Khedkar v. U.S. Citizenship and Immigration Services ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PRAVIN KHEDKAR, :
:
Plaintiff, : Civil Action No.: 20-1510 (RC)
:
v. : Re Document Nos.: 15, 17
:
U.S. CITIZENSHIP AND :
IMMIGRATION SERVICES, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Courts ordinarily presume that Congress and government agencies act in concert to
construct and maintain a cohesive body of laws. See, e.g., Miles v. Apex Marine Corp., 498 U.S.
19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”);
Consumers Union of U.S., Inc. v. Kissinger, 506 F.2d 136, 145 (D.C. Cir. 1974) (Danaher, J.,
concurring) (“It is not to be doubted that importantly placed officials in our Executive
departments were fully aware of our tariff laws and regulations and of the legislative restrictions
upon Presidential action.”). But that is not always true. Sometimes, perhaps even for
understandable reasons, agencies do not update their regulations to keep up with statutory
changes. The conflict leaves ordinary people in a confusing predicament.
Plaintiff Pravin Khedkar found himself in just such a situation. After immigrating to the
United States, he took advantage of a statute that allowed him to leave the employer that
sponsored his visa and work elsewhere. Yet regulations that predated the statute required the
federal government to continue to send immigration correspondence to Khedkar’s original
employer. When the original employer did not respond to a request for evidence, the
government denied a petition that would have made Khekdar eligible for permanent residency.
Khedkar claims the government acted improperly.
The Court agrees. Following the regulations was incompatible with the statutory scheme
that allowed Khedkar to change employers, so the government’s petition denial must be set
aside. The government should have treated Khedkar as a party to the petition adjudication
proceedings and sent him any related correspondence.
II. BACKGROUND
A. Legal Framework
Noncitizens cannot work in the United States without authorization from U.S. Citizenship
and Immigration Services (“USCIS”). The Immigration and Nationality Act (“INA”) gives
preference in obtaining permanent work authorization to, among others, immigrants employed as
managers or executives at multinational businesses. See 8 U.S.C. § 1153(b)(1)(C). For an
immigrant manager or executive to receive that preferential treatment, his employer must submit
to USCIS an I-140 Petition for Alien Worker demonstrating that he qualifies for it. See id.
§ 1154(a)(1)(F); 8 C.F.R. § 204.5(j). The immigrant is called the petition’s “beneficiary.” See 8
C.F.R. § 204.5(a).
An immigrant who is the beneficiary of an approved I-140 petition can apply to become a
lawful permanent resident. See 8 U.S.C. § 1255(a). He makes that request by filing an I-485
Application to Register Permanent Residence or Adjust Status. See 8 C.F.R. § 245.2(a)(3)(ii);
see also Vemuri v. Napolitano, 845 F. Supp. 2d 125, 127 (D.D.C. 2012). Even though an
approved I-140 petition is required to obtain permanent residency through the I-485 process, an
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immigrant can sometimes file his I-485 application at the same time his employer files the I-140
petition. See 8 C.F.R. § 245.2(a)(2)(i).
To give immigrants flexibility to change jobs when there are delays in processing I-485
applications, Congress enacted what is called the “portability provision.” See Ravulapalli v.
Napolitano, 773 F. Supp. 2d 41, 45 (D.D.C. 2011). The portability provision states that an I-140
petition “shall remain valid” to support an immigrant’s I-485 application for permanent
residency even when the immigrant changes jobs if (1) the immigrant’s I-485 application has
been pending for 180 days or more and (2) the new job is “in the same or a similar occupational
classification” as the one for which the immigrant’s original employer filed the petition. 8
U.S.C. § 1154(j). It is meant to allow an immigrant to move—or “port”—to a new employer
without fear that USCIS will deny his I-485 application based on the lack of an approved I-140
petition from the new employer. See Ravulapalli, 773 F. Supp. 2d at 45.
B. Background of the Case
Khedkar came to the United States to work as a manager at Deloitte Consulting LLP.
J.A. 129–30, 333. The next year, Deloitte filed an I-140 petition so Khedkar could work in the
United States permanently. See Defs.’ Statement Material Facts Not in Genuine Dispute (“Defs.’
SMF”) ¶ 1, ECF No. 16-2; see also J.A. 332–36, 660. The petition asserted that Khedkar was
entitled to preference because he was a multinational executive or manager. JA. 332, 660.
Khedkar filed an I-485 application at the same time. J.A. 24, 236–53.
Nine months later, Khedkar informed USCIS that he was going to start a job with Alpha
Net Consulting LLC. J.A. 653–59. He invoked the portability provision to retain the I-140
petition Deloitte filed on his behalf as the basis for his I-485 application. J.A. 653. The petition
was still pending. Defs.’ SMF ¶ 4.
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A week after that, USCIS sent a request for evidence to Deloitte. J.A. 208–17. The
request stated that Deloitte’s I-140 petition needed more details about the duties Khedkar would
perform to justify classifying him as an executive or manager. J.A. 209. Those details included
“[a]n explanation of the specific daily tasks that are involved with the completion of each of the
beneficiary’s proposed duties.” Id. (emphasis omitted). The request also demanded more
information from Deloitte to establish that Khedkar had performed executive or managerial
duties for at least one year in the three-year period prior to the petition’s filing—a statutory
requirement. J.A. 210–11; see also 8 U.S.C. § 1153(b)(1)(C).
Two-and-a-half months later, Khedkar notified USCIS that he was changing jobs once
more. J.A. 671–77. He had accepted a position with IBM Corporation. J.A. 673. Khedkar
again invoked the portability provision so that he could continue to rest his I-485 application on
Deloitte’s I-140 petition. J.A. 671.
The following month, USCIS denied the I-140 petition. J.A. 200. Its decision letter
explained that Deloitte never responded to its request for evidence. J.A. 202. Khedkar protested
by filing a motion to reopen the decision. J.A. 111–16. USCIS dismissed his motion. J.A. 35–
36, 107–10. It said that regulations prevented an I-140 petition beneficiary like Khedkar from
challenging agency decisions regarding the petition. J.A. 109. Khedkar appealed, J.A. 2–21, but
USCIS summarily denied his appeal on the same grounds as his motion to reopen, J.A. 1.
Khedkar then brought this suit against USCIS. See Compl., ECF No. 1. 1 He asserts three
claims under the Administrative Procedure Act. First, Khedkar alleges that USCIS unlawfully
denied the I-140 petition by following regulations that excluded him from the adjudicative and
1
Khedkar’s complaint also names two USCIS officers as defendants. See Compl. ¶¶ 21–
22. Because Khedkar sues the officers in their official capacities, this opinion will refer to the
defendants collectively as “USCIS.”
