Circuit Requires Notice to Immigrants Who Change Jobs

Circuit Requires Notice to Immigrants Who Change Jobs Bjoertvedt/Wikimedia Thurgood Marshall U.S. Courthouse at 40 Foley Square

The law allowing employer-sponsored workers to maintain the status quo on their immigration applications when they change jobs requires the government to give pre-revocation notice to either the immigrant applicants or their new employer, a federal appeals court has ruled.

The U.S. Court of Appeals for the Second Circuit in Mantena v. Johnson, 14-2476, interpreted the so-called “portability” provisions of the Immigration and Nationality Act and reinstated the case of Ganga Mantena, a computer programmer whose first employer was prosecuted for immigration fraud.

The employer then failed to tell Mantena, who had moved on to a new job, that the government had sent notice it was revoking her green card application.

“Mantena’s case illustrates the importance of notifying affected parties of material changes in their proceedings and statuses, and of giving them an opportunity to respond,” the circuit said. “This is true for any legal proceeding, but is a particular and continuing concern for immigrants throughout the multistep administrative process.”

Mantena, a native of India, came to the United States in 2000 on an H1-B visa. In 2003, she joined the New Jersey-based firm Vision Systems Group, which got her a new H1-B visa and filed an alien labor certification with the Department of Labor, as well as an I-140 “Immigrant Petition for Alien Worker” with the U.S. Citizenship and Immigration Service (USCIS).

Mantena then filed for an adjustment of status to obtain a green card. In 2009, she moved to a new job and sought to use the “portability” provisions in the American Competitiveness in the 21st Century Act of 2000 (AC-21) 8 U.S.C. §1154(j) and §1182(a)(5)(A)(iv) (AC-21).

The provisions allow her to change jobs and keep her application, as well as the employer’s visa petition and labor certification, current and pending. Mantena notified Citizenship and Immigration Service of her new job and requested a continuation of her own I-485 application for adjustment of status to that of a lawful permanent resident, and with it a green card.

But in 2010, the president of Vision Systems Group, Viswa Mandalapu, pleaded guilty to unlawfully hiring another immigrant employee. The immigration service then started green card revocation proceedings on all petitions submitted by Vision Systems Group, including Mantena’s, on the suspicion that they might all be fraudulent.

Mantena first heard about the problem when she learned her green card application had been denied on Nov. 20, 2012, when she was informed that the approval of the I-140 visa petition “has been revoked … on the basis of fraud and misrepresentation.”

Mantena sought relief in the Southern District, but Judge Lorna Schofield dismissed her case for lack of subject matter jurisdiction.

She appealed to the Second Circuit, where Judges Guido Calabresi, Chester Straub and Rosemary Pooler heard oral argument on Aug. 18. Mantena’s position was backed by amici curiae the American Immigration Council and American Immigration Lawyers Association.

Writing for the court Wednesday, Calabresi said the lower court erred in finding that the Immigration and Nationality Act’s “jurisdiction-stripping provisions” preclude judicial review of procedural deficiencies in Citizenship and Immigration Service decision-making where the Secretary of Homeland Security is making a discretionary decision.

Procedural challenges, Calabresi said, can still be heard by U.S. district courts.

“Regardless of whether the substantive revocation decision is shielded from judicial review, no party has provided authority to suggest that the procedure surrounding the substantive decision is similarly shielded,” he said. “We hold that is not, particularly where the procedural requirements are codified in statute or in regulations.”

Later, Calabresi said, “If Congress wishes to grant the secretary full discretion to use whatever procedures he wishes, including arbitrary ones, it must say so explicitly.”

The court rejected the government’s argument that Mantena lacked standing, finding that “USCIS acted inconsistently with the statutory portability provisions of AC-21″ by providing no notice to Mantena nor to her successor employer “who, as contemplated by AC-21, has in effect, adopted the original I-140 petition.”

The circuit then remanded the case for the lower court to determine which of the parties in this case is entitled to notice: the employee or the successor employer.

Joseph Hohenstein of Philadelphia argued for Mantena. Assistant U.S. Attorneys Christopher Connolly and Benjamin Torrance represented the government.

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