th Cir. 2013), the Honorable Martha Craig Daughtrey addressed portability
pursuant to INA 204(j). 732 F.3d at 643-45. Although portability is not at issue here, Judge
Daughtrey observed that “portability applies only to approved I–140 petitions” and that “Deluxe
Inn’s [labor certificate] became invalid when the USCIS denied the I–140 application submitted by
Deluxe Inn on the basis of inability to pay the proffered salary” therefore “Deluxe Inn’s [labor
certificate] could not be used to support Comfort Inn’s I–140 application because it was no longer
valid.” Id. at 643-44.
20
28
previously-approved Form I-140 petition so long as the new job is in the same
occupational category as the old job.
Here, there is no dispute that both of the Form I-140 petitions filed on
Plaintiff’s behalf were denied by USCIS – the Deluxe Inn Form I-140 petition was
not “valid” in 2010 because it was denied in 2009. Because the Deluxe Inn Form I140 petition is no longer valid, Plaintiff cannot base the renewal of his Form I-485
application on that petition and consequently, he was not statutorily eligible to
renew his Form I-485 application or file a Form I-765 application when he did so.
Thus, while Plaintiff’s renewal of his Form I-485 application before the immigration
judge may have been procedurally allowed, the I-485 application cannot be
considered valid or pending without a valid Form I-140 petition to support it.
Accordingly, USCIS’s decision to deny Plaintiff’s Form I-765 application because
Plaintiff’s “application for adjustment of status to that of lawful permanent resident
has been denied and therefore, is no longer pending before USCIS” is patently
correct.21
Plaintiff’s brief in response includes a lengthy argument that the USCIS denial of his Form I-765
application violates the Chenery doctrine because the USCIS did not address in its denial decision all
of Plaintiff’s arguments regarding the portability and continued validity of the Deluxe Inn Form I140 petition. (Dkt. 9, pp. 8-19.) USCIS explained in its decision that there was no approved or
pending Form I-485 application and therefore no possibility of approving a Form I-765 application.
(See Dkt. 5, Ex. G.) USCIS, although the opinion is brief, thus established a rational connection
between the lack of any supporting Form I-485 application and the denial of Plaintiff’s Form I-765
application. (See id.) Because the Court finds that Plaintiff was not statutorily eligible to renew his
Form I-485 application and therefore not eligible to file his Form I-765 application, USCIS did not
violate the Chenery doctrine for failing to address all of Plaintiff’s arguments regarding his eligibility
for employment authorization.
21
29
V.
CONCLUSION
Accordingly, Defendant’s motion to dismiss (Dkt. 5.) is GRANTED and this
case is DISMISSED WITH PREJUDICE for failure to state a claim upon which
relief may be granted.
SO ORDERED.
Dated: March 1, 2016
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on March 1,
2016, using the CM/ECF system, which will send notification to all parties.
s/A. Chubb
Case Manager
30
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