E. Atl. Servs. & Trading v. Mayorkas

1

EAST ATLANTIC SERVICES & TRADING LLC, et al., Plaintiffs, v. ALEJANDRO N. MAYORKAS, et al., Defendants.

Civil No. 23-1946 (RJL)

United States District Court, District of Columbia

September 27, 2024

MEMORANDUM OPINION [DKT. #11, 12, 18]

RICHARD J. LEON, United States District Judge.

Plaintiff East Atlantic Services & Trading LLC (“East Atlantic Services”) employed plaintiff Cleverson Vieira (“Vieira”) as a multinational manager and filed an 1-140 immigration petition on his behalf. The United States Citizenship & Immigration Services (“USCIS”) initially approved the petition. Later Vieira filed 1-485 applications to change his and his family's status to that of lawful permanent residents. Some time later, USCIS determined that the 1-140 petition should be revoked. It sent a Notice of Intent to Revoke (“NOIR”) to the plaintiffs, but they never received it. After receiving no response, USCIS revoked the 1-140 petition. Later, it denied the 1-485 applications noting that they did not have a valid 1-140 petition to support them.

Plaintiffs sued, alleging that USCIS's decisions revoking the 1-140 petition and I-485 applications without giving them notice and an opportunity to respond violated the Administrative Procedure Act (“APA”). USCIS then reopened the 1-140 petition and gave plaintiffs an opportunity to submit further evidence in support of the petition. The government defendants then moved to dismiss.

After briefing on the motion to dismiss concluded, and after reviewing the additional evidence submitted by plaintiffs, USCIS again revoked the 1-140 petition. Plaintiffs then filed a motion to amend the complaint in this case, seeking to add new facts related to the most recent revocation and to add a due process claim to the complaint.

Pending now are defendants' motion to dismiss, defendants' motion for relief from Local Civil Rule 7(n), and plaintiffs' motion to amend the complaint. Because plaintiffs' claims are nonjusticiable, and because their proposed amendments would be futile, I will GRANT defendants' motions and DENY plaintiffs' motions.

L Background

A. Legal Framework

The Immigration and Nationality Act (“INA”) allows certain immigrants to obtain permanent residency through the sponsorship of their employer. iTech U.S., Inc. v. Renaud, 5 F.4th 59, 60 (D.C. Cir. 2021); see 8 U.S.C. §§ 1153(b), 1255(a). One such category of immigrants is certain “multinational executives and managers.” 8 U.S.C. § 1153(b)(1)(C). This category allows foreign nationals who have worked in a managerial or executive capacity for at least one year in the last three years to come to the United States to work as a manager or executive for the same employer (or an affiliate or subsidiary). Id. Once a foreign national receives an immigrant visa in this category, he may apply to become a lawful permanent resident. Id. § 1255(a).

There are three steps in this process. iTech, 5 F.4th at 60. First, the Department of Labor must certify that: (1) there are not other able, willing, and qualified candidates for the position; and (2) that the foreign national's employment will not adversely affect the wages and working conditions of others similarly employed. Id.; 8 U.S.C. § 1182(a)(5)(A). Next, the employer must submit an 1-140 immigrant visa petition on behalf of the employee. iTech, 5 F.4th at 60; 8 U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5. Once the I-140 petition is granted and the employee has been granted an immigrant visa, he may file a Form 1-485 to adjust his status to that of a lawful permanent resident. iTech, 5 F.4th at 61; 8 U.S.C. § 1255(a); 8 C.F.R. § 245.2.

To give immigrant workers the flexibility to change jobs when there are delays in processing their 1-485 applications, Congress amended the INA to include a “portability provision.” Khedkar v. U.S. Citizenship & Immigr. Servs., 552 F.Supp.3d 1, 6 (D.D.C. 2021) (quoting Ravulapalli v. Napolitano, 773 F.Supp.2d 41, 45 (D.D.C. 2011)). This provision states that an immigrant's 1-140 petition will remain valid in support of his 1-485 application if: “(1) the immigrant's 1-485 application has been pending for 180 days or more and (2) the new job is ‘in the same or a similar occupational classification' as the one for which the immigfant's original employer filed the petition.” Id. (quoting 8 U.S.C. § 1154(j)); see also 8 C.F.R. § 245.25(a)(2).

Any petitions that have been approved under 8 U.S.C. § 1154-which includes I-140 petitions-may be revoked “at any time” if the Secretary of Homeland Security “deems [there] to be good and sufficient cause.” 8 U.S.C. § 1155; see id. § 1154(a)(1)(F). The Secretary has delegated this revocation authority to any officer of the USCIS “authorized to approve a petition under [§ 1154].” 8 C.F.R. § 205.2; see id. § 2.1. If “the necessity for the revocation comes to the attention of' the USCIS, a USCIS officer may revoke an 1-140 petition after giving “notice to the petitioner” and “opportunity to offer evidence in support of the petition.” Id. § 205.2(a), (b).

