Rossville Convenience & Gas, Inc. v. Garland

• Decision Date: 10 December 2021
• Docket Number: Civil Action 20-2218 (JDB)
• Court: U.S. District Court — District of Columbia
• Parties: ROSSVILLE CONVENIENCE & GAS, INC., et al. Plaintiffs, v. MERRICK GARLAND, Attorney General of the United States, et al. Defendants.

ROSSVILLE CONVENIENCE & GAS, INC., et al. Plaintiffs,
v.
MERRICK GARLAND, Attorney General of the United States, et al. Defendants.

Civil Action No. 20-2218 (JDB)

United States District Court, District of Columbia

December 10, 2021

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

In this case, plaintiffs Rossville Convenience & Gas, Inc. (“Rossville”) and Mansoor Charaniya challenge a decision by the United States Citizenship and Immigration Services (“USCIS”) denying Rossville's petition for an employment visa on behalf of Mr. Charaniya. The parties have filed cross-motions for summary judgment, and the Court also requested and received supplemental briefing regarding Rossville's capacity to sue and Mr. Charaniya's ability to proceed as the sole plaintiff. Briefing is now complete and the cross-motions-as well as the threshold questions identified by the Court-are ripe for decision.

For the reasons explained below, the Court concludes that Rossville lacks capacity to sue and will accordingly drop it as a party to this action. The Court nevertheless determines that Mr. Charaniya possesses both constitutional standing and a statutory cause of action to challenge the agency's denial of Rossville's petition on his behalf. That challenge, however, ultimately fails: USCIS did not abuse its discretion in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, by denying Rossville's petition. The Court will thus grant defendants' motion for summary judgment and deny plaintiffs' cross-motion.

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Background

I. Statutory Scheme

The Immigration and Nationality Act, codified at 8 U.S.C. § 1101 et seq., provides that a certain number of “[v]isas shall be made available” to “skilled workers, ” defined as “[q]ualified immigrants who are capable . . . of performing skilled labor . . . not of a temporary or seasonal nature, for which qualified workers are not available in the United States.” Id. § 1153(b)(3)(A)(i). Visas issued under this provision, known as “EB-3 visas, ” are permanent work visas, and a non-citizen who receives an EB-3 visa is also eligible to become a lawful permanent resident of the United States. See id. § 1255(a); Khedkar v. USCIS, Civ. A. No. 20-1510 (RC), 2021 WL 3418818, at *1 (D.D.C. Aug. 5, 2021).

To go from visa hopeful to lawful permanent resident, the non-citizen and his American employer must follow a “three-step process.”^[1] E.g., Patel v. USCIS, 732 F.3d 633, 634 (6th Cir. 2013). First, the non-citizen's employer must apply for and receive a certificate from the Department of Labor (“DOL”). See 8 U.S.C. § 1153(b)(3)(C) (“An immigrant visa may not be issued to an immigrant under subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 1182(a)(5)(A) of this title.”); see also 20 C.F.R. §§ 656.10, 656.17 (instructions for applying for a certification). The employer's application must, among other things, describe “the job opportunity's requirements” and the duties to be performed. 20 C.F.R. § 656.17(h)-(i); see also Joint App'x [ECF Nos. 25-1 & 25-2] (“AR”) at 379-81 (Rossville's application for a DOL certification in this

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case).^[2] DOL must then approve the employer's description of the job and certify (1) that “there are not sufficient workers who are able, willing, qualified . . . and available at the time of application . . . and at the place where the alien is to perform such . . . labor, ” and (2) that “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); see also 20 C.F.R. § 656.24(b)(2)-(3). The description of the job's duties and requirements on the approved DOL certification then becomes the relevant measure of whether the prospective employee is qualified for the job (and therefore eligible for a visa). See id. § 204.5(1)(3)(ii)(B).

Second, after receiving a DOL certification, the employer must file a Form I-140 Immigrant Petition for Alien Worker (“I-140 petition”) with USCIS, 8 C.F.R. § 204.5(a), attaching its DOL certification, id. § 204.5(1)(3)(i), and requesting a visa for its prospective non-citizen employee as a “skilled worker, ” id. § 204.5(c). Before the agency, the employer is considered the “petitioner” and is the party in whose name the I-140 petition is filed and processed, see Id. § 204.5(1)(1); the non-citizen worker, by contrast, is referred to as the “beneficiary” of the petition and has little to no formal role in the adjudication of the petition, id. § 103.3(a)(1)(iii)(B) (excluding a beneficiary from the category of “affected party . . . with legal standing in a proceeding); see also Pai v. USCIS, 810 F.Supp.2d 102, 105 & n.2 (D.D.C 2011) (noting that “the employer . . . is the only party with standing in the agency to challenge [a] decision with respect to [a] petition”).

