Zamana v. Renaud
| Decision Date | 30 March 2022 |
| Docket Number | 1:21-cv-125 |
| Parties | ANDREII ZAMANA, et al., Plaintiffs, v. TRACY RENAUD, Senior Official Performing Duties of Director, U.S. Citizenship and Immigration Services, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION (DOC. 14)
This civil case is before the Court on a motion to dismiss for lack of subject matter jurisdiction (Doc. 14) by Defendant United States Citizenship and Immigration Services (“USCIS” or “the Agency”), and the parties' responsive memoranda (Docs. 16, 17).
This case arises from our nation's convoluted immigration system. The law permits qualified foreign citizens to become permanent U.S. residents by securing employment with an American company. 8 U.S.C. § 1153(b)(3)(A)(ii). To be eligible, hopeful applicants and their prospective employers endure a three-step process.
First, the employer submits an “Application for Permanent Employment Certification, ” using ETA Form 9089, to the Department of Labor (“DOL”). See 8 U.S.C. § 1182(a)(5)(A)(i); 20 C.F.R. § 656.3. The Department of Labor is charged with certifying that (1) “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 (2) “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). Detailed regulations govern DOL's certification decisions. See generally 20 C.F.R. Part 656. For instance, the employer must attest that it will offer wages equal or exceeding prevailing wages for similar work, id. at 656.10(c)(1), that the employer will be able to place the prospective foreign employee on the payroll immediately, id. at 656.10(c)(4), and that the employer has engaged in recruitment activities including by placing ads on “Job search Web site[s], ” id. at 656.17(e). In addition, DOL has authority to audit information submitted in an ETA Form 9089 for veracity, id. at § 656.20(a), and to subject the employer to “supervised recruitment” if DOL determines that “documentation was inadequate, or determines a material misrepresentation was made, ” id. at § 656.20(f).
Once the employer has made all the required attestations and submitted the required evidence, a “Certifying Officer” at DOL is charged with deciding to either grant or deny the labor certification. Id. at § 656.24(b). The Certifying Officer determines whether “the employer has met the requirements” of DOL's regulations, whether any U.S. workers are qualified and available for the job “at the place of the job opportunity, ” and whether the employing the foreign citizen will “have an adverse effect upon wages for similar employees “in the area of intended employment.” Id. at 656.24. If the Certifying Officer finds that the employer has satisfied the requirements of the statute and DOL's implementing regulations, “the Certifying Officer must send the certified application and complete Final Determination form to the employer … indicating the employer may file all the documents with the appropriate [Department of Homeland Security] office.” Id. at § 656.24(d). Fundamental to the Certifying Officer's decision is the premise that the applicant was the actual intended employer for the prospective foreign citizen employee, and that the applicant provided the true and correct place of employment. Without those two facts-that the applicant was the true employer, and the job location was correct- certifying the application would be impossible.
Second, after securing the certified application from DOL (the “labor certification”), the employer delivers it to a different executive branch department. The United States Customs and Immigration Services (“USCIS”) is an agency with the the Department of Homeland Security (“DHS”). USCIS is charged with issuing visas that confer legal permanent resident status. 8 C.F.R. §§ 103.2, 204.5. The employer sends the labor certification and a Form I-140 “Immigrant Petition for Alien Worker” to USCIS. See 8 U.S.C. 1154(a)(1)(E). The Form I-140 requests only basic information about the employer. Instructions for the Form I-140 require only that “A U.S. employer may file this petition for … [a] member of the professions with a baccalaureate degree, ” Form I-140 Instructions at 1 (emphasis supplied), and that the employer must include the labor certification and evidence of the potential employee's credentials, id. at 5-6, 7. Likewise, the regulations governing “petitions for employment-based immigrants” permit “[a]ny United States employer desiring and intending to employ an alien” to file a Form I-140 petition. The regulations require an employer to submit an original copy of the labor certification, and evidence of its ability to pay the immigrant's wages, but do not impose any requirements on the location of the employer's job site or the employer's corporate structure. See 8 C.F.R. §§ 204.5(g), (1). Once a petitioner's Form I-140 is approved, she may proceed to the third and final step.
