The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
MEMORANDUM OPINION DENYING THE DEFENDANTS' MOTION TO DISMISS;
DENYING THE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS;
DENYING WITHOUT PREJUDICE THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on the defendants' motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(h)(3) and motion for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c). On January 26, 1998, Longwood Village Restaurant Ltd., also known
as King's Island Chinese Restaurant ("the plaintiff" or "King's
Island"), a Pennsylvania corporation, filed an I-140 Immigrant Petition
on behalf of Mr. Chang Lian Zeng ("Mr. Zeng"), a citizen of the People's
Republic of China. During the time that it normally takes to process an
I-140 Immigrant Petition, a dispute arose between King's Island and the
Immigration and Naturalization Service ("INS") QF2*fn1 regarding Mr.
Zeng's priority date. The priority date is the date by which the U.S.
Department of State determines an applicant's place in line for an
immigrant visa number. A person must have a priority date to receive an
immigrant visa number.
This dispute revolves around King's Island's claim that Mr. Zeng
— King's Island wants to hire for its restaurant — already
the beneficiary of another immigrant petition filed by the Springfield,
Virginia Dunkin Donuts on August 24, 1990. Thus, King's Island contends
that Mr. Zeng should have a much earlier priority date than the one
assigned to him by the INS. The INS counters that because it revoked
Springfield Dunkin Donuts' petition on behalf of Mr. Zeng, he is not
entitled to the August 24, 1990 priority date.
The defendants move to dismiss the complaint or in the alternative for
a judgment on the pleadings. For the reasons that follow, the court will
deny the defendants' motion to dismiss and motion for a judgment on the
pleadings. Furthermore, the court determines that the INS erred in
revoking the immigrant petition filed by Springfield Dunkin Donuts on
behalf of Mr. Zeng and will order the INS to reinstate Mr. Zeng's
original August 24, 1990 priority date.
On August 24, 1990, Springfield Dunkin Donuts ("Springfield Donuts")
filed an application for alien employment certification to hire Mr. Zeng
as a kitchen helper. See Compl. ¶ 7. The U.S. Department of Labor
approved the application on December 26, 1990. See id. Subsequently,
Springfield Donuts filed an I-140 immigrant visa petition with the INS
Eastern Service Center to classify Mr. Zeng as an unskilled worker
pursuant to section 203(b)(A)(iii) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1101 et seq. See Compl. ¶ 8. On April 1,
1992, the Eastern Service Center approved the petition, stating that it
had forwarded the approved visa petition to the Department of State
Immigrant Visa Processing Center ("TIVPC"), which would contact Mr. Zeng
about the processing of his immigrant visa application and would make the
final determination as to which U.S. Consulate would handle the final
processing. See id.
As the beneficiary of an I-140 immigrant visa petition, Mr. Zeng
received a priority date. The notice of approved visa petition sent by
the Eastern Service Center listed August 24, 1990 as the priority date.
See id. A priority date allows an alien to apply for an immigrant visa,
which an alien must have in order to come legally to the United States to
work. The priority date is the date which the Department of State uses
to determine an applicant's place in line for an immigrant visa number.
The application for an immigrant visa, however, does not guarantee the
visa will be granted. See Pl.'s Opp'n to Mot. to Dis. ("Pl.'s Opp'n") at
4. Currently, there is a processing backlog because of the high demand
and the limited availability of immigrant visas in the employment-based
category. See id. As a result, the application process can take years
between the initial application and the date of final processing. See
id. On April 6, 1995, TIVPC notified Mr. Zeng that his case had been
sent to the American Consulate post in Guangzhou, China, and instructed
Mr. Zeng to begin his immigrant visa application process. The notice
also listed August 24, 1990 as the priority date. See Compl. ¶ 9.
On March 18, 1997, Mr. Zeng's attorney wrote to the American Consulate
post in Guangzhou to advise them that her client was "no longer interested
in the job offered by the petitioner [Springfield Donuts] and intend[ed]
to work for a similar employer." See Pl.'s Cross-Mot. for Summ. J. (Ex.
