Mehta v. U.S. Dep't of State
| Decision Date | 16 May 2016 |
| Docket Number | Case No. 15-1543RSM |
| Parties | Chintan Mehta, et al., Plaintiffs, v. United States Department of State, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Gregory Howard Siskind, Siskind Susser, PC, Memphis, TN, Robert Andrew Free, Barrett Johnston Martin & Garrison, PLLC, Nashville, TN, Robert H. Gibbs, Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for Plaintiffs.
Erez Reuveni, Glenn M. Girdharry, Sarah S. Wilson, US Department of Justice, Washington, DC, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
This matter comes before the Court on Defendants United States Department of State, et al. (collectively, "State Department")'s Motion to Dismiss pursuant to FRCP 12(b)(1) and 12(b)(6), Dkt. # 27. The State Department argues inter alia , that the Court lacks jurisdiction under the Administrative Procedure Act ("APA") to review Defendants' revision to a visa bulletin as this revision does not constitute "final agency action." Id. at 2. Plaintiffs oppose this Motion and argue that the bulletin revision does constitute final agency action. See Dkt. # 30. For the reasons set forth below, the Court agrees with Defendants and GRANTS their Motion.
Plaintiffs and potential class members are "the beneficiaries of approved employment-based visa petitions for highly skilled workers." Dkt. # 22–1 at 2. On September 9, 2015, the State Department published a monthly "Visa Bulletin" with "a date on which applicants may submit adjustment of status applications… that comes before the projected date on which final adjudicative action will occur." Id. at 3. Plaintiffs allege that they then spent significant time and money assembling adjustment applications "based on their reasonable expectation—created by over five decades of uniform practice—that the government would abide by the Visa Bulletin it published on September 9, 2015." Id. On September 25, 2015, the State Department published another, revised Visa Bulletin withdrawing and changing the date on which applicants may submit adjustment of status applications. Id. Plaintiffs brought this lawsuit on September 28, 2015, and amended their Complaint on September 30, 2015, and January 15, 2016. Dkt. ## 1; 6; 22–1.
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may challenge the plaintiff's jurisdictional allegations in one of two ways: (1) a "facial" attack that accepts the truth of the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction, or (2) a "factual" attack that contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings. Leite v. Crane Co. , 749 F.3d 1117, 1121–22 (9th Cir.2014). When a party raises a facial attack, the court resolves the motion as it would under Rule 12(b)(6), accepting all reasonable inferences in the plaintiff's favor and determining whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction. Id. at 1122. In making a Rule 12(b)(6) assessment, the court accepts all facts alleged in the complaint as true, and makes all inferences in the light most favorable to the non-moving party. Baker v. Riverside County Office of Educ. , 584 F.3d 821, 824 (9th Cir.2009) (internal citations omitted). However, the court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. at 678, 129 S.Ct. 1937. This requirement is met when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The complaint need not include detailed allegations, but it must have "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Absent facial plausibility, a plaintiff's claims must be dismissed. Id. at 570, 127 S.Ct. 1955.
Plaintiffs contend they were denied access to immigrant visas that allow noncitizens to be admitted as Lawful Permanent Residents ("LPRs") through an adjustment of immigration status. These immigrant visas have several advantages over non-immigrant visas, e.g. allowing LPRs to live in the U.S. longer, work, and travel internationally with fewer restrictions. See generally 8 U.S.C. §§ 1101(a)(16), 1101(a)(20), 1255. Obtaining LPR status may be a significant step toward U.S. citizenship. See 8 U.S.C. § 1427(a).
This case specifically concerns employment-based immigrant visas. A noncitizen who wants to obtain such a visa must normally go through an employer, who submits various forms to different branches of the U.S. Government. First, the employer generally must file an application for a labor certification with the Department of Labor ("DOL"). See 8 U.S.C. § 1182(a)(5)(A). The DOL is asked to certify that: (1) there are insufficient U.S. workers able, willing, qualified, and available for the particular job; and (2) employment of the individual will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 U.S.C. § 1182(a)(5)(A)(i). The approved labor certification establishes, among other things, the wage that the employer must pay the worker. See 8 U.S.C. § 1182(p) ; 20 C.F.R. § 656.40. The date DOL accepts the application serves as the employee's "priority date," which functions as the employee's place in line for an immigrant visa number. 8 C.F.R. § 204.5(d).