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appeal processes. Id. ¶¶ 74–92. Second, Khedkar asserts that USCIS improperly delayed
processing the notices he sent the agency to notify it of his job moves. Id. ¶¶ 93–109. Third,
Khedkar alleges that USCIS violated his procedural due process rights. Id. ¶¶ 111–15. Khedkar
bases his first two claims in the INA, USCIS regulations, and agency precedent decisions. Id.
¶¶ 92, 109. He grounds his third claim in the Fifth Amendment. Id. ¶¶ 111–15.
Before the Court now are cross-motions for summary judgment on all Khedkar’s claims.
See Mem. P & A Supp. Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 15-1; Mem. P & A Opp’n
Pl.’s Mot. and Supp. Defs.’ Cross-Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 17-1; see also Pl.’s
Reply Defs.’ Opp’n Pl.’s Mot. Summ. J. and Mem. Opp’n Defs.’ Cross-Mot. Summ. J. (“Pl.’s
Reply”), ECF No. 18; Reply Supp. Defs.’ Cross-Mot. Summ. J. (“Defs.’ Reply”), ECF No. 20.
III. LEGAL STANDARD
A court’s evaluation of a summary judgment motion looks different than usual when it
reviews an agency action under the Administrative Procedure Act (“APA”). See Rempfer v.
Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009). In an APA suit, the court’s review is largely
limited to the contents of the administrative record. See id.; see also CTS Corp. v. EPA, 759 F.3d
52, 64 (D.C. Cir. 2014). The court thus “sits as an appellate tribunal” to determine whether, as a
matter of law, the record supports the agency’s decision. See Am. Bioscience, Inc. v. Thompson,
269 F.3d 1077, 1083–84 (D.C. Cir. 2001); see also Roberts v. United States, 883 F. Supp. 2d 56,
62 (D.D.C. 2012), aff’d, 741 F.3d 152 (D.C. Cir. 2014). Summary judgment simply “serves as
the mechanism” for deciding that question. Citizens for Resp. & Ethics in Wash. v. U.S. SEC,
916 F. Supp. 2d 141, 145 (D.D.C. 2013).
The APA requires a court to set aside agency action that is “arbitrary, capricious, an
abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Judicial
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review for arbitrariness is “narrow.” Judulang v. Holder, 565 U.S. 42, 52–53 (2011) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An
agency action is “arbitrary and capricious if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important aspect of the problem, or
offered an explanation for its decision that runs counter to the evidence before the agency.”
Animal Legal Def. Fund, Inc. v. Perdue, 872 F.3d 602, 611 (D.C. Cir. 2017) (brackets omitted)
(quoting State Farm, 463 U.S. at 43). By the same token, a “court will ordinarily uphold an
agency’s decision so long as the agency ‘examined the relevant data and articulated a satisfactory
explanation for its action, including a rational connection between the facts found and the choice
made.’” Id. (brackets omitted) (quoting State Farm, 463 U.S. at 43). Ultimately, however, an
agency policy or “regulation which . . . operates to create a rule out of harmony with the statute[]
is a mere nullity.” See Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S.
129, 134 (1936); see also Orion Rsrvs. Ltd. P’ship v. Salazar, 553 F.3d 697, 703 (D.C. Cir.
2009) (“[A] regulation contrary to a statute is void.”).
IV. ANALYSIS
Khedkar brings three attacks against USCIS. He alleges: (1) that USCIS improperly
denied the I-140 petition by refusing to send him the request for evidence and let him appeal the
denial; (2) that USCIS unlawfully delayed processing the notices that he sent the agency
regarding his job moves; and (3) that USCIS’s actions violated his constitutional due process
rights. The first claim has merit. Khedkar has forfeited the second and third ones because he
failed to brief them in a timely and well-supported manner.
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A. Khedkar’s Improper Adjudication Claim
Khedkar’s first claim is that USCIS acted unlawfully by sending Deloitte the request for
evidence and then denying the I-140 petition when it received no response. Compl. ¶¶ 78–86;
see generally Pl.’s Mot. at 18–28. He also faults the agency for rejecting his attempts to appeal
the denial. Compl. ¶¶ 87–88; see also Pl.’s Mot. at 22–23, 26.
As it turns out, USCIS’s failure to provide Khedkar the request for evidence and its
refusal to entertain his appeal both stem from regulations that do not recognize I-140 petition
beneficiaries as parties to I-140 petition proceedings. The regulation governing how USCIS
should adjudicate benefit requests like I-140 petitions says straightforwardly: “A beneficiary of a
petition is not a recognized party in [a benefit request] proceeding.” 8 C.F.R. § 103.2(a)(3).
Beneficiaries thus “do not receive notice relating to the [petition’s] adjudication.” Matter of V-S-
G- Inc., Adopted Decision 2017-06, 2017 WL 5625783, at *4 (AAO Nov. 11, 2017). Similarly,
the regulation on administrative appeals within the agency provides that only an “affected party”
can appeal the denial of an application or petition. See 8 C.F.R. § 103.3(a)(2)(i). It then defines
“affected party” as “the person or entity with legal standing in a proceeding” and specifically
excludes from that definition “the beneficiary of a visa petition.” Id. § 103.3(a)(1)(iii)(B).
Khedkar asserts that USCIS should have treated him as a party to the I-140 petition
adjudication who was entitled to receive the agency’s request for evidence and to appeal the
petition’s denial. See generally Pl.’s Mot. at 18–28. The agency focuses on the substance of the
petition. It argues that the petition lacked sufficient evidence when filed to show that Khedkar
was an executive or manager and thus deserved to be denied. See Defs.’ Mot. at 9–12; Defs.’
Reply at 2–7. Because Khedkar raises the antecedent concern, the Court will address his
argument first—after all, if Khedkar was entitled to receive the request for evidence, then
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USCIS’s adjudication of the petition was premature. And because the Court agrees with
Khedkar, it will stop its analysis there. USCIS must give him an opportunity to respond to its
request for evidence and then reevaluate its denial.
Before getting to the merits of Khedkar’s claim, however, the Court must address some
questions around standing.
