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Ramakrishna Vemuri v. Janet Napolitano

February 27, 2012

RAMAKRISHNA VEMURI, PLAINTIFF,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Ramakrishna Vemuri filed suit against Janet Napolitano as Secretary of the Department of Homeland Security, the United States Citizenship and Immigration Services ("USCIS"), and Eric Holder as Attorney General, alleging the USCIS wrongly denied his I-140 visa petition, I-485 application for adjustment of status, and I-765 applications for employment authorization. Defendants filed a [5] Motion to Dismiss Plaintiff's Complaint Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Defs.' Mot."). Defendants argue that Plaintiff's Complaint must be dismissed because Plaintiff lacks standing to challenge the denial of his I-140 visa petition, and because Defendants properly denied the visa petition and Plaintiff's related applications as a matter of law. The motion is now fully briefed.*fn1 For the reasons stated below, the Court finds Plaintiff lacks standing to challenge the denial of the I-140 visa petition and consequently lacks standing to challenge the denial of his I-485 and I-765 applications. Therefore, Defendants' motion to dismiss for lack of subject matter jurisdiction is GRANTED. Lacking jurisdiction, the Court does not reach Defendants'motion to dismiss for failure to state a claim.*fn2

I. BACKGROUND

A. Statutory Framework

The Immigration and Nationality Act ("INA") provides a three step process for non-citizens to obtain permanent employment in the United States in certain occupations. First, the employer must apply for a labor certification from the Department of Labor confirming that there are not sufficient workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien 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)(I)-(II). Once the certification is obtained, the employer must submit the certification along with an I-140 visa petition to the USCIS on behalf of the non-citizen worker, who is known as the "beneficiary" to the petition. 8 C.F.R. § 204.5(l)(1); see 8 U.S.C. § 1153(b)(3)(C). The employer must also submit documentation to show that the non-citizen worker meets any educational, training and experience, or other requirements dictated by the labor certification. 8 C.F.R. § 204.5(l)(3)(ii). The employer must also show that the it has the ability to pay the wage specified in the labor certification, from the date on which the request for the labor certification was submitted to the Department of Labor until the non-citizen worker obtains lawful permanent resident status. 8 C.F.R. § 204.5(g)(2).

Once the USCIS approves the I-140 petition, the non-citizen worker may apply to adjust his or her immigration status to that of a lawful permanent resident by filing an I-485 Application to Register Permanent Residence or Adjust Status. 8 U.S.C. § 1255(a). In some cases, the non-citizen worker can file the I-485 application at the same time the employer files the I-140 petition. See 8 C.F.R. § 245.2(a)(2)(i)(B). However, the USCIS cannot approve the I-485 application unless and until it approves the underlying I-140 visa petition. See 8 U.S.C. § 1255(a). While the I-485 application is pending, the non-citizen can also file an I-765 Application for Employment Authorization. 8 C.F.R. § 274a.12(c)(9) (noting a non-citizen is not an "unauthorized alien" under the INA for purposes of employment "while his or her properly filed Form I-485 application is pending final adjudication").

B. Factual Background

Real Technologies USA, Inc., ("Real Technologies"), applied for a labor certification on behalf of the Plaintiff, which the Department of Labor certified on August 18, 2003. Compl. ¶ 10; id. at Ex. 1 (Final Determination on Application for Employment Certification). Real Technologies filed an I-140 visa petition on behalf on Plaintiff in July 2007. Id. at ¶ 11; id. at Ex. 4 (Decision on I-140 Immigrant Petition for Alien Worker). In August 2007, Plaintiff submitted an I-485 application to adjust his immigration status. Id. at ¶ 11; id. at Ex. 5 (Decision on I-485 Application to Register Permanent Residence or Adjust Status). The USCIS denied the underlying I-140 petition on June 4, 2008, concluding that Real Technologies failed to show it had the ability to pay the wage required by the labor certification for the years 2003 and 2006. Id. at ¶ 14; id. at Ex. 4. On the same day, the USCIS denied Plaintiff's I-485 application on the basis that the I-140 petition was denied, and therefore Plaintiff was no longer the "beneficiary of a valid unexpired visa petition." Id. at ¶¶ 12, 15; id. at Ex. 5.

Real Technologies appealed the denial of its I-140 petition to the USCIS Adrministrative Appeals Office. Compl. ¶ 17; id. at Ex. 6 (Receipt of Notice of Appeal to the Commissioner). While the appeal was pending, Plaintiff filed an I-765 application for employment authorization as his employment authorization was set to expire in November 2008. Id. at ¶¶ 22-23; id. at Ex. 8 (11/17/2008 Receipt of Application for Employment). The USCIS denied Plaintiff's I-765 application in January 2009 on the grounds that Plaintiff's I-485 application was no longer pending as required to obtain employment authorization. Id. at ¶ 25; id. at Ex. 9 (Decision on I-765 Application for Employment Authorization). In April 2009, Plaintiff once again applied for employment authorization, which the USCIS denied on the same basis as Plaintiff's previous application. Id. at ¶¶ 26-27; id. at Ex. 10 (4/3/2009 Receipt of Application for Employment Authorization); id. at Ex. 11 (6/23/2009 Decision on I-765 Application for Employment Authorization).

The Administrative Appeals Office rejected Real Technologies' appeal. Id. at ¶ 28; id. at Ex. 12 (7/26/2010 Decision of the Administrative Appeals Office). The Officer upheld the initial finding that the company failed to prove it had the ability to or actually did pay Plaintiff the required wage during 2003 and 2006. Ex. 12 at 6-8. The Office further concluded that Real Technologies failed to show Plaintiff met the minimum qualifications outlined in the labor certification. Id. at 8-10. Real Technologies moved to reconsider the AAO's decision. Compl. ¶ 29; id. at Ex. 13. However, the USCIS dismissed the appeal as untimely. Id. at Ex. 13 (10/29/2010 Decision of the Administrative Appeals Office). Plaintiff filed suit challenging the denial of the I-140 petition, I-485 application, and both I-765 applications on April 27, 2011. Id., ECF No. [1].

II. LEGAL STANDARD

Defendant moves to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim, but the Court only reaches the former. "Federal courts are courts of limited jurisdiction" and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Id. at 377. In order to survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). "Although a court must accept as true all factual allegations contained in the ...


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