Patel v. U.S. Citizenship & Immigration Servs.
| Decision Date | 01 March 2016 |
| Docket Number | Case No. 15-11353 |
| Parties | SHASHIKANT PATEL, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. TERRENCE G. BERG
HON. STEPHANIE D. DAVIS
In this case, a non-U.S. citizen is asking the Court to overturn a decision by the United States Citizenship and Immigration Services ("USCIS"). Specifically, Plaintiff Shashikant Patel challenges as arbitrary and capricious the decision by Defendant USCIS to deny his application for employment authorization. On February 2, 2015, Plaintiff filed a Form I-765 seeking "permission to accept employment" on the ground that he had a Form I-485 application for adjustment of immigration status pending before the Executive Office of Immigration Review. (See Dkt. 5, Ex. F.) On March 16, 2015, USCIS denied Plaintiff's Form I-765 application for failure to establish eligibility. (See Dkt. 5, Exs. F, G.) Plaintiff filed this complaint on April 14, 2015 seeking judicial review of the decision pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. (Dkt. 1, ¶ 1.)
Defendant now moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff lacks constitutional standing, without which the Court has no subject matter jurisdiction over his claim; and under Federal Rule of Civil Procedure 12(b)(6), asserting that the complaint fails to state a claim upon which relief can be granted. (See Dkt. 5.) The motion is fully briefed and a hearing was held in this matter on November 18, 2015 in Detroit, Michigan. (See Dkts. 9, 10, 13.) After careful review of the entire record, the briefs of the parties, their arguments at the hearing, and the relevant legal authorities, the Court concludes that Defendant's motion to dismiss (Dkt. 5) should be GRANTED for the reasons set out below.
Plaintiff is a native and citizen of India who currently lives in North Muskegon, Michigan. (Dkt. 1, ¶ 2.) He first entered the United States in October 1999 as a B-2 nonimmigrant authorized to remain in the country for one year, until October 2000. (Dkt. 5, Ex. A, p. 2.) However, Plaintiff overstayed his visa and began to seek employment. (Id.)
Under the Immigration and Nationality Act ("INA"), a non-citizen skilled worker can seek to become a permanent resident of the United States by obtaining an employment visa through a three-step process which requires action by both the non-citizen and his or her employer. See Matovski v. Gonzalez, 492 F.3d 722, 726-27 (6th Cir. 2007). The first two steps must be taken by the employer. First, the employer must file an application with the Department of Labor ("DOL") for laborcertification stating that there are insufficient qualified, able, and willing U.S. workers to fill the position. 8 U.S.C. § 1153(b)(3)(C); 1182(a)(5)(A)(i)(I).
Second, once the labor certification has been obtained, the employer must file a petition with USCIS for an employment visa on behalf of the non-citizen employee. This petition for an employment visa is called a Form I-140 petition. 8 U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(a). A Form I-140 petition filed on behalf of a skilled worked will be approved if, among other things, the employer has obtained valid labor certification and the non-citizen employee has at least two years of relevant training or experience. 8 U.S.C. § 1153(b)(3)(A)(i); 8 C.F.R. § 204.5(l).
The third and final step must be taken by the individual seeking employment. While the employer's Form I-140 petition is pending (or after it has been approved), the non-citizen employee must file a Form I-485 to apply to adjust his or her status to that of a permanent resident. 8 U.S.C. § 1255; 8 C.F.R. § 245.2(a)(3)(ii). It is possible for the non-citizen to file the Form I-485 application (for adjustment of status) at the same time that the Form I-140 petition (for employment visa) is filed.1
Once the employer and the applicant have completed all three steps, two conditions must be met for USCIS approval: the applicant "must be eligible to receive an immigrant visa and is admissible to the United States for permanentresidence"2 and "an immigrant visa is immediately available to him at the time his application is filed."3 8 U.S.C. § 1255(a). Approval of the I-485 application for adjustment of status is therefore contingent upon approval of the employer's I-140 petition for an employment visa. See 8 C.F.R. § 245.2(a)(2)(i).
Plaintiff has twice attempted to obtain permanent resident status through this process. In 2006, employer Deluxe Inn, seeking to hire Plaintiff as a lodging manager, applied and was granted labor certification from the DOL. (Dkt. 1, ¶ 6.) On August 16, 2007, Deluxe Inn filed a Form I-140 petition for an employment visa on Plaintiff's behalf and Plaintiff filed a Form I-485 application to adjust his residential status. (Id. at ¶ 7-9.) USCIS denied Deluxe Inn's Form I-140 petition on April 30, 2009 and, as a result, Plaintiff's Form I-485 application was denied on June 10, 2009. (Id. at ¶¶ 9, 10.) The Department of Homeland Security initiated removal proceedings against Plaintiff on August 30, 2009. (Id. at ¶ 11.)