1. Constitutional Standing and Khedkar’s Right to Sue
USCIS confusingly describes regulations denying that an I-140 petition beneficiary is a
party to a petition adjudication proceeding as characterizing the beneficiary’s “standing.” See,
e.g., 8 C.F.R. § 103.3(a)(1)(iii)(B) (explaining that an “affected party” for administrative appeals
purposes is “the person or entity with legal standing in a proceeding” (emphasis added)); Matter
of V-S-G- Inc., 2017 WL 5625783, at *8 (describing regulations as delineating a beneficiary’s
“administrative standing”). This label has misled courts. Some have interpreted the regulations
as not only prohibiting I-140 beneficiaries from filing internal agency appeals, but also (for less-
than-clear reasons) shutting beneficiaries out of the courthouse. See, e.g., Ibraimi v. Chertoff,
No. 07-cv-3644, 2008 WL 3821678, at *3 (D.N.J. Aug. 12, 2008); Blacher v. Ridge, 436 F.
Supp. 2d 602, 606 n.3 (S.D.N.Y. 2006); see also George v. Napolitano, 693 F. Supp. 2d 125, 130
(D.D.C. 2010) (citing Ibraimi and Blacher when concluding that a beneficiary “lack[ed] standing
to challenge any action by USCIS regarding [his] I-140 Petition”). Whatever effect USCIS
regulations have on an I-140 beneficiary’s ability to navigate agency proceedings, they do not
affect the beneficiary’s access to federal court. See Mantena v. Johnson, 809 F.3d 721, 732 (2d
Cir. 2015) (“[T]he fact that [an I-140 beneficiary] may not have satisfied USCIS’s definition of
‘legal standing’ before the agency does not mean she does not have standing to bring this lawsuit
in federal court.”); Kurapati v. U.S. Bureau of Citizenship & Immigr. Servs., 775 F.3d 1255,
8
1260 (11th Cir. 2014) (“[T]he regulatory definition of ‘affected party’ does not preclude the
beneficiary from having standing in the district court, as it relates to who has the ability to
challenge the administrative denial of a petition.”); see also De Jesus Ramirez v. Reich, 156 F.3d
1273, 1276 (D.C. Cir. 1998) (“[U]nder the Administrative Procedure Act, it is only statutes, not
agency regulations, that can preclude otherwise available judicial review.”).
As far as constitutional standing is concerned, what matters is that the plaintiff show:
(1) that he has suffered an injury in fact; (2) that the injury is fairly traceable to the defendant’s
challenged conduct; and (3) that a favorable decision would likely redress the injury. Friends of
the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). Khedkar did
that. By Khedkar’s account, USCIS erroneously failed to send him the request for evidence and
then denied the I-140 petition filed on his behalf because no one provided the information that it
asked for. The agency’s misaddressing of the request “foreclosed any opportunity for [Khedkar]
to be notified and to provide evidence to USCIS” in support of the petition. See Mantena, 809
F.3d at 731. He now lacks the chance at securing permanent residency as a result. And even if
USCIS might ultimately deny the petition (or his application for permanent residency) anyway,
“lost opportunity is itself a concrete injury—and a favorable decision would redress it.” See id.
(quoting Patel v. U.S. Citizenship & Immigr. Servs., 732 F.3d 633, 638 (6th Cir. 2013)); see also
Shalom Pentecostal Church v. Acting Sec’y U.S. Dep’t of Homeland Sec., 783 F.3d 156, 161–62
(3d Cir. 2015); Patel, 732 F.3d at 638.
Constitutional access to the judiciary aside, other courts have determined that I-140
beneficiaries lack “prudential standing” to challenge denials of petitions filed on their behalf.
They say that beneficiaries fall outside the zone of interests that the INA’s scheme for awarding
employment-based visas protects. See, e.g., Pai v. U.S. Citizenship & Immigr. Servs., 810 F.
9
Supp. 2d 102, 108–12 (D.D.C. 2011); Vemuri, 845 F. Supp. 2d at 130–34. Those courts point to
two statutory limitations—and the legislative history behind them—as defining the relevant zone
of interests. See Pai, 810 F. Supp. 2d at 110–11; Vemuri, 845 F. Supp. 2d at 131–32. One
statutory limitation caps the number of employment-based visas available each year and allocates
them among the different kinds of immigrants who qualify for such visas. See 8 U.S.C.
§§ 1151(d), 1153(b). The other requires certain I-140 petitioners (not those seeking visas for
multinational executives and managers like Khedkar) to obtain a certification from the Secretary
of Labor that hiring a noncitizen will not adversely affect the American workforce. See id.
§§ 1153(b)(3)(C), 1182(a)(5)(A). Reasoning that the limitations reflect a congressional intent to
protect American workers’ interests over foreign workers’ interests, these courts have concluded
that suits by beneficiaries challenging I-140 petition denials have no place in federal court. See
Pai, 810 F. Supp. 2d at 110–11; Vemuri, 845 F. Supp. 2d at 131–32.
This Court disagrees. Despite older cases referring to the zone of interests test as
providing the standard for “prudential standing,” the Supreme Court has clarified that the test is
better understood as defining the scope of a statutory provision’s cause of action. See Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126–27 (2014). A plaintiff can bring
suit if the interest he asserts is “‘arguably within the zone of interests to be protected or regulated
by the statute’ that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Orgs.,
Inc. v. Camp, 397 U.S. 150, 153 (1970)). And when it comes to an APA suit alleging that an
agency violated a statute, “the test is not especially demanding.” Lexmark, 572 U.S. at 130
(internal quotation marks omitted) (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians, 567 U.S. at 225). It “forecloses suit only when a plaintiff’s interests are so marginally
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related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be
assumed that Congress authorized that plaintiff to sue.” Id. (internal quotation marks omitted)
(quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, 567 U.S. at 225).
Khedkar clears that low bar. The INA grants visas not to the multinational employers
who file I-140 petitions on behalf of their executives and managers but to the beneficiaries
themselves. See 8 U.S.C. § 1153(b)(1) (providing that “[v]isas shall . . . be made available . . . to
qualified immigrants,” including multinational executives and managers). Indeed, an approved
I-140 petition makes the beneficiary eligible for a permanent visa, not merely a temporary one
that expires when the employer no longer needs the beneficiary’s services. See id. § 1255(a).
