Introduction: Notification of Intent to Revoke I-140 petition for Aliens Who Exercise I-140 Portability

In Mantena v. Johnson, — F.3d —-, (2d Cir. 2015) [PDF version], the Second Circuit held that United States Citizenship and Immigration Services (USCIS) issued an important decision regarding notification requirements for aliens with approved I-140 petitions who have exercised I-140 portability [see article]. It held that if an employee with an approved I-140 petition exercises I-140 portability under The American Competitiveness in the 21st Century Act of 2000 (AC21) [see category], and USCIS decides to revoke the I-140 petition, notice must be provided to both the petition beneficiary and the beneficiary’s new employer.

Facts of Mantena v. Johnson

The case concerned Ganga Mantena, a citizen of India, who had an I-140 petition for an employment-based immigrant visa in the EB2 preference category filed on her behalf. The I-140 petition was approved in 2006, and Mantena filed a Form I-485 for adjustment of status in 2007. However, because the EB2 category was oversubscribed for immigrants from India, her petition was not reviewed for many years.

In 2009, Mantena exercised I-140 petition portability under AC21 (see [INA section 204(j)]) to change employers.

In 2012, USCIS sent a Notice of Intent to Revoke (NOIR) Mantena’s I-140 petition to the original employer on account of fraud perpetrated by the original employer in I-140 petition it filed on behalf of a different employee.

Neither Mantena nor her new employer was notified of the NOIR to the original employer. USCIS received no response from the original employer, and it revoked Mantena’s approved I-140 petition in October of 2012. Mantena apparently only learned of the problem with the I-140 petition when she was notified that her application for adjustment of status had been denied in November of 2012 on account of the revocation of the underlying I-140 petition petition.

Mantena appealed to USCIS, seeking to have her Form I-485 denial reopened and the I-140 petition revocation reconsidered. USCIS denied the potion primarily for three reasons:

1. Citing 8 C.F.R. 103.3(a)(1)(iii)(B), USCIS ruled that Mantena, as a beneficiary of an I-140 petition, did not have standing to reopen the I-140 petition revocation.
2. Exercising I-140 petition portability under AC21 does not “transfer the petitioner’s rights to the [beneficiary].”
3. Citing 8 C.F.R. 103.2(b)(16)(i), USCIS rejected Mantena’s argument that she was entitled to notice of the adverse information underlying the I-140 petition revocation before rejecting her Form I-485 application for adjustment of status.

Mantena filed suit in the Southern District of New York arguing that USCIS’s actions violated its regulations and deprived her of due process rights. The District Court dismissed her claims for lack of subject matter jurisdiction, and did not reach any further questions.

Subject Matter Jurisdiction

The Second Circuit held that the District Court erred in holding that it lacked subject matter jurisdiction over Mantena’s claims. In reached this decision based upon its reading of sections 242(a)(2)(B)(ii) [prevents judicial review of decisions to deny relief under section 205] and 205 of the INA. Section 205 specifically states that the Director of Homeland Security “may, at any time, for what he deems to be good and sufficient clause, revoke the appeal of any I-140 petition…” The District Court relied upon Second Circuit precedent from Firstland Int’l Inc. v. U.S. I.N.S., 377 F.3d 127, 131 (2d Cir. 2004) [PDF version] in holding that this left the decision to revoke a I-140 petition at the discretion of the Secretary of Homeland Security.1

However, the Second Circuit held that the issue in this case was not about the decision to revoke the I-140 petition, but rather the procedure that USCIS went about in doing so. It cited favorably the Eleventh Circuit decision in Kurapati v. U.S. Bureau of Citizenship & Immigration Services, 775 F.3d 1255, 1262 (11th Cir. 2014) [PDF version] which held that if “USCIS failed to follow the correct procedure in revoking the I-140 petitions, that failure was not within USCIS’s discretion.” Furthermore, it held that “section 242(a)(2)(B)(ii) thus does not preclude judicial review of the administrative proceedings.”

Accordingly, the Second Circuit noted “that Mantena challenges the sufficiency of notice to [the petitioner], a notice that is explicitly required by regulation.”

Standing to Sue

After finding that it had subject matter jurisdiction, the Second Circuit held that Mantena had Article III standing to sue. Specifically, it held that she demonstrated injury (the denial of her Form I-485 based on the revocation of the I-140 petition), that the injury was traceable to the alleged inadequate notice of the intent to revoke the I-140 petition, and that a favorable decision would redress her injury. The Second Circuit noted that the fact that the result may be the same even if Mantena is afforded the notice and the opportunity to reopen proceedings does not change the fact that she has standing.

The Second Circuit rejected the government’s arguments that Mantena lacked standing because she was not the “affected party” under 8 C.F.R. sections 103.4 and 103.5 (under 8 C.F.R. 103.3(a)(1)(iii)(B) which states that the beneficiary of a I-140 petition is not the “affected party”).

