Kurapati v. United States Citizenship & Immigration Services

950 F. Supp. 2d 1230, 2013 WL 2477228, 2013 U.S. Dist. LEXIS 81134
CourtDistrict Court, M.D. Florida
DecidedJune 10, 2013
DocketCase No. 8:13-cv-68-T-30AEP
StatusPublished
Cited by1 cases

This text of 950 F. Supp. 2d 1230 (Kurapati v. United States Citizenship & Immigration Services) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kurapati v. United States Citizenship & Immigration Services, 950 F. Supp. 2d 1230, 2013 WL 2477228, 2013 U.S. Dist. LEXIS 81134 (M.D. Fla. 2013).

Opinion

ORDER

JAMES S. MOODY, JR., District Judge.

THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss (Dkt. 5), Plaintiffs’ Response in opposition (Dkt. 8), and Defendants’ Reply (Dkt. 12). The Court, haying reviewed the motion, response, reply, and being otherwise advised in the premises, concludes that the motion should be granted and this case should be dismissed.

BACKGROUND

This is an immigration case. Plaintiff Sunil Kumar Kurapati and his spouse Plaintiff Bharathi Mallidi are citizens of India. On May 10, 2004, Worldwide Software Services, Inc. (“Worldwide”) filed an Application for Alien Employment Certification (Form ETA-750) with the United States Department of Labor (“DOL”) on behalf of Kurapati, its employee (hereinafter “Labor Certification No. 1”). On October 4, 2006, the DOL certified the application.

On March 28, 2006, Worldwide filed a second Application for Permanent Employment Certification (Form ETA-9089) with the DOL on behalf of Kurapati (hereinaf[1232]*1232ter “Labor Certification No. 2”). On April 14, 2006, the DOL certified the application.

On May 15, 2006, Worldwide filed an Immigrant Petition for Alien Worker (US-CIS Form 1-140) with Defendants on behalf of Kurapati as a member of the professions with an advanced degree or of exceptional ability pursuant to Section 203(b)(2) of the Immigration and Nationality Act (“INA”). On June 12, 2006, Defendants approved the petition (hereinafter “1-140 No. 1”). This accorded Kurapati a priority date of March 28, 2006.

On May 30, 2007, Worldwide filed a second Immigrant Petition for Alien Worker (USCIS Form 1-140) with Defendants on behalf of Kurapati as a “professional” under the INA. On September 26, 2008, Defendants approved the petition (hereinafter “1-140 No. 2”). This accorded Kurapati a priority date of May 10, 2004.

On July 2007, Plaintiffs each filed an Application to Register Permanent Residence or Adjust Status (USCIS Form I-485) with Defendants.

On April 27, 2009, Kurapati, through his prior counsel, notified Defendants that he had elected to “port” to new employment pursuant to section 106(c) of the American Competitiveness in the Twenty-First Century Act (“AC21”) (P.L. 106-313), which provides that an employment-based immigrant visa petition shall remain valid where an alien changes jobs or employers if: (1) the alien’s Form 1-485 has been pending for 180 days or more; and (2) the alien’s new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

On July 5, 2012, Defendants issued a Notice of Intent to Revoke the Immigrant Petition for Alien Worker Worldwide filed on Kurapati’s behalf on May 12, 2006 OL-MO No. 1). The notice informed Worldwide that, because it had willfully misrepresented a material fact in its DOL Form ETA 9089, Worldwide’s 1-140 was subject to revocation and its labor certification on behalf of Kurapati was subject to invalidation. On July 5, 2012, Defendants also issued a Notice of Intent to Revoke the Immigrant Petition for Alien Worker filed on Kurapati’s behalf on May 30, 2007 OL-MO No. 2). This notice also informed Worldwide that it had willfully misrepresented a material fact in its Form ETA 9089, listed such misrepresentations, and indicated that Kurapati’s labor certification was subject to revocation. Defendants served these notices on Worldwide, which had since ceased operations.

On August 4, 2012, Kurapati, through prior counsel, filed a combined response to each Notice of Intent to Revoke. Worldwide did not participate in the response. On September 12, 2012, Defendants revoked both the 1-140 No. 1 and the 1-140 No. 2. The revocations stated that Kurapati was not eligible for the benefits sought. The revocations also pointed out numerous flaws in Worldwide’s 1-140 petitions. The revocations stated, in pertinent part that “[t]he petitioner failed to respond to US-CIS’ Intent to Revoke the approval of the 1-140 petition by August 7, 2012, as requested. USCIS notes the attorney, on behalf of the beneficiary, responded to the notice of Intent to Revoke. USCIS further notes, the petitioner or the attorney of record on behalf of the petitioner, must respond to USCIS’ Notice of Intent to Revoke.” (Dkt. 1-12).

On September 27, 2012, Kurapati, through prior counsel, filed administrative appeals with Defendants regarding the decisions to revoke each of the previously approved 1-140 petitions.

On October 20, 2012, Defendants denied Kurapati’s application for adjustment of status stating that he was ineligible for adjustment of status as a matter of law because no immigrant visa was immediate[1233]*1233ly available to him as a result of the revocation of the immigrant visa petition filed on his behalf. On October 20, 2012, Defendants also denied Plaintiff Mallidi’s application for adjustment of status stating that she was ineligible for adjustment of status as a matter of law due to the denial of Kurapati’s application and her dependent status.

On January 8, 2013, Plaintiffs filed the instant action. On March 7, 2013, Defendants rejected Kurapati’s appeals. Defendants now move to dismiss Plaintiffs’ complaint because Plaintiffs do not have standing to challenge the revocations of Worldwide’s 1-140 Petitions and this Court lacks subject matter jurisdiction to review the revocations of Worldwide’s I-140 Petitions.

LEGAL STANDARD FOR STANDING

The Eleventh Circuit has noted that “because a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case.... ” Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir.2001). Standing is jurisdictional; therefore, if a court dismisses a case for lack of standing, it has the same effect as a dismissal for lack of subject matter jurisdiction. See Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.2008) (per curiam). The party “invoking federal jurisdiction bears the burden of establishing” standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

DISCUSSION

I. Kurapati’s Standing

Defendants argue that Kurapati lacks standing to challenge the revocations of Worldwide’s I-140s because, as only the beneficiary of the petitions, he is not an “affected party”. The Court agrees. In the instant case, Worldwide is the petitioner. In other words, Kurapati, although a beneficiary of the petition, does not have a right to enforce the petition process. Accordingly, Kurapati does not have standing to challenge the revocation of Worldwide’s 1-140 petitions. Notably 8 C.F.R. § 103.3(a)(l)(iii)(B), which regulates whether unfavorable decisions on applications are reviewable, states: “For purposes of this section ... affected party ... means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition.” (emphasis added).

Other courts have applied the language in section 103.3 to revocations of 1-140 visa petitions.

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Bluebook (online)
950 F. Supp. 2d 1230, 2013 WL 2477228, 2013 U.S. Dist. LEXIS 81134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kurapati-v-united-states-citizenship-immigration-services-flmd-2013.