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Seventh Circuit Rules Only Employers Can Challenge Immigration Decisions

Employment-based immigration law can be quite tricky because one attorney is technically representing two parties:  the U.S. employer and the foreign national whom the employer is sponsoring for a work visa.briefcase

Normally (and hopefully!), the employer-employee relationship remains on good terms.  However, if the relationship sours, the U.S. employer has great power to negatively affect the foreign national’s current immigration status and future immigration opportunities.

These issues were recently reviewed by the United States Court of Appeals for the Seventh Circuit in the case of Srinivasa Musunuru v. Loretta E. Lynch, et al.  The court reversed a lower court’s decision and ruled that only an employer is empowered to have the notice and opportunity to respond to an employment-based immigration case.  Read on to learn more about this case and how it may affect future employment-based immigrant petitions.

The Case of Srinivasa Musunuru v. Loretta E. Lynch, et al.

The plaintiff in the case, Mr. Srinivasa Musunuru, is an Indian foreign national whose first U.S. employer filed an employment-based immigration petition on his behalf.  This petition was assigned a priority date in accordance with the Immigration and Nationality Act, which marked Mr. Musunuru’s place in the long green card waiting line for Indian nationals.  Mr. Musunuru subsequently ended his employment with the first U.S. employer (we will call this employer Company A) and joined a second employer (Company B).  Company B also filed an employment-based immigrant petition on Mr. Musunuru’s behalf, and this petition benefited from the earlier priority date assigned to the petition filed by Company A.

When Mr. Musunuru’s green card application was finally eligible for adjudication, USCIS revoked Company A’s petition, which then invalidated the priority date assigned to that petition.  Because of this revocation, the petition filed by Company B was assigned a later priority date, which resulted in pushing Mr. Musunuru much further back in the green card waiting line – by several years.

USCIS revoked Company A’s petition because the company’s owners pled guilty to both immigration fraud (specifically the unlawful hiring of a foreign national) and mail fraud.  Because of these charges, USCIS presumed that all of Company A’s immigration petitions were fraudulent.

The Harm Caused to the Plaintiff

According to Mr. Musunuru, he would have been able to demonstrate that his employment with Company A was not fraudulent, but he was never given the opportunity to do so because USCIS only sent Company A the revocation notice.  When he discovered the revocation, Mr. Musunuru asked USCIS to reconsider its decision, but USCIS refused because, as the beneficiary rather than the petitioner in the immigration case, Mr. Musunuru lacked the eligibility to challenge the agency’s actions.  (This eligibility is called “standing.”)

Mr. Musunuru challenged this USCIS claim and stated that his procedural due process rights under the Fifth Amendment were violated.

The Court Proceedings

The case first went to a U.S. district court, which ruled that the agency regulations did not entitle beneficiaries such as Mr. Musunuru to receive notice of the revocation or an opportunity to respond to it.  The court also ruled that Mr. Musunuru’s rights under the Fifth Amendment were not violated by the agency’s actions.

However, the case was appealed to the Seventh Circuit, and that court ruled that, while Mr. Musunuru is still not eligible to challenge the revocation, his new employer – Company B – is eligible to have the opportunity to respond to the revocation.

The Rant

The American Competitiveness in the Twenty-First Century Act (AC21) permits foreign nationals to change employers during the pendency of an I-485 petition, if the new employment is of the same or similar occupational classification. This was the case in the case of Srinivasa Musunuru v. Loretta E. Lynch, et al., and therefore the successor employer most certainly should have had the opportunity to respond to the revocation of the original I-140 approval as petitioned by the previous employer. This incident highlighted the possibly precarious relationship between an employer and immigrant beneficiary, and when USCIS did not treat Musunuru’s successor employer as the de facto petitioner, they accentuated the uncomfortable level that an immigrant beneficiary depends on their employer/petitioner. USCIS was unquestionably in the wrong for not presenting the opportunity to the successor employer to respond to the revocation of the original I-140 approval, an inconsistency with the AC21’s statutory portability provisions. At least there was a positive outcome in reversal of USCIS’s determination.

Additional Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012

Obama Signs Immigration Executive Order, ImmigRantings, June 15, 2012

Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012