And as if those two provisions do not already encompass Khedkar’s suit, the portability
provision he invoked leaves no doubt. Congress passed the portability provision to give I-140
beneficiaries the flexibility to change jobs without risking their shot at permanent residency. See
id. § 1154(j) (listing the provision’s title as “Job flexibility for long delayed applicants for
adjustment of status to permanent residence”); Matter of V-S-G- Inc., 2017 WL 5625783, at *3
(explaining that the provision addressed the problem of beneficiaries getting stuck working for
the employers who submitted I-140 petitions on their behalf until they could secure permanent
residency). Even USCIS recognizes that a beneficiary who “is eligible to and has properly
requested to port” falls within the portability provision’s zone of interests. See Matter of V-S-G-
Inc., 2017 WL 5625783, at *9. So contrary to some courts suggesting otherwise, there is “no
basis in the text of the [INA]—none—to conclude that Congress was completely indifferent to
the interests of the ‘qualified immigrants’ themselves.” Patel, 732 F.3d at 636 (emphatically
rejecting the argument that only U.S. employers and workers fall within the statute’s zone of
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interests). 2 The INA thus authorizes Khedkar’s attempt to ensure that USCIS properly
adjudicates the I-140 petition filed on his behalf. See id. (holding that the INA permitted the
would-be beneficiary of an I-140 petition to challenge the petition’s denial); cf. Shalom
Pentecostal Church, 783 F.3d at 164 (“The text of the INA leaves no doubt that the interests of
employment-based visa petition applicants . . . are directly related to the purposes of the INA.”). 3
2. Treating I-140 Petition Beneficiaries as Parties in Petition Adjudication Proceedings
The Court now turns to the merits of Khedkar’s claim: Did USCIS act improperly by not
treating him as a party to the I-140 petition adjudication and, consequently, not sending him the
2
Notably, the Pai and Vemuri cases predated two recent decisions in which the Supreme
Court emphasized that the zone of interest test was both not jurisdictional and undemanding. See
Lexmark, 572 U.S. at 127, 130; Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, 567
U.S. at 225. USCIS even cited one of those decisions as a reason for revisiting its position that I-
140 petition beneficiaries not be treated as parties to petition adjudication proceedings. See
Mantena, 809 F.3d at 722 (quoting USCIS “Request for Amicus Brief . . . seek[ing] briefing, ‘in
light of Lexmark,’ ‘on whether the beneficiaries of certain immigrant visa petitions have standing
to participate in the administrative adjudication process, including standing to appeal’”).
3
A related question often litigated in immigration cases—but not mentioned by either
party here—is whether the INA strips a court of jurisdiction to hear them. The question arises
out of a provision barring courts from reviewing decisions in USCIS’s discretion. See 8 U.S.C.
§ 1252(a)(2)(B)(ii); see also iTech U.S., Inc. v. Renaud, --- F.4th ----, 2021 WL 3043302, at *7–8
(D.C. Cir. July 20, 2021) (holding that the decision to revoke an approved I-140 petition is a
discretionary one that courts cannot review). That provision does not apply in this case. The
decision to grant or deny an I-140 petition is not a discretionary one. See 8 U.S.C. § 1154(b)
(“[T]he Attorney General shall, if he determines that the facts stated in the petition are true and
that the alien in behalf of whom the petition is made . . . is eligible for preference under [8 U.S.C.
§ 1153(b)], approve the petition . . . .” (emphasis added)); see also Las Americas Immigrant
Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 11 n.4 (D.D.C. 2020) (explaining that “Congress
primarily transferred the INA enforcement functions” from the Attorney General to the Secretary
of Homeland Security, USCIS’s parent agency); cf. Etbeleh v. Chertoff, No. Civ. A. H-06-0023,
2006 WL 2331052, at *3 (S.D. Tex. Aug. 8, 2006) (distinguishing between the nondiscretionary
decision to approve an I-130 petition under section 1154(b) and the discretionary decision to
revoke such a petition). Besides, Khedkar’s claims focus on the procedure USCIS used in
adjudicating his petition, not the substantive decisions the jurisdiction-stripping provision is
concerned with. See Mantena, 809 F.3d at 728–30; Musunuru, 831 F.3d at 887–88.
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request for evidence or letting him appeal? To answer that question, fully understanding
USCIS’s regulatory framework is key.
An I-140 petition for a multinational executive or manager must include a statement from
the petitioning employer demonstrating that the beneficiary has worked for the employer in a
managerial or executive capacity for at least one of the preceding three years and will continue to
do so in the United States. 8 C.F.R. § 204.5(j)(3)(i), (5); see also 8 U.S.C. § 1153(b)(1)(C). If
the statement does not contain enough information to make that showing, USCIS has two
options. It can either deny the petition “for lack of initial evidence” or “request that the missing
initial evidence be submitted.” 8 C.F.R. §103.2(b)(8)(ii). If it chooses the latter option, a
regulation provides that requests for evidence “will be communicated by regular or electronic
mail and will specify the type of evidence required . . . sufficient to give the applicant or
petitioner adequate notice and sufficient information to respond.” Id. § 103.2(b)(8)(iv). Because
USCIS regulations do not recognize I-140 beneficiaries as parties to petition proceedings, id.
§ 103.2(a)(3), the agency sends requests for evidence only to the petitioning employer. See
Matter of V-S-G- Inc., 2017 WL 5625783, at *4; see also 8 C.F.R. § 103.3(a)(1)(iii)(B), (a)(2)(i)
(permitting only an “affected party,” which is defined to exclude “the beneficiary of a visa
petition,” to file administrative appeals); id. § 103.8(a)(1)(i) (explaining that “routine service” of
“notices, decisions, and other papers . . . in administrative proceedings” entails “mailing the
notice . . . to the affected party”).
The portability provision complicates this process. Recall that the provision allows an
immigrant whose I-485 application for permanent residency has been pending for at least 180
days to change to a similar job without losing the I-140 petition that forms the basis of his
application. 8 U.S.C. § 1154(j). The immigrant requesting to port to a new job must file a Form
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I-485 Supplement J, which provides USCIS with information about the new job so the agency
can determine if it is similar to the old one. See 8 C.F.R. § 245.25(a); see also Dep’t of
Homeland Sec., U.S. Citizenship and Immigr. Servs., Instructions for Supplement J,
Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)
(“Supplement J Instructions”) 1 (2021); 8 C.F.R. § 103.2(a)(1) (explaining that the instructions
for “[e]very form, benefit request, or other document” are “incorporated into the regulations
requiring its submission”). Because the portability provision “preserves the validity of only
those I-140 petitions that have been approved,” USCIS cannot approve the request unless the
immigrant is the beneficiary of an approved I-140 petition. Ravulapalli, 773 F. Supp. 2d at 53;
see also Matter of Al Wazzan, 25 I. & N. Dec. 359, 367 (AAO 2010).