Third, an employment-based immigrant who has successfully petitioned may enter the United States and apply for an “adjustment of status” to become a “person admitted for permanent residence.” 8 U.S.C. § 1255(a). For many, that finish line represents a hard-earned promise of opportunity and success.
But the moment can be fleeting.
The 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 section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition.
8 U.S.C. § 1155. The Sixth Circuit has held that the decision to revoke the approval of a petition is “discretionary” and therefore falls under the so-called “jurisdiction-stripping” provision at 8 U.S.C. § 1252(a)(2)(B)(ii). Mehanna v. U.S. Citizenship & Immigration Services, 677 F.3d 312, 315 (6th Cir. 2012). This clause bars court review of USCIS decisions to revoke “previous approval of a visa petition.” Id. at 317. The Sixth Circuit has also held, however, that federal courts retain jurisdiction to review “nondiscretionary decisions … even where they underlie determinations that are ultimately discretionary.” Jomaa v. United States, 940 F.3d 291, 296 (6th Cir. 2019).
Plaintiff Andreii Zamana went through the entire process described above. Zamana (or “Plaintiff”) is a citizen of Russia. Plaintiff NetCracker Technology Corporation (“NTC”), an IT company based in Waltham, Massachusetts, sought to hire Zamana as a Technical Support Manager. NTC submitted the ETA Form 9089 to DOL with all the accompanying documentation and evidence it required. NTC used its Ohio business address, 221 East 4th Street, Cincinnati, Ohio (the “Ohio Address”), because that was the “place where the alien [wa]s to perform such skilled or unskilled labor.” 8 U.S.C. § 1182. DOL approved the application and returned a labor certification. On November 12, 2019, NTC and Zamana (collectively “Plaintiffs”) submitted the labor certification and a completed Form I-140 to USCIS. On November 20, 2019, USCIS granted Plaintiffs' petition which permitted Zamana to move to the United States and start working.
One month later, on December 23, 2019, USCIS issued Plaintiffs a Notice of Intent to Revoke approval of his petition (“NOIR”). The NOIR claimed that the petition was approved in error because NTC was not authorized to do business in Ohio, and that the address provided on both the ETA Form 9089 (sent to DOL), and the Form I-140 (sent to DHS) was not Zamana's true place of employment. Plaintiffs responded with voluminous evidence but, on May 26, 2020, in a letter signed by a Director L. Miller (Officer #0221), USCIS officially revoked approval of Zamana's petition and, thereby, terminated his legal permanent resident status.
The Agency's letter made, essentially, three findings. First, USCIS claimed that Zamana's true employer was NetCracker Technology Solutions Inc. (“NTS”). Id. at 20. The Agency explained that it had done a Google search and discovered that a company called NetCracker Technology Solutions was registered at the Ohio address Plaintiffs had provided in its submissions to DOL and USCIS. USCIS took this to mean that Zamana was working for NTS rather than NTC. Plaintiffs attempted to explain that NTS was merely a non-functioning subsidiary of NTC that happened to be registered at the same address, but USCIS declined to credit that explanation because it “ha[d] doubt that both the parent company and its subsidiary operate out of the same address.” Id. USCIS expressly disregarded the Department of Labor's labor certificate, asserting, without citation to authority, that it was “not bound by [DOL] decisions and will only consider them as supplemental evidence.” Id. at 21. And USCIS asserted that “[r]egulations require that a Form I-140 is filed by the actual intended employer, ” again without citation to any regulation.
Second, USCIS concluded NTC was not doing business in Ohio. USCIS asserted NTC's Ohio business license, lease agreement for office space in Ohio, invoices for purchases made in Ohio, and rent and utility payments were not enough to show that NTC was doing business in Ohio. Id. at 22.
Third USCIS rejected that NTC had ever provided Zamana a “bona fide job offer.” Id. at 23. The Agency disregarded evidence that NTC (not NTS) had posted ads for the job...
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