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Musunuru v. Lynch

United States Court of Appeals, Seventh Circuit

August 3, 2016

Srinivasa Musunuru, Petitioner-Appellant,
Loretta E. Lynch, et. al, Respondents-Appellees.

          Argued October 29, 2015

         Appeal from the United States District Court for the Eastern District of Wisconsin, Milwaukee Division. No. 2-14-cv-00088 Lynn Adelman, Judge.

          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 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 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 administratively 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. 8 U.S.C. §§ 1154(a)(1)(F), 1255(a)(2). The petition is also called an 1-140 after the name of the form used to file the petition: Form 1-140, 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 1-140 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 1-140 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 1-485 after the form used to file the application: Form 1-485, Application to Register Permanent Residence or Adjust Status. See 8 C.F.R. § 204.5(n)(1). The worker may not file his 1-485 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 1-140 petitions. 8 U.S.C. § 1153(e)(1). To maintain the proper order, USCIS assigns each approved 1-140 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 1-485 applications, nonimmigrant workers must consult a montH1y Visa Bulletin published by the Department of 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 1-485 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 1-485 application. Sometimes, a cut-off date may retrogress, meaning that fewer visas are available than previously projected. When that happens to an applicant whose 1-485 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 1-485 application was approved because the 1-140 petition's approval was entirely contingent on the worker staying with the same employer. Under the statutory scheme, both the labor certificate and the 1-140 petition belong to the employer. The employer is the petitioner for the 1-140 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. § 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. 106-313, 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 1-140 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 1-485 application is approved. In effect, the worker's new employer can use the previous employer's labor certification and 1-140 petition to hire the worker (who is said to then "port" to the new employer), so long as the new 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 1-140 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 1-140 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 1-485 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 1-485 application was delayed.

         On January 1, 2010, after his 1-485 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 1-140 petition, Crescent Solutions did ...

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