But an immigrant can request to port even if USCIS has not yet adjudicated the I-140
petition underlying his I-485 application. See 8 C.F.R. § 245.25(a)(2)(ii)(B); Supplement J
Instructions 2. The agency will simply resolve the I-140 petition before addressing the related
portability request. Supplement J Instructions 2; Retention of EB-1, EB-2, and EB-3 Immigrant
Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers
(“Employment-Based Immigrant Rule”), 81 Fed. Reg. 82,398, 82,418 (2016) (“In the final rule
at 8 CFR 245.25(a)(2)(ii)(A) and (B), DHS reaffirms that a qualifying immigrant visa petition
has to be approved before DHS examines a portability request under INA 204(j) and determines
an individual’s eligibility or continued eligibility to adjust status based on the underlying visa
petition.”). Of course, just because an immigrant’s I-485 application has been pending for more
than 180 days does not automatically render the underlying I-140 petition valid. See Matter of Al
Wazzan, 25 I. & N. Dec. at 364–67.
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Instead, USCIS will approve the I-140 petition “if it was eligible for approval at the time
of filing and until the alien’s adjustment of status application has been pending for 180 days.” 8
C.F.R. § 245.25(a)(2)(ii)(B)(2). That regulatory wording means that the agency “will review the
pending petition to determine whether . . . the petition is approvable or would have been
approvable had it been adjudicated before the associated application for adjustment of status has
been pending for 180 days or more.” Employment-Based Immigrant Rule, 81 Fed. Reg. at
82,420. Its purpose is to allow USCIS to approve a petition if something happens after an I-485
application has been pending for at least 180 days that would ordinarily make the petition
invalid—for instance, the petitioning employer withdrawing the petition or going out of business.
Id. at 82,420–21. The wording does not mean that the agency cannot request additional evidence
to adjudicate the petition, as it did in this case. See id. at 82,421 (remarking that the review
process for I-140 petitions that were pending when a beneficiary requests to port “does not
prevent [the agency] from requiring a response from the Form I-140 petitioner and taking
appropriate action on a request for evidence”); see also Defs.’ Reply at 6 (acknowledging that
the petition’s evidentiary deficiencies “may have been curable if Deloitte . . . had responded to
the [request for evidence]”). 4
4
The rule setting out USCIS’s review of I-140 petitions that are pending when an
immigrant requests to port to a new employer codified existing “policy and practice.” See
Employment-Based Immigrant Rule, 81 Fed. Reg. at 82,420 & n.31. A 2005 agency memo
detailing that policy and practice in question-and-answer format explained:
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 . . . ?
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:
15
The parties focus their arguments for summary judgment on two different parts of that
regulatory process. USCIS concentrates on the ultimate question of whether it was justified in
denying the I-140 petition that named Khedkar as a beneficiary. Naturally, it says it was. The
agency points out that regulations require it to approve an I-140 petition that is pending when the
beneficiary requests to port only “if [the petition] was eligible for approval at the time of filing.”
8 C.F.R. § 245.25(a)(2)(ii)(B)(2). According to USCIS, the petition did not establish—at the
time of filing—that Khedkar was and would continue to be a manager or executive for Deloitte.
Defs.’ Mot. at 10–12; Defs.’ Reply at 6–7. That is why it sent the request for evidence. See
Defs.’ Mot. at 11–12; Defs.’ Reply at 6. As a result, the agency asserts, denying the petition was
appropriate. Defs.’ Mot. at 11–12; Defs.’ Reply at 6.
Khedkar belatedly debates that point in his reply brief, see Pl.’s Reply at 13–18, but the
real thrust of his argument goes to an antecedent question. See Walker v. Pharm. Rsch. & Mfrs.
of Am., 461 F. Supp. 2d 52, 58 n.9 (D.D.C. 2006) (explaining that a plaintiff forfeits arguments
raised for the first time in her reply brief). Namely, Khedkar maintains that USCIS should have
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 a request for additional evidence (RFE) is necessary to resolve a
material issue, other than post-filing issues such as ability to pay, an RFE
can be issued to try to resolve the issue. When a response is received, and
if the petition is approvable, follow the procedures in part A above.
Defs.’ Reply, Ex. C at 3, ECF No. 20-3 (revising an earlier policy found at Defs.’ Reply, Ex. B,
ECF No. 20-2); see also Defs.’ Reply at 2 n.3 (acknowledging that the policy remains operative
and is “being incorporated into USCIS’s Policy Manual”).
16
sent him—not Deloitte—the request for evidence. See Pl.’s Mot. at 18–28; Pl.’s Reply at 8–13.
In view of the portability provision’s aim to promote job flexibility for employment-based
immigrants, he says, it made no sense for the agency to send the request to the employer he was
leaving. See Pl.’s Mot. at 23–28. Yet the regulations refusing to recognize I-140 petition
beneficiaries as parties in USCIS proceedings prevented him from receiving the request (and
later prevented him from appealing the decision). 5 Those regulations therefore conflict with the
portability provision, Khedkar argues, and should not apply to beneficiaries who request to port
to a new employer. See id.If Khedkar is right, then he will have an opportunity to submit supplemental evidence to
USCIS and the agency will have to reassess his I-140 petition. The Court thus begins its analysis
with his argument. It is important to note at the outset, however, that the Court will not evaluate
whether (as Khedkar suggests) USCIS must always send requests for evidence to I-140
beneficiaries who have requested to port. See Pl.’s Reply at 17–18. Regulations do not require
the agency to send a request for evidence whenever a petition lacks sufficient evidence; it also
has the option to deny such deficient petitions outright. See 8 C.F.R. § 103.2(b)(8)(ii); see also
Calle v. Whitaker, No. 18-cv-1957, 2019 WL 447324, at *13 (E.D.N.Y. Jan. 31, 2019). 6 On the
5
At one point, Khedkar claims that USCIS inadequately justified its decisions to deny his
appeal and motion to reopen. See Pl.’s Mot. at 22–23. But the agency explained in each instance
that Khedkar was not an “affected party” allowed to appeal. See J.A. 1, 35–36, 107–10. It
provided enough reasoning to “discern[]” its decisionmaking “path.” See Pub. Citizen, Inc. v.
FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (citation omitted).