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For an I-140 petition to be approvable (i.e., for the beneficiary to be eligible for a visa), the beneficiary must “meet[] the educational, training or experience, and any other requirements of the [DOL] certification.” 8 C.F.R. § 204.5(1)(3)(ii)(B); accord Vemuri v. Napolitano, 845 F.Supp.2d 125, 127 (D.D.C. 2012). For “skilled workers, ” the beneficiary must have at least “two years [of] training or experience.” 8 U.S.C. § 1153(b)(3)(A)(i); accord 8 C.F.R. § 204.5(1)(3)(ii)(B). The petitioning employer is responsible for providing evidence that the beneficiary satisfies these requirements, ^[3] 8 C.F.R. § 204.5(1)(3)(ii)(B), and that evidence must be “in the form of letter(s) from current or former employer(s) or trainer(s) [that] include the name, address, and title of the writer, and a specific description of the duties performed by the alien or of the training received.” Id. § 204.5(g)(1). If the initial evidence submitted by a petitioner is deficient, USCIS may issue a Notice of Intent to Deny (“NOID”), explaining any deficiency and requesting clarification and/or additional evidence. Id. § 103.2(b)(8)(iv). If the employer's I-140 petition is approved, the beneficiary “is eligible to stand in line for an immigrant visa number to be issued by the Department of State.” Pai, 810 F.Supp.2d at 104.

Upon receiving a visa number, the beneficiary may embark on the third stage of the three-step process, becoming eligible to “adjust[] [his] status . . . to that of an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1255(a); accord Vemuri, 845 F.Supp.2d at 127. To do so, the beneficiary must file an I-485 Application for Adjustment of Status with USCIS. See 8 C.F.R. § 245.2(a)(3)(ii); Khedkar, 2021 WL 3418818, at *1. Although an approved I-140 petition is a prerequisite for obtaining permanent resident status, “an immigrant can sometimes file his I-485 application at the same time his employer files the I-140 petition.” Khedkar, 2021 WL 3418818,

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at *1. The I-485 adjustment application then sits in limbo while the I-140 visa petition is adjudicated, to be approved or denied contingent on the outcome of the visa petition.

Originally, “[t]he petitioner of the I-140 had to remain the alien's employer until the alien's adjustment of status application was decided . . . le[aving] employees essentially tethered to particular jobs for the duration of USCIS processing, which were marked by long delays.” Mantena v. Johnson, 809 F.3d 721, 733 (2d Cir. 2015). In 2000, however, Congress enacted the “portability provision, ” codified at 8 U.S.C. § 1154(j), which provides that “an I-140 petition ‘shall remain valid' to support an immigrant's I-485 application for permanent residency even when the immigrant changes jobs” so long as “the immigrant's I-485 application has been pending for 180 days or more and . . . the new job is ‘in the same or a similar occupational classification' as the one for which the immigrant's original employer filed the petition.” Khedkar, 2021 WL 3418818, at *1 (quoting 8 U.S.C. § 1154(j)). This provision thus allows many I-140 beneficiaries the flexibility to “port” their I-485 application to a new prospective employer without having to restart the whole process. In order for a porting request to be approved, however, the original I-140 petition must be “valid, ” i.e., it must have been approvable at the time it was filed.^[4] E.g., Khedkar, 2021 WL 3418818, at *6; Ravulapalli v. Napolitano, 773 F.Supp.2d 41, 47 (D.D.C. 2011); George v. Napolitano, 693 F.Supp.2d 125, 131 (D.D.C. 2010); Matter of al Wazzan, 25 I. & N. Dec. 359, 365-67, 2010 WL 4566196, at *6-7 (A.A.O. 2010).

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II. Factual Background

A. Rossville's Petition

In this case, plaintiffs attempted to follow the three-step process outlined above. First, Rossville applied for a DOL certification for Mr. Charaniya's prospective position, “Store Manager” of a “Convenience Store and Gas Station” located in Chattanooga, TN. AR 379. The application was received for processing on July 29, 2002, and was approved on May 2, 2003. AR 378-79; Compl. Ex. A [ECF No. 1-2]. The approved certification gave the following description of Mr. Charaniya's proposed job duties:

Manage operations of store; order food and gas supplies. Monitor inventory. Supervise and train employees, assign job duties, work schedules and evaluate performance. Perform daily accounting of funds and prepare banking transactions; reconcile cash with receipts. Maintain payroll and tax accounts.

AR 379; accord Pls.' Resp. to Defs.' Mot. for Summ. J. & Pls.' Cross-Mot. for Summ. J. & Br. in Supp. [ECF No. 19] (“Pls.' Cross-Mot.”) at 12.

In November 2003, Rossville filed an I-140 petition on behalf of Mr. Charaniya, see Compl. Ex. B [ECF No. 1-3]; AR 317-21, and Mr. Charaniya contemporaneously filed an I-485 Application for Adjustment of Status, see AR 265-71, 384. Attached to its petition, Rossville submitted its approved DOL certification, AR 385,...