Eleventh Circuit Court of Appeals Says Beneficiary of Approved I-

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Eleventh Circuit Court of Appeals Says Beneficiary of Approved I-140 Has Standing to Challenge an I-140 Revocation

by: Immigration & Compliance of Greenberg Traurig, LLP - Inside Business Immigration

Tuesday, September 30, 2014

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On September 29, 2014, the United States Court of Appeals for the Eleventh Circuit ruled that a beneficiary of an approved I-140 visa petition has standing to challenge the revocation of a previously approved I-140 visa petition.

In this case, Mr. Kurapati was the beneficiary of a valid I-140 petition filed by Worldwide Web Services, Inc. (Worldwide). Mr. Kurapati and his wife subsequently filed their applications for adjustment of status on August 14, 2007. On April 27, 2009, Mr. Kurapati notified USCIS of his intent to port to a new employer. On July 5, 2012, while the applications for adjustment of status were still pending, USCIS issued notices of intent to revoke (NOIR) for Mr. Kurapati’s approved I-140. USCIS eventually revoked Mr. Kurapati’s I-140 visa petition on September 12, 2012 based on Worldwide’s alleged misstatement of material fact in its applications. Because Worldwide has ceased to exist, Mr. Kurapati himself has been responding to the NOIR and appealing the revocations with the AAO. The AAO rejected the appeals citing Mr. Kurapati’s lack of standing under the regulations. See 8 CFR Section 103.3(a)(1)(iii)(B). Mr. Kurapati also filed a complaint with the U.S. District Court for the Middle District of Florida, and the court also dismissed the complaint alleging that Mr. Kurapati also lacked Article III standing, prudential standing, and the court lacked subject matter jurisdiction.

The United Court of Appeals for the Eleventh Circle concluded the following:

The district court erred in dismissing Kurapati’s complaint for lack of constitutional standing because the definition of “affected party” pursuant to the regulations does not preclude the beneficiary from having standing in the district court.
A beneficiary of an I-140 visa petition is within the “zone of interests” as defined by the applicable provisions of the INA, and thus the he falls within the class of plaintiffs Congress has authorized to challenge the denial of an I-140 visa petition. Thus, the beneficiary has prudential standing.
The district court erred in dismissing Mr. Kurapati’s complaint for lack of subject matter jurisdiction, as the complaint raises a question of law.
In light of 8 USC Section 1154(j), the regulations should be construed to require that beneficiaries of I-140 visa petitions are to be served with the NOIR and must be given the opportunity to be heard prior to USCIS making the decision to revoke.