B). In addition, Mr. Zeng requested the return of the approved visa
petition and contract certification. See id. The letter also explained
that Mr. Zeng "intend[ed] to preserve his priority date in this case,
8/24/90 and use it in a new visa petition." See id. On January 14,
1998, the Eastern Service Center informed Springfield Donuts that the
approved petition had been revoked automatically, in accordance with
8 C.F.R. § 205.1(a)(3)(iii)(C), because Springfield Donuts had
withdrawn the visa petition. See Compl. ¶ 10.
Two weeks later, on January 26, 1998, King's Island filed an
application for alien employment certification to hire Mr. Zeng, also as a
kitchen helper. The Department of Labor approved the application on
February 16, 1999. See Compl. ¶ 11. King's Island then filed an
I-140 immigrant visa petition with the INS to classify Mr. Zeng as an
unskilled worker, again pursuant to section 203(b)(A)(iii) of the INA.
See id. The INS approved the visa petition on November 30, 1999, stating
that it had sent the approved visa petition to the
National Visa Center ("NVC"),*fn2 which would choose the consular post
to send the approved petition to and would contact Mr. Zeng about his
immigration visa process. This notice of approved visa petition,
however, listed January 26, 1998 as the priority date.
On December 14, 1999, King's Island wrote to NVC explaining that Mr.
Zeng was the beneficiary of a previously approved labor certification and
visa petition filed by Springfield Donuts that had an earlier priority
date: August 24, 1990. See Compl. ¶ 12. In addition, King's Island
informed NVC that Mr. Zeng wanted to use the August 24, 1990 priority
date to establish his place in line for an immigrant visa number. See
id. On March 17, 2000, King's Island wrote to Paul Novak, the Center
Director of the Eastern Service Center, to request the issuance of a new
notice of approved visa petition showing the earlier priority date.
King's Island also asked for the transfer of the case to the NVC so Mr.
Zeng could receive the necessary forms ("Packet III") and begin to
process his immigrant visa application. See Compl. ¶ 13.
On April 27, 2000, the Eastern Service Center issued a new notice of
approved visa petition to King's Island indicating August 24, 1990 as Mr.
Zeng's priority date and stating that it had sent this approved petition
to NVC, which would forward it to the appropriate consulate post for visa
processing. See Compl. ¶ 15. As a result, King's Island wrote to
NVC requesting Mr. Zeng's Packet III. On May 19, 2000, NVC responded to
King's Island's letter stating that it had not received the immigrant
visa petition mentioned in the letter and that the restaurant should file
a duplicate petition with the INS. See Compl. ¶ 16, 17.
On June 14, 2000, NVC responded to King's Island renewed request for
Mr. Zeng's forms. NVC informed King's Island that immigrant visa numbers
were not available for Mr. Zeng's use because his priority date was
January 26, 1998. See Compl. ¶ 18, 19. Even though the Eastern
Service Center had issued a new notice of approved visa petition to
King's Island listing August 24, 1990 as the priority date, the NVC
insisted that Mr. Zeng's priority date was January 26, 1998. At that
time, however, immigrant visa numbers were available to applicants in
Mr. Zeng's category: namely, unskilled workers with priority dates
before October 1, 1994. See id.
On June 21, 2000, King's Island notified NVC that the correct priority
date for Mr. Zeng should be August 24, 1990, not January 26, 1998.
King's Island also asked NVC for a Packet III showing the correct
priority date. See Compl. ¶ 20. On July 11, 2000, NVC wrote King's
Island to say that the immigrant visa petition had been received and
assigned case number GUZ000665002, but that the request for an earlier
priority date was under review, and that NVC would notify King's Island
when it made a decision. The letter listed January 26, 1998 as Mr. Zeng's
priority date. See Compl. ¶ 22. On August 3, 2000, NVC responded to
further inquiries from King's Island by informing the restaurant that it
should direct any questions to the INS office to which the petition was
originally submitted. See Compl. ¶ 24. On August 18, 2000, King's
Island wrote NVC and asked why the approved petition was returned to INS
for priority-date review. King's Island
also explained why it believed Mr. Zeng deserved the earlier priority
date. See Comp. ¶ 25. That same day, King's ...