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Rajasekaran v. Hazuda

United States Court of Appeals, Eighth Circuit

December 1, 2015

Sriram Rajasekaran; Kasthuri Sriramvenugopal; Mughil Sriramvenugopal, Plaintiffs - Appellants
v.
Mark Hazuda, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; Leon Rodriguez, Director, United States Citizenship and Immigration Services; Eric H. Holder, Jr., Attorney General of the United States; Jeh Johnson, Secretary, Department of Homeland Security, Defendants - Appellees

Submitted September 22, 2015

Page 1143

Appeal from United States District Court for the District of Nebraska - Lincoln.

For Sriram Rajasekaran, Kasthuri Sriramvenugopal, Mughil Sriramvenugopal, Plaintiff - Appellants: Scott Eric Bratton, Attorney, Margaret Wong, Margaret W. Wong & Associates Co., Lpa, Cleveland, OH.

For Mark Hazuda, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, Leon Rodriguez, Director, United States Citizenship and Immigration Services, Eric H. Holder, Jr., Attorney General of the United States, Jeh Johnson, Secretary, Department of Homeland Security, Defendant - Appellees: Glenn Matthew Girdharry, Assistant Director, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC; Sairah G. Saeed, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.

OPINION

Page 1144

BENTON, Circuit Judge

The U.S. Citizenship and Immigration Services (" USCIS" ) revoked an I-140 petition and then denied Sriram Rajasekaran's I-485 adjustment-of-status application. Rajasekaran sought judicial review. The district court[1] dismissed for lack of subject-matter jurisdiction. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

To hire an immigrant-worker, an employer must file an I-140 petition with USCIS. INA § 203(b)(2). Once approved, the immigrant can file an I-485 adjustment-of-status application. 8 U.S.C. § 1255. The American Competitiveness in the Twenty-First Century Act of 2000 (" AC21" ) creates a job-portability mechanism: if an I-485 application is not adjudicated within 180 days, the underlying I-140 petition remains valid if the immigrant changes jobs (" ports" ), so long as the immigrant stays in the same or similar occupational classification. 8 U.S.C. § 1154(j). Porting eliminates the need for the new employer to file an I-140 petition on the immigrant's behalf. Id.

The Attorney General may revoke an approved I-140 petition " at any time, for what he deems to be good and sufficient cause. . . ." 8 U.S.C. § 1155. Notice of an intent to revoke must be sent to the employer-petitioner. 8 C.F.R. § 205.2(b). USCIS must allow the employer to examine evidence " which constitutes the basis for the decision. . . ." § 103.2(b)(16). The employer may submit evidence to support the petition, and if revoked, may appeal. Id.; § 205.2(c), (d). The beneficiary of a petition--the immigrant-worker--has no standing to appeal to the agency for review of an I-140 revocation. § 103.3(a)(1)(iii)(B).

Rajasekaran is a native and citizen of India. In 2006, Pacific West Corporation filed an I-140 petition on his behalf. USCIS approved it. Rajasekaran and his family filed I-485 adjustment-of-status applications, which remained unadjudicated for more than 180 days. Rajasekaran ported twice to new employers. Neither filed an I-140 petition on his behalf. In 2012, Pacific West closed. Later that year, USCIS issued a Notice of Intent to Revoke the I-140 petition by Pacific West on behalf of Rajasekaran. The Notice was sent to Pacific West and its lawyer, alleging the I-140 petition was fraudulently filed. Pacific West did not respond.

Rajasekaran learned of the Notice through Pacific West's lawyer. He responded, requesting more specific information about the allegations. USCIS provided nothing further. Instead, it revoked the I-140 petition for cause, denied Rajasekaran's motion to reopen/reconsider, and denied his I-485 application. Rajasekaran sought judicial review. He argued that USCIS had revoked the I-140 petition without fully disclosing ...


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