Polyzopoulos v. Garland
| Decision Date | 14 April 2021 |
| Docket Number | Civil Action No. 20-0804 (CKK) |
| Parties | ARISTEIDIS POLYZOPOULOS, et al., Plaintiffs v. MERRICK GARLAND, et al., Defendants |
| Court | U.S. District Court — District of Columbia |
In 2019, Colonial Marble determined that it would like to hire Mr. Aristeidis Polyzopoulos, a foreign national residing in Greece. To secure employment authorization for Mr. Polyzopoulos, Colonial Marble filed an I-140 petition on his behalf with the United States Citizenship and Immigration Services ("USCIS"). After USCIS initially approved the I-140 petition, Mr. Polyzopoulos appeared for a consular interview at the United States Embassy in Athens, Greece. A consular officer with the State Department, however, denied Mr. Polyzopoulos's application for an immigrant visa, and, shortly thereafter, USCIS revoked its original approval of Colonial Marble's I-140 petition on behalf of Mr. Polyzopoulos.
In response, Colonial Marble and Mr. Polyzopoulos (collectively, "Plaintiffs") have now filed a civil action against the United States Attorney General, the Secretary of the Department of Homeland Security, the Acting Director of USCIS, the Secretary of State, and the U.S. Consul General of the U.S. Embassy in Athens (collectively, "Defendants"), to challenge (1) USCIS's I-140 petition revocation and (2) the State Department's denial of Mr. Polyzopoulos's visa application. Now pending before the Court, is Defendants' [16] Motion to Dismiss Plaintiffs' Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon consideration of the briefing, the relevant authorities, and the record as a whole,1 the Court will GRANT Defendants' Motion and DISMISS Plaintiffs' Amended Complaint in its entirety.
This case involves Plaintiffs' attempt to secure employment authorization for Mr. Polyzopoulos, a foreign national from Greece. See Am. Compl. ¶¶ 10-34. Under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., companies attempting to permanently employ alien workers must generally follow a three-step process. See Raval v. USCIS, 369 F. Supp. 3d 205, 208 (D.D.C. 2019). First, the American employer must identify the alien worker as eligible "for an open and advertised position," and then "ask[] the Secretary of Labor to certify that (1) the employer attempted to recruit U.S. workers in good faith; (2) no U.S. worker is qualified, able, willing, or available for such employment; and (3) employing the alien worker will not adversely affect U.S. wages or working conditions." IQ Sys., Inc. v. Mayorkas, 667 F.Supp.2d 105, 107 (D.D.C. 2009) (citing 8 U.S.C. § 1182(a)(5) and 20 C.F.R. § 656.10(a) & (c)).
Second, "[o]nce the [labor] certification is obtained, the employer must [then] submit the certification along with an I-140 visa petition to [] USCIS on behalf of the non-citizen worker, who is known as the 'beneficiary' to the petition." Vemuri v. Napolitano, 845 F. Supp. 2d 125, 127 (D.D.C. 2012) (quoting 8 C.F.R. § 204.5(l)(1)). In support of its I-140 petition, the employer must demonstrate that the beneficiary meets the requisite job requirements and that the employer canpay the beneficiary the wages specified in its labor certification. See id. (citing 8 C.F.R. §§ 204.5(l)(3)(ii), 204.5(g)(2)). The petitioner ultimately bears the burden of establishing to USCIS the beneficiary's eligibility for the requested immigration benefit, by a preponderance of the evidence. See 8 U.S.C. § 1361.
Third, if USCIS approves the I-140 petition, a non-citizen beneficiary residing outside of the United States must then apply for a consular visa with the State Department, to provide for his admission into the United States. See 8 U.S.C. §§ 1181(a), 1182(a)(7), 1201(a)(1).2 "The INA confers upon consular officers exclusive authority to review applications for visas." Saavedra Bruno v. Albright, 197 F.3d 1153, 1156 (D.C. Cir. 1999) (citing 8 U.S.C. §§ 1104(a), 1201(a)); see also 8 U.S.C. § 1361. Under State Department regulations, a consular officer generally must either grant or refuse a visa application, see 22 C.F.R. § 42.81, and, by statute, a consular officer shall not issue a visa to an alien "if . . . it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law," 8 U.S.C. § 1201(g). A consular officer may also return a petition to USCIS "if the officer knows or has reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means." 22 C.F.R. § 42.43(a). In turn, USCIS "may, at any time, for what [it] deems good and sufficient cause, revoke the approval of" an I-140 petition. 8 U.S.C. § 1155; see also Raval, 369 F. Supp. 3d at 209.