On February 3, 2010, while removal proceedings were pending, Peshtal, Inc. filed a Form I-140 petition on Plaintiff's behalf. (Id. at ¶ 12.) Peshtal, Inc., likeDeluxe Inn, sought to hire Plaintiff as a lodging manager. (Id.) Peshtal, Inc., however, did not obtain its own labor certification before filing the Form I-140 petition; instead, Peshtal, Inc. attached the labor certification obtained by Deluxe Inn in 2006, effectively skipping step one. (See Dkt. 5, Ex. B, p. 3.) When Plaintiff appeared in immigration court that same day, he requested and was granted a continuance to allow USCIS time to consider Peshtal, Inc.'s newly-filed Form I-140 petition. (Dkt. 5, Ex. A, p. 3.)
On July 26, 2010, USCIS denied Peshtal, Inc.'s Form I-140 petition because it had no supporting labor certification. (Dkt. 1, ¶ 13.) Over the next nine months, Plaintiff requested and was granted additional continuances by the immigration judge until his April 13, 2011 hearing, when the immigration judge ordered Plaintiff removed to India after deciding that no good cause existed to delay the proceedings any further. (Dkt. 5, Ex. A, pp. 4-7.) The immigration judge based her decision to remove Plaintiff in part on "a determination that [Plaintiff] is not an eligible beneficiary of an intended employment-based immigrant visa petition." (Id. at 5.)
The reason Plaintiff was not an eligible beneficiary of an employment-based immigrant visa petition was because, as stated, USCIS denied Peshtal, Inc.'s Form I-140 petition for an employment visa on July 26, 2010 because Peshtal, Inc. had not completed step one of the process by obtaining its own labor certification prior to filing the petition.4 (Dkt. 1, ¶ 13.) In short, Plaintiff, since beginning the process tobecome a permanent resident, has had two Form I-140 petitions filed on his behalf (Deluxe Inn and Peshtal, Inc), and has filed one Form I-485 application (concurrently with Deluxe Inn's petition). Neither of the two Form I-140 petitions for employment visas filed on Plaintiff's behalf has ever been approved, and Plaintiff has had no Form I-140 petition pending since July 26, 2010. (See id. at ¶¶ 9, 13.)
On August 5, 2010, ten days after USCIS denied Peshtal, Inc.'s Form I-140 petition, Plaintiff filed notice with the immigration court that he was renewing his previously-denied 2007 Form I-485 application for adjustment of status.5 (Dkt. 5, Ex. B.) The immigration judge did not address Plaintiff's Form I-485 application at the April 13, 2011 hearing, however; the judge held that she had no jurisdiction over whether to grant Plaintiff an immigrant visa, stating that:
[I]n this case, there has been a determination that [Plaintiff] is not an eligible beneficiary of an intended employment-based immigrant visa petition. There is no visa. There is simply a labor certification which has not been allowed to transfer from one petitioner to another...6
Plaintiff appealed the immigration judge's decision to the Board of Immigration Appeals ("BIA"), but the appeal was dismissed on October 19, 2012.7 (Dkt. 5, Ex. C.) Plaintiff then appealed the BIA's determination to the Sixth Circuit. (Dkt. 5, Ex. D.) Before the Sixth Circuit could reach the merits of Plaintiff's claim, however, the Attorney General sought remand of the case to the BIA for administrative closure. (Id. at 2.) The motion was granted and the case remanded on January 8, 2014. (Id.) Plaintiff's removal proceedings were administratively closed on April 7, 2014 but can be reinstated by either party at any time. (Dkt. 5, Ex. E.)
On February 2, 2015, approximately ten months after removal proceedings against him had been administratively closed, Plaintiff filed a Form I-765 application for employment authorization. (Dkt. 5, Ex. F.) A Form I-765 application for employment authorization provides a means for non-citizens who have either a non-immigrant visa or a pending visa application to apply for temporary employment during their adjudication period.8
Plaintiff included with his application a cover letter asserting that he is "fully eligible for employment authorization in the (c)(9) category"9 because: (1) he properly renewed his Form I-485 application for adjustment of status with the immigration court in Detroit; and (2) this Form I-485 application remains pending with the Executive Office of Administrative Review because "there has not been a decision issued on [the application]" or a "final decision in his removal proceedings." (Id. at 3-4.) Plaintiff based...
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