B. Factual and Procedural History

East Atlantic Services employed Vieira as a multinational manager and filed an I-140 petition on his behalf on February 19, 2016. Compl. [Dkt. #1] ¶¶ 23, 24. USCIS approved the petition on February 11, 2017. Id. ¶ 25. Sometime thereafter, Vieira and his dependents filed 1-485 applications to become lawful permanent residents. Id. ¶ 26. He submitted further documentation in support of his 1-485 application in January 2018, and he and his family were interviewed on May 1, 2018. Id. ¶¶ 27-28, 30. The applications remained pending for years. See id. ¶¶ 30-33.

On April 15, 2020, USCIS sent East Atlantic Services a NOIR, explaining that it intended to revoke the approved 1-140 petition. Id. ¶ 34. However, neither East Atlantic Services nor Vieira received it. Id. ¶ 37. After receiving no response to the NOIR, USCIS revoked the 1-140 petition on December 2, 2020. Id. ¶ 35. Shortly thereafter, on February 21, 2021, USCIS denied the 1-485 applications submitted by Vieira and his dependents. Id. ¶ 41. On May 26, 2021, Vieira filed a motion to reopen the denial of the 1-485 applications. Id. ¶ 42. USCIS dismissed the motion on November 17, 2022. Id. ¶ 53.

On July 6, 2023, plaintiffs filed a one-count complaint against Secretary of Homeland Security Alejandro Mayorkas, USCIS Director Ur Jaddou, and USCIS Associate Director Connie Nolan in their official capacities. See Compl. They allege that USCIS's revocation of the 1-140 petition, denial of the 1-485 applications, and dismissal of the motion to reopen were arbitrary and capricious, in violation the APA. Compl. ¶¶ 7187. They request an order from this Court that: (1) requires USCIS to reopen the 1-140 petition and give plaintiffs the opportunity to respond to the NOIR; (2) requires USCIS to reopen the 1-485 applications and “afford Mr. Vieira and his derivative family members the portability provisions” in the INA; and (3) declares USCIS's denial of the 1-485 applications a violation of the APA. Compl. at 20-21.

On August 31, 2023, after the lawsuit was filed, USCIS withdrew the decision revoking the 1-140 petition. Defs.' Mot. to Dismiss (“Mot”) [Dkt. #11] Ex. 1 at 2-3.^[1] On October 4, 2023, USCIS sent the parties a new NOIR and gave them an opportunity to respond. Mot. Ex. 2 at 2, 13.

On October 16, 2023, defendants filed a motion to dismiss for lack of jurisdiction and a motion for relief from Local Civil Rule 7(n). Mot.; Defs.' Mot. for Relief from Loc. R. 7(n) (“Mot. for Relief') [Dkt. #12], East Atlantic Services provided additional documentation in response to the NOIR on November 6, 2023. Defs.' Opp. to Pls.' Mot. to Amend the Compl. (“Opp. to Mot. to Amend”) [Dkt. #19] Ex. 1 at 1. Plaintiffs then filed their opposition to defendants' motions on November 22, 2023. Pls.' Opp. to Defs.' Mot. to Dismiss & Mot. for Relief (“Opp.”) [Dkt. #14]. Defendants filed their reply on November 29,2023. Reply in Support of Defs.' Mot. to Dismiss and Mot. for Relief from Loc. R. 7(n) (“Reply”) [Dkt. #15].

After reviewing the additional documentation plaintiffs submitted, USCIS revoked the 1-140 petition on December 12,2023.^[2] Opp. to Mot. to Amend Ex. 1 at 1-12. Plaintiffs moved for leave to amend the complaint on January 24, 2024, seeking to add facts related to the recent denial of the 1-140 petition and a claim for a violation of due process. Pls.' Mot. to Amend the Compl. (“Mot. to Amend”) [Dkt. #18]; id. at 8-9. Defendants filed their opposition on January 31, 2024. Opp. to Mot. to Amend.

II. MOTION TO DISMISS

A. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) is a “threshold challenge to the Court's jurisdiction,” requiring the Court to “determine whether it has subject matter jurisdiction in the first instance.” Taylor v. Clark, 821 F.Supp.2d 370 372 (D.D.C. 2011) (quoting Curran v. Holder, 626 F.Supp.2d 30, 32 (D.D.C. 2009)). When a defendant files a motion to dismiss under 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of the evidence, that the Court has subject matter jurisdiction. Sawahreh v. U.S. Dep't of State, 630 F.Supp.3d 155, 158 (D.D.C. 2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). At this stage, the Court must “assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotation omitted). The Court may also take judicial notice of facts “not subject to reasonable dispute” when it “can be accurately and readily determined from sources whose accuracy cannot reasonably be...