The employer then files an I-140 visa petition with the U.S. Citizenship and Immigration Service ("USCIS"). 8 U.S.C. § 1154(a)(1)(F). In the Form I-140 petition, the employer requests that the employee be classified under one of the employment-based immigrant visa preference categories based on the employee's skills, experience, and/or education. 8 U.S.C. § 1153(b). Once USCIS approves a visa petition, those living in the United States under a current visa status may gain LPR status only if an immigrant visa is "immediately available." 8 U.S.C. § 1255.
The Immigration and Nationality Act ("INA") defines employment-based immigrant visa classifications and sets forth numerical limitations, both worldwide and per country. 8 U.S.C. §§ 1151, 1153(b), 1154(b). The INA generally caps the annual number of employment-based immigrant visas at 140,000, of which 40,040 generally are available to individuals applying under the employment-based second preference (EB-2) classification. 8 U.S.C. §§ 1151(d), 1153(b). The INA further limits the number of employment-based immigrant visa numbers that generally may go to nationals of any one country during a fiscal year to 7% (known as the "per-country limitation"). 8 U.S.C. § 1152(a)(2). The State Department is responsible for administering the provisions of the INA relating to numerical limitations on immigrant visa issuances, including managing the individual allotment of employment-based immigrant visas. 8 U.S.C. § 1153(g). The State Department allocates visa numbers for use in connection with the issuance of immigrant visas based on reports from consular officers and reports about applications for adjustment of status reported provided by officers of DHS. 22 C.F.R. § 42.51. When demand for immigrant visa numbers outpaces the statutorily allotted supply in a particular preference category or country, the State Department considers the category or country "oversubscribed" and imposes a cut-off date to keep the allocation of visas within the statutory limits for each fiscal year. Those who applied after the cut-off date go into a visa queue. The State Department divides applicants in the visa queue by preference category and, if the applicant's native country has exceeded the INA's per-country cap, foreign state chargeability. Once preference category and chargeability are accounted for, the State Department determines an applicant's position in the visa queue by referring to his or her priority date, which is the date on which USCIS received the petition (I-130, I-140, I-360, I-526 or, in some cases, foreign labor certification) to accord the applicant immigrant status. 8 C.F.R. § 245.1(g)(2).
The State Department's Bureau of Consular Affairs reports the availability of immigrant visas using a monthly Visa Bulletin, which is developed by the Immigrant Visa Control and Reporting Division. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date, preference category, and chargeability country. The Visa Bulletin allows applicants to check their place in the various family based and employment-based immigrant visa queues by providing the most recent date when a visa number is available for each category. An immigrant visa becomes available to a noncitizen applicant when his or her priority date is earlier than the cut-off date shown in the Visa Bulletin for his or her preference category and country of chargeability, or when the Visa Bulletin shows the numbers for visa applicants in the non-citizen's preference category are "current." 8 C.F.R. § 245.1(g)(1). The State Department issues each monthly Visa Bulletin roughly three weeks before it is to go into effect, e.g. the "October Visa Bulletin" is issued in mid-September. This provides applicants additional time to complete and submit their applications before the end of the month deadline (in this example, the end of October) for filing based on a particular month's bulletin.
...
To continue reading
Request your trial
-
Nakka v. U.S. Citizenship & Immigration Servs.
...an annual limit of 140, 000 employment-based visas that are allocated by employment category and subject to the 7% “per-country limitation.” Id. 8 U.S.C. §§ 1151, 1153(b), 1154(b)). When employment-based visas become available, they are issued to eligible workers in the order in which the w......