Kondapally v. U.S. Citizenship & Immigration Servs., Civil Action 20-920 (BAH)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: BERYL A. HOWELL, Chief Judge
• Parties: SHRAVAN KUMAR KONDAPALLY, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
• Decision Date: 16 August 2021
• Docket Number: Civil Action 20-920 (BAH)

SHRAVAN KUMAR KONDAPALLY, Plaintiff,
v.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Civil Action No. 20-920 (BAH)

United States District Court, District of Columbia

August 16, 2021

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Plaintiff Shravan Kumar Kondapally seeks review of a decision by the U.S. Citizenship and Immigration Services (“USCIS”) revoking, some thirteen years after its approval, the petition granting him an immigrant work visa, due to deficiencies in the petition found long after the fact. According to plaintiff, USCIS lacked authority to take this action because a “job portability” provision of the relevant statute, combined with a change in employer in the intervening span of years, served to immunize the petition from discretionary revocation by USCIS. Before the Court now are cross-motions for summary judgment on the two remaining live claims in this case. See Pl.'s Mot. Summ. J., ECF No. 21; Defs.' Cross-Mot. Summ. J., ECF No. 24. Upon consideration of the parties' briefing, plaintiff's motion is DENIED, and defendants' motion is GRANTED for the reasons set forth below.

I. BACKGROUND

A. Statutory and Regulatory Background

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” of the petition. 8 C.F.R. § 204.5(a), (l)(1); see also 8 U.S.C. § 1153(b)(3)(C). Along with its I-140 petition, the employer must submit additional documentation, including “letters from trainers or employers” demonstrating that the beneficiary has satisfied “[a]ny requirements of training or experience” or other requirements set forth in the labor certification, 8 C.F.R. § 204.5(l)(3)(ii)(A), and “evidence that the prospective . . . employer has the ability to pay the proffered wage . . . until the beneficiary obtains lawful permanent residence, ” id. § 204.5(g)(2). Even if USCIS approves the I-140 petition, however, “[t]he Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under [8 U.S.C. § 1154].” 8 U.S.C. § 1155. Section 1154, in turn, directs the Attorney General to approve certain immigration petitions, including Form I-140 petitions, “if he determines that the facts stated in the petition are true and that the alien . . . is eligible for [employment-based] preference.” Id. § 1154(b). Thus, I-140 petitions approved by USCIS and the Attorney General may nonetheless be revoked under § 1155.

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); 8 C.F.R. § 245.2(a)(3)(ii). USCIS cannot approve the I-485 application unless the underlying I-140 petition is approved. See 8 U.S.C. § 1255(a) (noting that a status adjustment may only be granted if “the alien is eligible to receive an immigrant visa”). 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).

To ensure “job flexibility for long delayed applicants for adjustment of status to permanent residence, ” in 2000, Congress added to the INA a portability provision. American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313, § 106(c), 114 Stat. 1251, 1254 (codified at 8 U.S.C. § 1154(j)). Under the portability provision, if a beneficiary's I-485 application has been pending for 180 days or longer, the beneficiary's related I-140 petition “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 [I-140] petition was filed.” 8 U.S.C. § 1154(j). 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 portability provision. 8 C.F.R. § 245.25(a). This information is provided on Form I-485 Supplement J (“Supplement J”). Id.

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), though the process 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).

B. Factual Background

Plaintiff has resided in the United States since 1988, when he immigrated from India on a student visa. Pl.'s Mem. Supp. Mot. Summ. J. (“Pl.'s Mem.”), Ex. A, Aff. of Shravan Kumar Kondapally (“Kondapally Aff.”) ¶ 1, ECF No. 21-2.^[1] Since 1988, he has made two attempts to secure legal permanent resident status.

First, in 2000, plaintiff's then-employer, Baan USA Inc. (“Baan”), sponsored plaintiff for a Form I-140 petition and employment-based permanent residency. The Department of Labor granted a labor certification, see Admin. Record (“AR”) at 1115-21, ECF No. 29-29, and USCIS approved the I-140 petition in September 2000, see Id. at 1111, ECF No. 29-28.^[2] Plaintiff subsequently filed, in May 2001, a Form I-485 application for permanent residency, see Id. at 1026, ECF No. 29-26, but Baan laid him off about a month later, see Id. at 201-03, ECF No. 29-10, and withdrew the I-140, see Id. at 988, ECF No. 29-25; id. at 1106, ECF No. 29-27. In January 2005, USCIS denied plaintiff's I-485 application. Id. at 990, ECF No. 29-25. Nearly thirteen years after Baan withdrew its I-140 petition, in April 2014, the USCIS Administrative Appeals Office affirmed the denial of plaintiff's I-485 application because it had been pending for less than 180 days when the I-140 petition was withdrawn. Id. at 987-91; see also 8 U.S.C. § 1154(j).

1. I-140 Approval

During the intervening decade, while his Baan-sponsored application languished, plaintiff made a second attempt to become a legal permanent resident. In 2006, plaintiff's new employer, Arwano Inc. (“Arwano”), filed a Form I-140 on his behalf, AR at 766, ECF No. 29-21, which USCIS approved in September 2006, id. at 80, ECF No. 29-4. The I-140 indicated that plaintiff was “[a] professional (at a minimum, possessing a bachelor's degree or a foreign degree equivalent to a U.S. bachelor's degree) or a skilled worker (requiring at least two years of specialized training or experience).” Id. at 766, ECF No. 29-21. In support of its petition, Arwano informed USCIS that plaintiff was to be employed “as a Software Consultant, ” id. at 788, a role “requiring the skills of a professional with any combination of programs/education from any institutions determined equivalent to a U.S. Bachelor's Degree in Computer Science, Engineering (any), Math or related and 24 months of experience in the job offered or as a Computer Software Professional, ” id. at 789. Arwano was willing to “accept any suitable combination of education, training or experience, ” and noted that the Department of Labor had “classified this job opportunity . . . as ‘professional.'” Id.

The company contended that plaintiff had satisfied the requirement for education “equivalent” to a B.S. in computer science through his acquisition of a Master of Science degree from Jackson State University, id. at 777; see also Id. at 795-800, and, though he lacked the requisite 24 months of experience, “possess[ed] [an] alternate combination of education and experience” as well as sufficient “experience in an alternate occupation, ” id. at 777. The petition indicated that plaintiff had worked for Arwano as a Software Consultant since September 2005, id., and was previously employed by several firms as a Computer Software Professional over several periods dating back to April 1996, id. at 777-79, 782-84, including employment with Baan from January 1999 to June 2003, id. at 782, in addition to earlier work experience, see Id. at 782-83. As evidence of this experience, Arwano submitted a letter from SSA Global, a company that had “acquired” Baan in July 2003. Id. at 806. The letter stated that plaintiff “was a full time permanent employee at Baan. . . from...