6
Khedkar’s contrary view rests on a regulation that requires USCIS to notify a petitioner
or applicant when the agency will make an adverse decision “based on derogatory
information . . . of which the applicant or petitioner is unaware.” See 8 C.F.R. § 103.2(b)(16)(i);
see also Pl.’s Reply at 17–18. But there was no hidden information that doomed the I-140
petition at issue here. Contrast Zemeka v. Holder, 989 F. Supp. 2d 122, 130 (D.D.C. 2013)
(explaining that USCIS, when adjudicating petitions for permanent residency based on marriage,
must notify petitioners if it discovers evidence of marriage fraud and give them an opportunity to
17
request for evidence issue, the Court will decide solely to whom USCIS should send such a
request after receiving notice that a beneficiary wants to port assuming the agency decides to
send one. 7 It will also decide whether the agency, if notified that a beneficiary would like to
port, can properly allow only the petitioner to appeal an unfavorable decision.
The question of how an I-140 beneficiary’s decision to port affects whom USCIS should
consider to be a party in petition adjudication proceedings is a matter of first impression. But the
Court is not writing on a completely blank slate. Two courts of appeals recently addressed a
similar question in the context of I-140 petition revocations. Both cases considered USCIS’s
notice obligations when the agency sought to revoke already-approved I-140 petitions after the
beneficiaries of those petitions had ported to new employers. See Mantena, 809 F.3d at 733–36;
Musunuru v. Lynch, 831 F.3d 880, 888–91 (7th Cir. 2016). On the face of applicable
regulations, USCIS was required to provide notice of the revocation only “to the petitioner or
self-petitioner,” not the petition beneficiary. 8 C.F.R. § 205.2(b). 8 And as in this case, USCIS’s
administrative appeal bar prevented the I-140 beneficiaries from seeking agency review or
rebut that evidence). USCIS says the evidence accompanying the petition at the time of filing
simply did not establish that Khedkar was a manager or executive with Deloitte. J.A. 202.
7
Even though the agency could have rejected the I-140 petition to begin with, it was not
free to do whatever it wanted to the petition after it chose to send a request for evidence. USCIS
regulations promise that requests for evidence will “give the applicant or petitioner adequate
notice and sufficient information to respond” along with a “deadline for response.” 8 C.F.R.
§ 103.2(b)(8)(iv). Those promises would be empty ones indeed if a petition’s initial deficiencies
allowed the agency to get away with improperly handling a request for evidence or the response.
8
Because both cases involved USCIS revoking I-140 petitions after discovering that
(coincidentally) the same petitioning employer had committed fraud, Mantena, 809 F.3d at 726;
Musunuru, 831 F.3d at 885, the agency had a separate but similar obligation to notify “the
applicant or petitioner” of the “derogatory information” it had considered in making its decision,
see 8 C.F.R. § 103.2(b)(16)(i). As explained above, that regulation does not apply here. See
supra note 6. This difference between Khedkar’s case and the revocation cases is not a
meaningful one. In each scenario, regulations required USCIS to provide a notice or request to
the “applicant or petitioner” but not the petition beneficiary.
18
reconsideration. See Mantena, 809 F.3d at 727; Musunuru, 831 F.3d at 890–91. Undeterred, the
beneficiaries asserted that, because they had ported to new employers, they or their new
employers were entitled to the notice that regulations promised only to their original, petitioning
employers. See Mantena, 809 F.3d at 733; Musunuru, 831 F.3d at 889.
The Second and Seventh Circuits agreed with the beneficiaries, both courts drawing on
the change the portability provision wrought in the relationship between petitioning employers
and beneficiary employees. Before the portability provision came along, an I-140 beneficiary
was stuck with his petitioning employer for as long as he wanted to rely on the employer’s
petition during the I-485 application process for permanent residency. See Mantena, 809 F.3d at
733. Due to the limited number of available permanent residency visas, he could be trapped for
years. See id.; see also Matter of V-S-G- Inc., 2017 WL 5625783, at *2. Still, the beneficiary’s
forced relationship with his petitioning employer “also meant that notice to the original employer
would adequately serve to inform the alien employee.” See Mantena, 809 F.3d at 733–34.
Congress enacted the portability provision to sever that forced relationship, the courts
explained. The provision thus provided job flexibility that would benefit employees and
employers alike. Immigrant employees could leave their jobs without jeopardizing a chance at
permanent residency. See id. (explaining that the portability provision promoted immigrant job
flexibility as highlighted in the provision’s title, “Job flexibility for long delayed applicants for
adjustment of status to permanent residence”); Musunuru, 831 F.3d at 889 (agreeing with the
immigrant plaintiff that he had “a vested interest” in his original employer’s petition). And
employers could more easily hire talented foreign workers by relying on a prior employer’s
immigration filings instead of starting the whole process over from scratch. See Mantena, 809
F.3d at 734 (“By virtue of the portability provisions, employers who hoped to attract foreign
19
national employees by sponsoring them to become permanent residents based on a permanent
job offer could avoid bureaucratic delay.”); Musunuru, 831 F.3d at 889 (explaining that the
beneficiary’s new employer “had a vested interest in the petition’s validity” because it
“depended on” that original petition to employ the beneficiary).
But by severing the relationship between petitioning employers and beneficiaries, the
courts reasoned, the portability provision made it so that the immigrant “employees and the
successor employers who take advantage of earlier filings by other employers are frequently the
only parties with any interests in the originally filed . . . I-140 petitions.” See Mantena, 809 F.3d
at 734; see also Musunuru, 831 F.3d at 889. On the other hand, a petitioning employer is certain
to have a diminished interest in the outcome of an I-140 petition that benefited someone who no
longer works for it. See Mantena, 809 F.3d at 734. Yet USCIS regulations—which predate the
portability provision—continue to treat the indifferent prior employer as the only party to
revocation proceedings and the only one entitled to notice. See Mantena, 809 F.3d at 734–35;
Musunuru, 831 F.3d at 889–91. So as written, the outmoded regulations “plac[e] beneficiaries
and successor employers in a position of either blind faith in the original petitioner’s goodwill
and due diligence or a forced and continued relationship with the now-disinterested and perhaps
antagonistic original petitioner.” Mantena, 809 F.3d at 735. Such a result, the Second and
Seventh Circuits concluded, ran contrary to the portability regime enshrined in statute. See id. at
734–35; Musunuru, 831 F.3d at 889–91. To resolve the problem, they held that “the regulations
must be read to require notice to the real parties in interest.” See Mantena, 809 F.3d at 734; see
also Musunuru, 831 F.3d at 890. USCIS has since agreed. Matter of V-S-G- Inc., 2017 WL
5625783, at *8.