Plaintiff Aristeidis Polyzopoulos "is a native and citizen of Greece." Am. Compl. ¶ 11. In 2019, Plaintiff Colonial Marble, an American company, sought to hire Mr. Polyzopoulos as an alien worker and, therefore, pursued a specialized employment visa on his behalf. See id. ¶¶ 10-11. Colonial Marble began the process by submitting an "Application for Permanent Employment Certificate" to the Department of Labor, id. ¶ 11, which the Department of Labor certified on March 20, 2019, id. ¶ 12. After receiving this labor certification, Colonial Marble then filed an I-140 petition with USCIS, on behalf of Mr. Polyzopoulos, on April 9, 2019. See id. ¶ 13. On April 16, 2019, USCIS approved Colonial Marble's I-140 Petition for Mr. Polyzopoulos. See id. ¶ 14.
Mr. Polyzopoulos subsequently appeared for a consular interview with a State Department consular officer at the United States Embassy in Athens, Greece, on October 16, 2019. See id. ¶ 15. "At the interview," however, Mr. Polyzopoulos "was given a Visa Refusal Worksheet indicating that his Application [for a visa] was being denied based on 8 U.S.C. § 1182(a)(5)(A)." Id. ¶ 16; see also Pls.' Ex. D (Visa Refusal Worksheet), ECF No. 14-1, at 17. The State Department further explained that "the consular officer determined that the labor certification in this case was obtained by fraud or misrepresentation of a material fact based on [Mr.] Polyzopoulos's responses at the consular interview." Am. Compl. ¶ 19. Additionally, the State Department informed Mr. Polyzopoulos of its intention to return his I-140 petition to USCIS "with a recommendation that it be revoked." Id. ¶ 20.
Counsel for Mr. Polyzopoulos protested the consular officer's visa denial, asserting that the labor certification for Mr. Polyzopoulos was valid. See id. ¶¶ 18, 21. In response, the State Department indicated on November 5, 2019 that they were "were willing to review [Mr. Polyzopoulos's] timeline of filing events and [would] consider this in light of any additional DOLpolicy documents" presented. Id. ¶ 22. Counsel for Mr. Polyzopolous responded to the State Department on November 7, 2019 "with the requested timeline of filing events, and further cited the relevant regulations to showing that the labor certification process was fully complied with by Plaintiffs." Id. ¶ 23. In December 2019, the State Department subsequently notified Plaintiffs that their request for reconsideration remained pending. See id. ¶¶ 25, 28. But after receiving no response from the State Department by March 2020, Plaintiffs decided to file a civil action against the government in this Court. Therein, Plaintiffs requested that the Court declare that Mr. Polyzopoulos "properly established eligibility for an immigrant visa via consular process" and issue an injunction compelling the State Department to "reconsider [Mr. Polyzopoulos's] application" for a visa. Compl., ECF No. 1, ¶¶ 30, 33.
In May 2020, after Plaintiffs filed their initial complaint in this case, USCIS expressed its intention to revoke Plaintiffs' previously-approved I-140 petition. Am. Compl. ¶ 30. In the agency's Notice of Intent to Revoke ("NOIR"), it explained that the State Department had returned the I-140 petition to USCIS "because it appeared that the job offer [from Colonial Marble] was not clearly open to U.S. workers, [that Colonial Marble] did not establish its ability to pay, and [that Colonial Marble] willfully misrepresented that the job was clearly open to U.S. workers, a material fact." Pls.' Ex. F (NOIR), ECF No. 14-2, at 1. Plaintiffs timely responded to USCIS's stated concerns, see Am. Compl. ¶ 31, but on June 30, 2020, USCIS formally revoked its approval of Plaintiffs' I-140 petition, see Pls.' Ex. G (Not. of Revocation), ECF No. 14-3, at 1.
On October 3, 2020, Plaintiffs amended their pleadings to account for USCIS's recent revocation of their I-140 petition. In their Amended Complaint, Plaintiffs now ask this Court to review (1) the State Department's denial of Mr. Polyzopoulos's visa application and (2) USCIS's revocation of Plaintiffs' I-140 petition. See, e.g., Am. Compl. ¶¶ 35-37, 43. Specifically, Plaintiffsrequest that the Court invalidate the State Department's original visa denial and USCIS's petition revocation, then declare that Plaintiffs are eligible for a new I-140 petition and compel the State Department to reconsider Mr. Polyzopoulos's visa application. See id. ¶¶ 58-65. In turn, Defendants have moved to dismiss Plaintiffs' action in its entirety under both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The parties have now fully briefed Defendants' motion to dismiss, which is currently pending before the Court and ripe for review.
A court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed...
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