United States District Court, S.D. New York
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
Plaintiff Ganga Mantena seeks review of agency determinations by Defendants Jeh Johnson, Secretary of the United States Department of Homeland Security ("DHS Secretary"), Lori Scialabba, Acting Director of the United States Citizenship and Immigration Services ("USCIS Director") and Mark J. Hazuda, Director of the USCIS Nebraska Service Center,  alleging that their determinations violated the Administrative Procedures Act, 5 U.S.C. §§ 701-06 ("APA") and Plaintiff's constitutional rights. Defendants move to dismiss the Amended Complaint both for lack of subject matter jurisdiction and for judgment on the pleadings. Because the Court lacks subject matter jurisdiction over Plaintiff's claims under the APA and because the Amended Complaint fails to state a claim upon which relief can be granted, Defendants' motion is granted.
I. Statutory Framework
This case involves Plaintiff's petition for employment-based permanent legal status, commonly known as "green card status, " which entails a three-step process involving submissions from both the employer and the alien employee. See United States v. Ryan-Webster, 353 F.3d 353, 355-56 (4th Cir. 2003) (describing administrative process for obtaining employment-based permanent legal status). First, an employer in the United States must apply to the Department of Labor ("DOL") for an Alien Labor Certification. 8 U.S.C. §§ 1182(a)(5)(A), 1153(b)(3)(C); Ryan-Webster, 353 F.3d at 355. In granting the Alien Labor Certification, the DOL must be satisfied 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).
Second, once the Alien Labor Certification is granted, the employer must file an Alien Labor Certification along with a form I-140 Immigration Petition for Alien Worker ("I-140"), pursuant to 8 U.S.C. § 1153(b). See 8 C.F.R. §§ 204.5(a), (c); see also Ryan-Webster, 353 F.3d at 356. The I-140 constitutes a request that the alien be classified in a specified visa preference category. U.S.C. § 1153(b). If the I-140 is approved, the alien receives a "priority date, " which is the date on which DOL accepted the application for Alien Labor Certification. See 8 U.S.C. 1153(e)(1). The priority date, in turn, determines the alien's position in the line for an immigrant visa number. See id. Pursuant to 8 U.S.C. § 1155, and significant for purposes of the present action, the DHS Secretary is authorized to revoke an approved I-140 at "any time, for what he deems to be good and sufficient cause...."
Third, once an I-140 is approved and the alien has received an immigrant visa number, an alien who is already resident in the United States must file with USCIS an I-485 Application for Adjustment of Status to Lawful Permanent Resident ("I-485"). 8 U.S.C. § 1255(a); 8 C.F.R. § 204.5(n)(1); Ryan-Webster, 353 F.3d at 356. Acting pursuant to 8 U.S.C. § 1255, the Attorney General then determines whether to "adjust" the resident alien's status to that of a lawful permanent resident entitled to work within the United States. Ryan-Webster, 353 F.3d at 356. If the Attorney General determines to adjust the alien's status, the alien receives a "green card." Id.
II. Factual and Procedural Background
Plaintiff is a native and citizen of India and has been employed as a software engineer in the United States since 2000. Plaintiff first entered the United States on an H-1B visa petition filed by Covansys, formerly known as Complete Business Solutions, Inc. In 2003, Plaintiff left Covansys and joined Visions Systems Group, Inc. ("VSG"), which obtained a new H-1B visa on Plaintiff's behalf.
VSG subsequently initiated the process for Plaintiff to become a lawful permanent resident of the United States by filing an application for an Alien Labor Certification. On or around January 19, 2006, VSG obtained approval of the Alien Labor Certification. On or around September 26, 2006, VSG filed an I-140 with USCIS, and on or around November 21, 2006, the I-140 was approved. On or around July 24, 2007, Plaintiff filed an I-485. On or around December 16, 2009, Plaintiff notified USCIS that she had changed employers and was working at CNC Consulting, Inc. Plaintiff's I-485 remained pending and did not require modification because she had "ported" the work authorization obtained from her former employer to her new employer.
On or about October 7, 2010, the president of VSG pleaded guilty to mail fraud in connection with a petition filed on behalf of a different VSG employee, who was unknown to Plaintiff. Subsequently, USCIS decided to revoke all petitions filed by VSG, concluding that all such cases "may be fraudulent." On or around June 28, 2012, USCIS sent VSG a Notice of Intent to Revoke the I-140 obtained for Plaintiff. VSG was no longer in business and did not respond to the notice. USCIS did not send the notice to Plaintiff. On or around October 19, 2012, USCIS revoked the I-140 for failure to respond to the notice. USCIS did not notify Plaintiff of the I-140 revocation. On or around November 20, 2012, USCIS denied Plaintiff's I-485 Application because the I-140 filed on her behalf had been revoked. Between December 2012 and September 2013, Plaintiff filed three successive motions to reopen/reconsider the I-485 denial. USCIS denied all three motions.
On or about October 11, 2013, Plaintiff filed the Amended Complaint in this action. Count One of the Amended Complaint seeks review of the I-140 revocation and the I-485 denial, alleging that the revocation and denial and subsequent decisions affirming the revocation and denial were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and "contrary to constitutional right, power, privileges, or immunity, " in violation of §§ 706(2)(A)-(B) of the APA. Count Two of the Amended Complaint alleges that Plaintiff was denied a meaningful opportunity to challenge the basis of the I-140 revocation, the I-185 denial and the "cutting off" of her related employment authorization and travel permissions, in violation of Plaintiff's substantive due process rights. Finally, Count Three of the Amended Complaint requests attorneys' fees pursuant to 28 U.S.C. § 2412(d) and 5 U.S.C. § 504.
On February 20, 2014, Defendants filed their motion to dismiss. On March 24, 2014, Plaintiff filed her opposition, and, without seeking the Court's leave as directed in the Court's Individual Rules, also filed a motion for summary judgment. On April 3, 2014, Defendants filed their reply without addressing Plaintiff's summary judgment claims, and requested that the Court hold in abeyance its consideration of Plaintiff's motion for summary judgment pending a decision on the motion to dismiss. On April 18, 2014, Plaintiff's motion for summary judgment was denied ...