MANION, Circuit Judge. Srinivasa
Musunuru is a native and citizen of India who desires to become a
lawful permanent resident through the Immigration and Nationality
Act’s employment-based immigrant visa process. At one point in
time, he was the beneficiary of two visa petitions, the first filed
by his previous employer, Vision Systems Group (“VSGâ€), and the
second filed by his current employer, Crescent Solutions. Those visa
petitions were assigned priority dates, which placed him in a long
line of those eligible to receive a limited number of immigrant
visas. The priority date assigned to VSG’s visa petition allowed
him to file an application with the United States Custom and
Immigration Service (“USCISâ€) for adjustment of status to
permanent resident. But when an immigrant visa finally became
available to Musunuru, USCIS did not adjust his status. Instead, it
revoked VSG’s visa petition. This invalidated the earlier priority
date assigned to the petition, and left Musunuru with the later
priority date assigned to Crescent Solutions’ petition. Because the
priority date assigned to Crescent Solutions’ petition was much
later, Musunuru must now wait several more years before USCIS can
adjudicate his application allowing him possibly to become a
permanent resident.
USCIS revoked VSG’s petition because
the owners pleaded guilty to the unlawful hiring of an alien and mail
fraud, both in connection with an unrelated employee. Based on the
owners’ convictions, USCIS presumed that all the visa petitions
filed by VSG were fraudulent. Musunuru could have shown that his
employment was not fraudulent, but USCIS did not give him the
opportunity. USCIS sent notice of its intent to revoke the petition
to VSG only, even though VSG had gone out of business and Musunuru
had long since changed employers to Crescent Solutions.
USCIS did so because VSG was the
petitioner and the regulations provided notice to only the
petitioner. This left Musunuru unaware of the revocation. When he
finally discovered what had happened, he requested that USCIS
reconsider its revocation of VSG’s petition. USCIS denied the
request because Musunuru was the petition’s beneficiary, not the
petitioner, and therefore lacked standing to administratively
challenge the revocation.1 Musunuru filed a petition for judicial
review under the Administrative Procedures Act. He claimed that the
statutory portability provision that kept VSG’s visa petition valid
while he “ported†from VSG to Crescent Solutions also gave him a
procedural right to pre-revocation notice and an opportunity to
respond, as well as a right to administratively challenge the
revocation.
He also claimed that USCIS’s
application of the regulations denied him his right to procedural due
process as protected by the Fifth Amendment. The district court
granted USCIS’s motion to dismiss. It found that the regulations
did not entitle Musunuru to pre-revocation notice or an opportunity
to respond, and that Musunuru did not have standing to
administratively challenge the revocation. The district court also
found that Musunuru’s Fifth Amendment rights were not violated. We
reverse. We hold that USCIS applied the notice and challenge
regulations in a manner inconsistent with the statutory portability
provision that allowed Musunuru to change employers. We do not hold,
however, that Musunuru was entitled to notice and an opportunity to
respond, or to administratively challenge the revocation of VSG’s
visa petition.
Instead, we hold that Musunuru’s
current employer, Crescent Solutions, was entitled to these things.
We so hold because Congress intends for a nonimmigrant worker’s new
employer to adopt the visa petition filed by his old employer when
the worker changes employers under the statutory portability
provision. Thus, to give effect to Congress’s intention, the new
employer must be treated as the de facto petitioner for the old
employer’s visa petition. As the de facto petitioner, the new
employer is entitled under the regulations to pre-revocation notice
and an opportunity to respond, as well as to administratively
challenge a revocation decision.
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