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Archana Pai v. United States Citizenship and

September 2, 2011

ARCHANA PAI,
PLAINTIFF,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,
DEFENDANT.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

MEMORANDUM OPINION

Before the Court is Defendant United States Citizenship and Immigration Services' ("USCIS") Motion to Dismiss (Docket No. 10). For the following reasons, USCIS' Motion is hereby GRANTED.

FACTUAL SUMMARY

Plaintiff Archana Pai ("Pai") is a citizen of India. Although her Complaint does not specify where she currently resides, it appears from the record that Pai currently lives in India. Plaintiff's Opp. to Mot. to Dismiss, at 2-3. Pai challenges the USCIS' denial of Delta Information Systems, Inc.'s ("Delta") I-140 Immigrant Petition for Alien Worker, in which Pai was the named beneficiary.

Pursuant to the Immigration and Nationality Act, there is a multi-step process for an alien to obtain entrance to and permanent residence in the United States based upon potential employment. First, the alien must have a prospective employer in the United States. That employer must name the prospective employee and seek the Secretary of Labor's certification (on a Form ETA-370) that: 1) there are not sufficient workers in the United States "who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States at the place where the alien is to perform such skilled or unskilled labor"; and 2) employing the alien worker "will not adversely affect the wages and working conditions of workers in the United States similarly employed." 8 U.S.C. § 1182(a)(5)(A)(i). If the Secretary makes such findings, she returns the labor certification to the employer. 20 C.F.R. § 656.24(d).

Once the position is certified, the employer may then file a Form I-140 (Immigrant Worker Visa Petition) with USCIS, naming the same employee/beneficiary and attaching the labor certification. 8 C.F.R. § 204.5(l)(3)(i). An immigrant visa cannot be issued without the Secretary's certification that the requirements of Section 1182 above are met. 8 U.S.C. § 1153(b)(3)(C). As one court has put it, an I-140 visa petition "constitutes a request to the INS that the alien named in the Labor Certification be classified as eligible to apply for designation within a specified visa preference employment category." United States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003).

If the USCIS grants the employer's I-140 petition, the alien is eligible to stand in line for an immigrant visa number to be issued by the Department of State. Id. Finally, once an alien*fn1

has obtained a visa number, the alien may file a Form I-485, applying to have his/her non-immigrant status adjusted to become a permanent resident entitled to live and work in the United States. 8 U.S.C. § 1255(a); 8 C.F.R. § 204.5(n)(1). Although the USCIS' granting of an employer's I-140 petition is a prerequisite to the alien's I-485 petition, it is not necessarily a guarantee that the I-485 petition will also be granted. Moreover, although an alien may file an I-485 in her own name and on her own behalf, the I-140 petition is solely the employer's petition. The I-140 petition must be filed and prosecuted by the employer, who is the only party with standing in the agency to challenge the decision with respect to that petition. See 8 C.F.R. § 103.3(a)(1)(iii)(B);*fn2 see also 8 C.F.R. §§ 103.2(b)(6) (petitioner has unilateral right to withdraw petition), (b)(8)(iii) (petitioner bears burden of responding to agency if it issues a Notice of Intent to Deny).

In this case, Delta filed a form ETA-370 with the Department of Labor on March 15, 2001, naming Gayatri Mantena as the purported employee (First Amend. Compl. ("FAC") ¶ 7). On August 25, 2001, the Secretary certified the position and returned the certification to Delta. (Compl. Ex. B at 10). It appears that Delta did nothing further on the application with regard to Ms. Mantena. On July 14, 2007, however, Delta filed an I-140 petition with USCIS seeking to substitute Pai for Mantena as the prospective employee and seeking to classify Pai as a professional or skilled worker under 8 U.S.C. § 1153(b)(3)(A)(i) (FAC ¶¶ 1, 6, 8).*fn3 After proceedings in the USCIS, the agency ultimately denied Delta's petition on January 28, 2010. (FAC ¶ 22). The USCIS determined that Delta failed to meet its burden to show it had the ability to pay Pai's proffered wage during the relevant time period.

Despite the fact that Pai's counsel represented Delta before the USCIS, Pai-not Delta- now challenges the USCIS' decision in this Court.*fn4 Pai challenges the agency's decision under the Administrative Procedures Act as arbitrary, capricious or otherwise not in accordance with law. She asks this Court to set aside the USCIS' decision and compel the agency to approve Delta's visa petition in her favor. Pai does not challenge the agency's denial of her I-485 petition.

ANALYSIS

A. Standard of Review

Despite the favorable inferences a plaintiff generally receives on a motion to dismiss, under Rule 12(b)(1), "it is to be presumed that a cause lies outside the federal court's limited jurisdiction unless the plaintiff establishes by a preponderance of the evidence that the Court possesses jurisdiction." Ramer v. United States, 620 F.Supp.2d 90, 95-6 (D.D.C. 2009) (internal citations and quotation marks omitted). Moreover, "[w]hile the complaint is to be construed liberally, the Court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiffs' legal conclusions." See Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006). "Plaintiffs' factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wightman-Cervantes v. Mueller, 750 F.Supp.2d 76, 78 (D.D.C. 2010) (internal quotation marks and citations omitted).

B.Analysis

1.Article III Standing

The government contends that Pai lacks standing to challenge the agency's decision and that Delta is the only proper party to do so. The parties have not cited any binding authority from this Circuit squarely on point, and this Court knows of none. Furthermore, two cases from this District on this issue have come to opposite conclusions.*fn5

Lack of standing is a defect in subject matter jurisdiction, and a plaintiff's standing under Article III must be first determined "in order to establish the jurisdiction of the Court to hear the case and reach the merits." George v. Napolitano, 693 F.Supp.2d 125, 128-29 (D.D.C. 2010) (internal citations omitted). Standing focuses on the party before the court and not on the issues the party seeks to adjudicate. Nat'l Fed'n of Fed. Emp. v. Cheney, 883 F.2d 1038, 1041 (D.C. Cir. 1989).

It is well-settled that the "irreducible constitutional minimum of standing" requires three elements: 1) Plaintiff must have suffered an injury in fact-an invasion of a legally protected interest-which is a) concrete and particularized; and b) actual or imminent, not conjectural or hypothetical; 2) there must be a causal connection between the injury and the conduct complained of; which injury has to be fairly traceable to the challenged action and not the result of the independent action of some third party not before the court; and 3) it must be likely (as opposed to merely speculative) that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Pai has failed to allege any injury in her First Amended Complaint, let alone an injury to a "legally protected interest" as required by Lujan. Id. Relying on a number of newly-cited cases, Pai argued for the first time at the hearing on the motion to dismiss that she had suffered two specific injuries cognizable under Article III: 1) being deprived the opportunity to immigrate to the United States; and 2) economic injury in the form of lost wages. ...


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