The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
Document Nos. 11, 12, 13, 19
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") *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 - whom King's Island wants to hire for its restaurant - is 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.
This case concerns the priority date assigned to Mr. Zeng by the INS. Mr. Zeng is a citizen of China who is the beneficiary of an approved alien employment certification and visa petition filed by King's Island Chinese Restaurant, a Pennsylvania corporation. See Compl. ¶¶ 2, 7, 11.
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 ...