The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiffs Ajay Naidu Ravulapalli and Lakshmi Alekhya Ravulapalli (collectively, "Plaintiffs") bring this action against Defendants Janet Napolitano, Secretary of the Department of Homeland Security, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services ("USCIS"), and David L. Roark, Director of the USCIS Texas Service Center, in their official capacities (collectively, "Defendants"). Plaintiffs contend that Defendants unlawfully denied their applications to adjust their immigration status in violation of federal law and pre-existing USCIS policy. Plaintiffs assert causes of action under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"), the Mandamus Act, 28 U.S.C. § 1361, and the Fifth Amendment to the U.S. Constitution. Presently pending before the Court is Defendants'  Motion to Dismiss or, in the Alternative, to Transfer. For the reasons explained below, the Court shall GRANT-IN-PART and DENY-IN-PART Defendants' motion to dismiss and DENY Defendants' alternative motion to transfer.
A. Statutory and Regulatory Background
The Immigration and Nationality Act, codified in Title 8 of the U.S. Code and its accompanying regulations, sets out a three-step process by which an alien living in the United States may become a permanent resident based on an employment opportunity. First, the employer seeking to hire the alien must apply to the Department of Labor for certification that the issuance of an employment-based visa and admission of the alien worker to the United States will not have an adverse effect on the American work force. See 8 U.S.C. § 1182(a)(5)(A)(i). If the Department of Labor grants this certification, the employer may then file a petition to have the alien worker classified according to one of several preference categories, such as aliens who are members of professions holding advanced degrees whose skills will benefit the economy. See id. § 1153(b) & 1154(a)(1)(F). The employer files this petition by submitting a Form I-140 Immigrant Petition for Alien Worker ("Form I-140" or "I-140 petition"), to USCIS. See 8 C.F.R. § 204.5. The alien is considered the "beneficiary" of the I-140 petition.
The third step is for the employee beneficiary to file an application to adjust his or her status to become a lawful permanent resident. See 8 U.S.C. § 1255. This application is filed on a Form I-485, Application to Register Permanent Residence or Adjust Status ("Form I-485" or "I-485 application"). An approved I-140 petition is a prerequisite to the approval of an I-485 application. See 8 U.S.C. § 1255(a). The spouse of an employee beneficiary may also file an I-485 application based on the marital relationship. 8 U.S.C. § 1553(d). Prior to July 31, 2002, an alien worker could not file a Form I-185 until the underlying Form I-140 had been approved. See 8 C.F.R. § 245.2(a)(2)(i) (2000) ("Before an application for adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved."). An employer may withdraw an I-140 petition at any time while it is pending or after it is approved until the beneficiary is granted adjustment of status based on the petition. 8 C.F.R. § 103.2(b)(6).
In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313, 114 Stat. 1251 ("AC21"). Section 106(c) of AC21 provides that an I-140 petition "for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which the petition was filed." 114 Stat. at 1254; 8 U.S.C. § 1154(j). This provision, known generally as the "Portability Provision," was designed to provide job flexibility for applicants whose visas had been approved but whose applications for adjustment of status were not adjudicated in a timely fashion. Immediately after AC21 went into effect, an alien who obtained an employment-based visa petition based on an approved Form I-140 submitted by an employer could file an I-485 application and, if the application was not approved within 180 days, switch to another job within the same field without fear that the application would be denied due to the lack of an approved visa petition for the new employer.
On June 19, 2001, USCIS*fn1 issued a policy memorandum outlining procedures for processing visa petitions based on the changes imposed by AC21. See Compl. ¶ 36 & Ex. B (6/19/2001 Memorandum from Michael A. Pearson, Exec. Assoc. Comm'r, to Service Center Directors and Regional Directors). The policy memorandum explained that adjudicators should not deny applications for adjustment of status on the basis that the alien has changed jobs. See id. § F(1). The memorandum stated that when the applicant no longer intends to be employed by the employer who sponsored the visa petition, USCIS should request a letter of employment from the new employer to determine whether the new job is in the same or similar occupation. Id.
Effective July 31, 2002, federal regulations were amended to permit a I-485 application to be filed concurrently with an I-140 Petition when a visa is available. See 8 C.F.R. § 245.2(a)(2)(i). The purpose of this rule change was to eliminate the delay that occurred between the approval of the I-140 Petition and the filing of the I-485 application. See Allowing in Certain Circumstances for the Filing of Form I-140 Visa Petition Concurrently with a Form I-485 Application, 67 Fed. Reg. 49561-01 (July 31, 2002).
On August 4, 2003, USCIS issued a memorandum addressing the requirements of the AC21 Portability Provision in light of the change in regulations allowing concurrent filing of I-140 petitions and I-485 applications. See Compl. ¶ 37 & Ex. C (8/4/2003 Memorandum from William R. Yates, Acting Assoc. Dir. for Operations, USCIS, to USCIS Service Center Directors and Regional Directors). The memorandum explained that the guidance from the June 2001 policy memorandum was still in effect, explaining that "[i]f the Form I-140 ('immigration petition') has been approved and the Form I-485 ('adjustment application') has been filed and remained unadjudicated for 180 days or more (as measured from the Form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation." Id. § A. The memorandum further explained that in cases where the employer withdraws the I-140 petition after it has been approved and after the I-485 application has been pending for 180 days, the I-140 petition shall remain valid pursuant to the AC21 Portability Provision. See id. § B. In such cases, the alien must then provide USCIS evidence of a qualifying offer of employment from a new employer, or else the I-485 application will be denied. Id. The memorandum also explained that in cases where approval of a Form I-140 is revoked or the employer withdraws the Form I-140 before the alien's Form I-485 has been pending for 180 days, the approved Form I-140 is no longer valid with respect to the alien's application. Id.
On May 12, 2005, USCIS issued another guidance memorandum addressing the processing of I-140 petitions and I-485 applications. See Compl. ¶ 39 & Ex. D (5/12/2005 Memorandum from William R. Yates, Assoc. Dir. for Operations, USCIS to Regional Directors and Service Center Directors). This guidance memorandum presented a series of questions and answers involving issues that may be faced by adjudicators, including the following:
Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under § 106(c) of AC21?
Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:
A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE [Request for Evidence] can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above. . . .
Question 11. When is an I-140 no longer valid for porting purposes? Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien's I-485 has been pending 180 days, or B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.
Id. at 3-7. Plaintiffs call the review process described in the answer to Question 1 a "Yates Review." See Compl. ¶ 39. This memorandum was later revised and reissued on ...