20
The same logic applies here. USCIS regulations specifically allow a would-be
beneficiary awaiting approval for an I-140 petition to request to port to a new employer and
thereby retain the benefit of that petition should it be approved. 8 C.F.R. § 245.25(a)(2)(ii)(B);
Supplement J Instructions 2. But as with notices of I-140 petition revocations, regulations also
provide that the agency will send any requests for evidence it chooses to issue in evaluating a
petition to “the applicant or petitioner”—not the beneficiary. 8 C.F.R. § 103.2(b)(8)(iv); see also
id. §§ 103.2(a)(3); 103.3(a)(1)(iii)(B); 103.8(a)(1)(i). So if USCIS reviews an I-140 petition for
a beneficiary who has asked to port and decides to request more evidence, it will send the request
to the employer that the beneficiary is leaving. Like the Second and Seventh Circuits explained,
the initial employer has little interest in responding when it knows the beneficiary is on his way
out (or has already left). See Mantena, 809 F.3d at 734–35; Musunuru, 831 F.3d at 889. The
result frustrates the purpose of the portability provision. Regulations that USCIS admits do not
account for the flexibility-promoting provision, see Matter of V-S-G- Inc., 2017 WL 562783, at
*4, 8, invariably lead to denied I-140 petitions for beneficiaries who try to move jobs—even
though the agency is willing to hear more evidence on the matter.
Khedkar’s case illustrates the point. He followed USCIS regulations and sent the agency
two Supplement J forms to let it know about his job changes. J.A. 653–78. After receiving the
first form, USCIS decided to issue a request for evidence that would establish that Khedkar was
and would continue to be an executive or manager. J.A. 208–17. Of course, the agency could
have just denied the petition in the first place for lack of initial evidence. But it did not. It chose
to ask for more evidence in accordance with regulations that demanded the request be sent to a
party whose interest in the matter had evaporated, despite the agency having received notice that
Khedkar had moved on. When Deloitte (understandably) could not be bothered to respond,
21
USCIS denied the I-140 petition. J.A. 206–07. Meanwhile, Khedkar had done all that USCIS
regulations required of him. The result is not only at odds with the portability provision’s aim of
encouraging job flexibility—it is unfair too.
There is no reason that the I-140 petition review process for would-be beneficiaries who
ask to port should be different from the petition revocation process that the Second and Seventh
Circuits dealt with. USCIS makes much of the fact that it never approved the petition at issue
here when revocation proceedings necessarily involve a previously approved petition. See, e.g.,
Defs.’ Reply at 8–9. But it is unclear why that matters. When the agency decides to request
evidence in handling an I-140 petition approval, that process implicates regulations that require
communication with only the petitioning employer just as a petition revocation does. Compare 8
C.F.R. § 103.2(b)(8)(iv) (“A request for evidence . . . will be communicated by regular or
electronic mail and will specify the type of evidence required . . . sufficient to give the applicant
or petitioner adequate notice and sufficient information to respond.”), id. § 103.2(a)(3) (“A
beneficiary of a petition is not a recognized party in [a benefit request] proceeding.”), and id.
§ 103.8(a)(1)(i) (“Routine service [of notices, decisions, and other papers] consists of mailing the
notice . . . to the affected party . . . .”), with id. § 205.2 (“Revocation of the approval of a
petition . . . will be made only on notice to the petitioner . . . .”), and id. § 103.2(b)(16)(i) (“If the
decision will be adverse to the applicant or petitioner and is based on derogatory information . . .
and of which the applicant or petitioner is unaware, he/she shall be advised of this fact . . . .”).
And the regulation prohibiting I-140 beneficiaries from administratively appealing unfavorable
decisions applies in both contexts. See id. § 103.3(a)(1)(iii)(B).
USCIS suggests that the distinction matters because a plaintiff challenging a revocation
has “relied upon his interest in his I-140 approval.” Defs.’ Reply at 9. It offers little more
22
explanation beyond that, so exactly how reliance factors into the calculus is anybody’s guess.
Regardless, the regulations that allow a would-be beneficiary to request to port even if he is still
awaiting I-140 approval engender reliance too. See 8 C.F.R. § 245.25(a)(2)(ii)(B); Supplement J
Instructions 2. Without those regulations, a beneficiary would be much less likely to change
employers prior to I-140 petition approval out of fear that doing so could endanger the approval.
What matters is that USCIS regulations, as written, simply do not make sense in the
regime the portability provision created. They require the agency to continue to send requests
for evidence to a petitioning employer even after the would-be beneficiary has decided to leave.
And they do not allow anyone but the indifferent prior employer to appeal unfavorable decisions.
The Court therefore holds that, when an I-140 petition is pending before USCIS and the agency
receives notice that the beneficiary wants to move to a new employer, USCIS acts inconsistently
with the portability provision if it continues to treat only the original employer as a party to the
petition adjudication proceeding. Put differently, the agency has acted arbitrarily by “fail[ing] to
consider an important aspect of” the employment-based visa scheme, see State Farm, 463 U.S. at
43, and following a regulation that, insofar as it “operates to create a rule out of harmony
with . . . statute, is a mere nullity,” see Manhattan Gen. Equip. Co., 297 U.S. at 134. If USCIS
chooses to send a request for evidence, it cannot send it solely to the original employer. And if it
denies the petition, it cannot deny access to its internal appeals apparatus to everyone but that
employer.
So who should USCIS treat as a party to I-140 petition adjudication proceedings? There
is disagreement in the I-140 petition revocation context. The Second Circuit did not provide an
answer. It merely stated that USCIS erred by providing notice to neither the beneficiary nor the
successor employer. Mantena, 809 F.3d at 736. The court then remanded to the district court to
23
decide which of those parties was entitled to notice. Id. 9 By contrast, the Seventh Circuit held
that the successor employer was the party entitled to notice because the successor employer had
taken up the previous employer’s petition and was now “the de facto petitioner.” Musunuru, 831
F.3d at 891. USCIS disagrees with the Seventh Circuit. It says that a beneficiary who ports to a
new employer should be able to participate in I-140 petition revocation proceedings because the
portability provision gives the beneficiary “a statutory interest in job flexibility.” Matter of V-S-
G- Inc., 2017 WL 5625783, at *8. The agency also believes that the initial petitioning employer
deserves notice because regulations require it, the initial employer may sometimes retain an
interest in the proceedings, and the initial employer was the one who filed the petition. Id. at
*10. But USCIS is adamant that a successor employer is not entitled to participate in an I-140
revocation proceeding because it “did not pay for the filing, is not responsible for maintaining
the petition, is not liable for the original petitioner’s compliance or malfeasance associated with
it, and cannot withdraw the petition if it no longer requires the beneficiary’s services.” Id.“Nor,” the agency adds, “can the new employer prevent the beneficiary from porting to yet
another employer.” Id. USCIS lastly points out that, because porting allows the successor
employer to adopt the original I-140 petition rather than file its own, any deficiencies in the
“petition would relate to either the original petitioner or to the beneficiary” anyway. Id. at *11.