First, the Second Circuit noted that the regulations in question were created before the passage of AC21. Secondly, it further held in any case that even if she did not have standing before USCIS, she had standing to bring the suit before federal court. The Second Circuit held that Mantena was “within the zone of interests protected by the statute.” It noted that the portability provisions found in sections 204(j) and 212(a)(5)(A)(iv) of the INA “reflect a congressional intent to protect the interests of qualified aliens.”2

Alien and New Employer Must be Notified of Intent to Revoke I-140 petition

Having found that it had subject matter jurisdiction over Mantena’s claims and that Mantena had standing to sue, the Second Circuit addressed the claims on the merits. The Second Circuit would find, for reasons that we will discuss below, that USCIS had a statutory requirement to provide notice of the intent to revoke the I-140 petition to both Mantena and her current employer.

The Second Circuit noted that regulations found in 8 C.F.R. 205.2(b) require that notice be given of the intent to revoke an approved I-140 petition only to the petitioner, and that the petitioner must be given the opportunity to respond. 8 C.F.R. 205.2(c) requires that after revocation, the petitioner must be provided with the grounds of revocation.

The Second Circuit noted that those regulations, which predate AC21, were sufficient when a petition beneficiary could only adjust status so long as he or she remained with the new employer. However, the Second Circuit noted that with the portability provisions in sections 204(j) and 212(a)(5)(A)(iv) of the INA, employees could adjust status without being tethered to the petitioner. Accordingly, the Second Circuit noted that the question before it was how to read the regulations in light of statutes that they were not written to account for.

The Court noted that Congress wrote AC21 to not only protect the interests of petition beneficiaries, but also of their new employers. It stated that “the alien employees and the successor employers who take advantage of earlier filings by other employers are frequently the only parties with any interests in the originally filed labor certifications and I-140 petitions.” Accordingly, it noted that the revocation of the I-140 petition3 meant little if anything to Mantena’s original employer, which not only longer employed her, but may not have existed at the time notice was provided of the intent to revoke her I-140 petition. However, it noted that “[i]t may well have mattered crucially to [her current employer].”

The Second Circuit stated that in light of AC21, that it could not believe that the proper recipient of the notice of intent to revoke could not be a party “who no longer has any interest in the matter.” Furthermore, “[b]ecause the portability provisions altered the parties who have an interest in opposing the revocation of a ported I-140 petition, we believe that the regulations must be read to require notice to the real parties in interest.” It stated that by neither notifying Mantena nor her actual employer which adopted the original I-140 petition, it prevented them from asserting an interest in the matter. Accordingly, this left them with no choice but to place “blind faith” in the original petitioner’s goodwill. The Second Circuit held that “such a scheme would completely underline the aims of job flexibility that [the portability provisions] sought to create.”

The Second Circuit rejected the government’s arguments that because the regulations in question were unchanged textually, the notice requirements were unchanged. It stated that “the government’s argument does not consider the possibility that the new employer, after the adoption of the statutory portability provisions of AC-21, must, contextually, be treated as the “affected party” at least for purposes of notice.”

Finally, the Second Circuit stated that “[b]ecause [the] new employer was permitted to adopt the I-140 petition … it only makes sense that the subsequent employer be treated as the de facto petitioner and thus entitled to adequate notice in cases of visa petition revocations. This should especially be the case here, where Mantena and her successor employer wrote to USCIS explicitly seeking to substitute the new employer…”

Ultimately, the Second Circuit held only that USCIS had acted inconsistently with regard to the portability provisions by not providing notice of intent to revoke to either the beneficiary or the subsequent employer who had, in effect, adopted the original I-140 petition. The Second Circuit left open the question of how exactly to read the notice regulations in light of the “notice requirements implicit in, but nonetheless mandated by, AC-21.”4

Conclusion: Effects of Mantena v. Johnson

The heart of the issue in this case is that while the laws changed, in this case the enactment of AC21 and the I-140 portability provisions, the accompanying regulations did not. The Second Circuit did well to note that USCIS’s application of its regulations undercut the purpose of the portability provisions, which is both to provide flexibility to employees with long-pending adjustment of status applications and to allow subsequent employers to hire talented employees. It is important to remember that where a court finds a conflict between statutes and regulations, the regulations must give way.

A district court in Wisconsin reached a similar conclusion in Musunuru v. Holder, 81 F.Supp.32 721 (E.D. Wisc., 2015) [PDF version] with regard to a different employee who had an I-140 petition filed by the same company as did Mantena, and who had his I-140 petition revoked under similar circumstances. That case is now pending before the Seventh Circuit as Musunuru v. Lynch.

It will bear watching whether other circuits, starting perhaps with the Seventh, follow the Second Circuit’s lead with regard to notification requirements in light of the I-140 petition portability provisions.

  1. Also cited: Green v. Napolitano, 627 F.3d 1341, 1344-46 (10th Cir.2010); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Ghanem v. Upchurch, 481 F.3d 222, 224-25 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 205 (3d Cir. 2006); El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004); but see ANA Int., Inc. v. Way, 393 F.3d 886 (9th Cir. 2004) [found restrictions on the Secretary’s discretion]
  2. Quoting from Patel v. U.S. Citizenship and Immigration Services, 732 F.3d 633, 636 (6th Cir. 2013)
  3. Mantena stated that the original company did not exist at the time it received the notice of intent to revoke.
  4. The Second Circuit did not reach the due process question.