US Appeals Court: USCIS has final say when it revokes approval of visa application

A US Appeals court (District of Columbia) recently held that the US Citizenship and Immigration Services (USCIS) has the “unreviewable discretion” to revoke its earlier approval of a Form I-140 application. In other words, it affirmed that the courts do not have the power to review such a course of action by the USCIS.
In its order, the three-judge bench observed that they joined nine other appellate courts, which had held the same. The Appeals Court in its order, by drawing reference to various court decisions, explained the entire process associated with obtaining an employment-based green card (permanent residency).
The Immigration and Nationality Act (INA) allows a certain number of “qualified” immigrants to receive permanent residency through employer sponsorship. However, immigrant workers and their potential employers must follow a three-step process.
– First, a certification from the Department of Labour (DOL) is required.
– Once the DOL certifies the position, the USCIS must approve the employer’s visa petition (Form I-140). Once this form is approved, it is valid indefinitely. However, the approval may be revoked “at any time”.
– After the application in Form I-140 is approved, an immigrant worker is eligible to stand in queue for a visa number, which is issued by the Department of State. Immigrants from India face a huge backlog and have to wait for many years for a permanent residency visa.
– Finally, when the number becomes current, the immigrant worker can file a Form 1-485 to have his non-immigrant status adjusted to become a permanent resident entitled to work and live in the US.
The Appeals Court observed that at any point in this process outlined above, a USCIS officer may revoke the approval of an I-140 immigrant visa application “when the necessity for the revocation comes to its attention”. This statutory authority stems from Section 1155, which provides that the Secretary of Homeland Security (Secretary) “may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him including immigrant visa applications based on Form I-140”. An administrative appeal can be filed by the applicant.
The backdrop of this case is that iTech, an IT service company, had filed an I-140 application in 2015 on behalf of its employee, who is an Indian citizen. The approval given by USCIS was revoked in 2017. The grounds for revocation were that the company misrepresented the employee’s degree-conferring institution and employment qualifications. It also did not establish its ability to pay the proffered wages. Later in August 2018, iTech filed a motion to reopen the case, which was subsequently denied.
This led to the company suing the USCIS by claiming that its decision to revoke was arbitrary and capricious. However, the District Court dismissed the plea. “The District Court found that the US Congress placed visa revocation decisions, within the unreviewable discretion of the executive and dismissed iTech’s suit for lack of jurisdiction.”
The order given by the District Court was affirmed by the Appeals Court.

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