Kondapally v. U.S. Citizenship & Immigration Servs.
| Decision Date | 27 August 2020 |
| Docket Number | Civil Action No. 20-00920 (BAH) |
| Parties | SHRAVAN KUMAR KONDAPALLY, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
MEMORANDUM OPINION AND ORDER
Plaintiff seeks a preliminary injunction, under Federal Rule of Civil Procedure 65, or relief under 5 U.S.C. § 705, reversing the decision of defendant U.S. Citizenship and Immigration Services ("USCIS") to deny his Application for Employment Authorization (Form I-765) and approving his employment authorization during the pendency of this action. Upon consideration of plaintiff's Opposed Motion for Relief Pending Review Pursuant to 5 U.S.C. § 705 or, in the Alternative, a Preliminary Injunction Pursuant to Fed. R. Civ. P. 65 ("Pl.'s Mot."), ECF No. 13, the memoranda submitted in support and opposition, and the entirety of the underlying record, plaintiff's motion is DENIED for the reasons set forth below.
The Immigration and Nationality Act ("INA") creates a three-step process for noncitizens to obtain permanent employment in the United States in certain professional or skilled occupations. First, the employer applies for a labor certification from the U.S. Department of Labor confirming that "there are not sufficient workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed." 8 U.S.C. § 1182(a)(5)(A)(i)(I)-(II). Second, once the Department of Labor grants certification, the employer submits the certification with an Immigrant Petition for Alien Worker (Form I-140) to USCIS on behalf of the noncitizen worker, known as the "beneficiary" to the petition. 8 C.F.R. § 204.5(l)(1); see also 8 U.S.C. § 1153(b)(3)(C).
Lastly, upon USCIS's approval of the I-140 petition, the beneficiary may apply for lawful permanent resident status by submitting an Application to Register Permanent Residence or Adjust Status (Form I-485). See 8 U.S.C. § 1255(a). USCIS cannot approve the I-485 application unless it also approves the underlying I-140 petition. See id. (). Under USCIS regulations, a noncitizen worker seeking to become a lawful permanent resident must have a valid offer of employment when the I-485 is filed and adjudicated. 8 C.F.R. § 245.25(a). A noncitizen worker filing a standalone employment-based I-485 application with a pending or approved I-140 may be required to establish that the original offer of employment detailed in the I-140 is continuing or to confirm the existence of a new bona fide job offer under the INA's portability provision, 8 U.S.C. § 1154(j). 8 C.F.R. § 245.25(a). This information is provided through Supplement J to Form I-485 ("Supplement J").
During the pendency of the I-485 application, USCIS regulations allow the noncitizen worker to file an Application for Employment Authorization (Form I-765). 8 C.F.R. § 274a.12(c)(9). The approval of an I-765 application is committed to "the discretion of USCIS," id. § 274a.13(a)(1), and is mentioned nowhere in the INA. "[N]o appeal" is available to challenge the denial of an I-765 application. Id. § 274a.13(c). If the application is granted,the noncitizen worker is issued a Form I-766 employment authorization document ("EAD"), which is valid for a "specific period of time," id. § 274a.13(b), and ordinarily terminates at the end of that period, id. § 274a.14(a)(1)(i). If the noncitizen worker submits an application to renew the EAD before its expiration, the validity period of the initial authorization is automatically extended for 180 days or until the renewal application is denied, whichever is earlier. See id. § 274a.13(d)(1), (3). USCIS may also revoke an EAD before its expiration date if the I-485 application on which it is based is denied. See id. § 274a.14(b)(1)(i).
In 2006, plaintiff's then-employer filed a Form I-140, premised on a granted labor certification, on his behalf, which USCIS approved on September 14, 2006. Am. Compl. ¶¶ 30-31, ECF No. 14; see also Defs.' Mem. Opp'n Pl.'s Mot. Prelim. Inj. ( ) at 4, ECF No. 15. After the I-140 petition was approved, plaintiff filed an I-485 application to become a lawful permanent resident. Am. Compl. ¶ 32. On August 8, 2019, he filed a Supplement J, requesting portability of his I-485 application to a new job, under 8 U.S.C. § 1154(j) and 8 C.F.R. § 245.25, which was approved. Am. Compl. ¶¶ 5-6; id., Ex. C at 1, Notice of Action, I-485 J-Confirmation of Bona Fide Job Offer or Request for Job Portability INA Sec. 204(j) (Oct. 23, 2019), ECF No. 14-4. Plaintiff has also periodically applied for, and received, employment authorizations through successful I-765 petitions. Defs.' Opp'n at 4. His most recent employment authorization allowed plaintiff to work in the United States until March 5, 2020. Am. Compl., Ex. J at 3, Approval Notice, I-765-Application for Employment Authorization (Mar. 6, 2019), ECF No. 14-11. On November 7, 2019, plaintiff filed a new Form I-765 seeking to renew his employment authorization, Am. Compl. ¶ 34, which triggered an automaticextension of his employment authorization until September 1, 2020 or the denial of his November 7 application, see 8 C.F.R. § 274a.13(d)(1), (3).
