Only current employers can challenge work-based Green Card decisions

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.  

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