Several days later, on November 12, 2019, USCIS revoked its prior approval of the I-140 submitted by plaintiff's former employer in 2006. Defs.' Opp'n, Ex. 2 at 1, 8, Notice of Revocation of Immigration Petition (Nov. 12, 2019), ECF No. 15-1. Plaintiff filed an administrative motion to reopen and reconsider the revocation of the petition on December 11, 2019, Am. Compl. ¶ 36; id., Ex. H, 1-290B, Notice of Appeal or Motion (Dec. 11, 2019), ECF No. 14-10, which was denied on April 17, 2020, Defs.' Opp'n, Ex. 3 at 1, Decision Re: 1-290B, Notice of Appeal or Motion (Apr. 17, 2020), ECF No. 15-1. Plaintiff filed an administrative appeal of the revocation on April 29, 2020, which is still pending. Am. Compl. ¶ 45.
On March 10, 2020, in light of the revocation of the I-140 petition, USCIS denied plaintiff's I-485 application and Supplement J, on the grounds that, without a valid I-140 visa petition, plaintiff was no longer eligible to receive a visa. Am. Compl. ¶¶ 37-39; id., Ex. D at 1-2, Decision Re: I-485, Application to Register Permanent Residence or Adjust Status (Mar. 10, 2020), ECF No. 14-5. On March 19, 2020, plaintiff "notified [d]efendants . . . that the I-765 Application was approvable pursuant to 8 C.F.R. § 274a.12(c)," Am. Compl. at 35 ¶ 156,1 which regulation allows USCIS "in its discretion" to "establish a validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending," 8 C.F.R. § 274a.12(c). Plaintiff contended that his pending motion to reopen and reconsider the revocation of the I-140 petition qualified his I-765 application for treatment under this regulation. Am. Compl. at 35 ¶ 156. Plaintiff filed anadministrative motion to reopen or reconsider the denial of the I-485 petition on April 8, 2020. Am. Compl. ¶ 105.
On April 28, 2020, USCIS denied plaintiff's November 7, 2019 I-765 application because he no longer had a pending I-485 petition, a prerequisite for work authorization. Defs.' Opp'n, Ex. 4 at 1, Decision Re: I-765, Application for Employment Authorization (Apr. 28, 2020), ECF No. 15-1. Plaintiff refiled his Form I-765 on May 8, 2020, supplying evidence of ongoing administrative and judicial review, Am Compl. ¶ 109; id., Ex. K at 1, Receipt Notice for Form I-765, Application for Employment Authorization, ECF No. 14-12; Pl.'s Mem. P. & A. Supp. Opposed Mot. Relief Pending Review Pursuant to 5 U.S.C. § 705 or, in the Alternative, Prelim. Inj. Pursuant to Fed. R. Civ. P. 65 ("Pl.'s Mem.") at 2, ECF No. 13-1. On May 26, 2020, USCIS reopened plaintiff's I-485 application and Supplement J on its own initiative, but did not reopen his I-765 application of November 7, 2019. See Defs.' Opp'n, Ex. 5, Notice of Action, Reopen Notice (May 26, 2020), ECF No. 15-1. USCIS confirmed, via email on July 20, 2020, that the I-765 had been denied on April 28, 2020 and was not being readjudicated. Am. Compl. ¶ 5; id., Ex. L, Service Request Placed Online via USCIS.gov with Email Reply (July 20, 2020), ECF No. 14-13. On August 19, 2020, one day after plaintiff filed the instant motion, USCIS again denied plaintiff's I-485 application and Supplement J, and also denied his May 8, 2020 I-765 application and his April 8 motion to reopen or reconsider. See Defs.' Opp'n, Ex. 6, Decision Re: I-485, Application to Register Permanent Residence or Adjust Status (Aug. 19, 2020), ECF No. 15-1; id., Ex. 7, Decision Re: I-765, Application for Employment Authorization (Aug. 19, 2020), ECF No. 15-1; id., Ex. 8, Decision Re: I-290B, Notice of Appeal or Motion (Aug. 19, 2020), ECF No. 15-1; id., Ex. 9, Decision Re: I-485, Supplement J (Aug. 19, 2020), ECF No. 15-1. The next day, on August 21, 2020, plaintiff filed an administrative motion toreopen and reconsider the August 19 decision. Pl.'s Reply Defs.' Mem. Opp'n Pl.'s Mot. Relief Pending Review Pursuant to 5 U.S.C. § 705 or, in the Alternative, a Prelim. Inj. Pursuant to Fed. R. Civ. P. 65 ("Pl.'s Reply"), Ex. A, Form I-290B, Motion to Reopen and Motion to Reconsider August 19, 2020 Denial of I-485 Application of Plaintiff (Aug. 21, 2020) with Confirmation of Delivery with U.S. Citizenship and Immigration Services (Aug. 24, 2020), ECF No. 16-2.
On April 7, 2020, plaintiff initiated this...
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