The Court will go only so far as to say that the I-140 beneficiary who attempts to port
should be a party to petition adjudication proceedings—at least when it comes to immigrants
applying for visas reserved for multinational executives and managers. For an immigrant to earn
9
As far as this Court can tell, the district court did not decide the question on remand but
instead vacated the petition revocation and remanded to the agency. See Stipulation of Order and
Dismissal, Mantena v. Johnson, 13-cv-5300 (S.D.N.Y. June 2, 2016), ECF No. 47. The agency
later sent a notice of intent to revoke to the beneficiary. See Mantena v. Hazuda, No. 17-cv-
5142, 2018 WL 3745668, at *2 (S.D.N.Y. Aug. 7, 2018).
24
one of those visas, the I-140 petition must show that he was a manager or executive at his
original employer for at least one of the three years before he immigrated and that he would have
continued to be a manager or executive for the original employer in the United States. 8 U.S.C.
§ 1153(b)(1)(C); 8 C.F.R. § 204.5(j)(3)(i), (5). Making that showing requires a demonstration
that the immigrant managed components of the original employer, supervised subordinates at the
original employer, and exercised discretion in decisionmaking for the original employer. See 8
C.F.R. § 204.5(j)(2) (defining “[e]xecutive capacity” and “[m]anagerial capacity”). The new
employer is not well-equipped to answer follow-up questions about the evidence the original
employer submitted on those subjects. See Matter of V-S-G- Inc., 2017 WL 5625783, at *11.
But the beneficiary who performed the job is. He also has, as USCIS puts it, “a statutory interest
in job flexibility.” Id. at *8. Not to mention, he can always port to yet another new employer (as
Khedkar did). Id. at *10. Accordingly, USCIS should have sent its request for evidence to
Khedkar and permitted him to appeal. Perhaps it should have afforded party status to Khedkar’s
successor employers too, but there is no need to decide that question here.
B. Khedkar’s Unlawful Delay Claim
Khedkar next asserts that USCIS arbitrarily and capriciously delayed adjudicating his two
Form I-485 Supplement J filings. Compl. ¶¶ 93–109. Remember, agency regulations require I-
140 petition beneficiaries to file a Supplement J to request to port to a new employer. See 8
C.F.R. § 245.25(a); Supplement J Instructions 1.
Khedkar’s briefing on this claim is short and hard to follow. See Pl.’s Mot. at 28–31.
Much of his argument appears to overlap with his first claim (in fact, Khedkar’s reply brief
discusses the first two claims together—there is no separate section for his delay claim, see
generally Pl.’s Reply at 3–18). Essentially, Khedkar says that USCIS acted improperly when “it
25
failed to issue any request to [him] to address the merits of the underlying I-140 Petition” despite
regulations that allow immigrants awaiting the approval of a petition to port. See id. at 28. The
Court has already agreed that this argument and other similar ones establish that USCIS was
wrong not to treat Khedkar as a party to its I-140 petition adjudication proceedings. It will not
rehash the arguments in the context of a claim Khedkar characterizes as attacking the agency’s
excessive “delay” in making a decision on his Supplement J filings.
To the extent Khedkar independently challenges that delay, his claim is unfounded. As
mentioned, the portability provision “preserves the validity of only those I-140 petitions that
have been approved.” Ravulapalli, 773 F. Supp. 2d at 53; see also Matter of Al Wazzan, 25 I. &
N. Dec. at 367. So USCIS can ratify an immigrant’s Supplement J request to port only after it
has approved an I-140 petition that benefits him. Agency regulations thus require the agency to
resolve an I-140 petition before evaluating the related portability request. See Supplement J
Instructions 2; see also 8 C.F.R. § 245.25(a)(2)(ii); Employment-Based Immigrant Rule, 81 Fed.
Reg. at 82,418. And once again, the fact that an immigrant’s I-485 application has been pending
for more than 180 days does not mean the underlying I-140 petition is necessarily valid. See
Matter of Al Wazzan, 25 I. & N. Dec. at 364–67. The agency’s “delay” in handling Khedkar’s
Supplement J filings was the result of appropriately putting the I-140 petition first.
Nowhere does Khedkar argue that USCIS unlawfully delayed adjudicating the I-140
petition—much less ground such an argument in law. He does not even cite any authority
governing claims of unreasonable delay under the APA. See 5 U.S.C. § 706(1) (allowing a
reviewing court to “compel agency action unlawfully withheld or unreasonably delayed”). All
he does is complain that the Supplement J forms “remained pending for over 2 years,” Pl.’s Mot.
at 30, and cite a statute that provides: “It is the sense of Congress that the processing of an
26
immigration benefit application should be completed not later than 180 days after the initial
filing of the application . . . .” 8 U.S.C. § 1571(b). But “sense of Congress” language like that in
section 1571(b) “is best interpreted as nonbinding.” Palakuru v. Renaud, --- F. Supp. 3d ----,
2021 WL 674162, at *4 (D.D.C. Feb. 22, 2021); see also Emergency Coal. to Defend Educ.
Travel v. U.S. Dep’t of the Treasury, 545 F.3d 4, 14 n.6 (D.C. Cir. 2008) (“[A] a sense of
Congress resolution is not law.”). And “[a]bsent a congressionally supplied yardstick,” courts
have held that immigration “delays of about two years” are reasonable. See Sarlak v. Pompeo,
No. 20-cv-35, 2020 WL 3082018, at *6 (D.D.C. June 10, 2020) (collecting cases). The Court
stops there. It is not obligated to do Khedkar’s research and make arguments for him. See
Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[P]erfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are deemed waived.”).
C. Khedkar’s Fifth Amendment Procedural Due Process Claim
Lastly, Khedkar claims that USCIS’s handling of the I-140 petition—from sending the
request for evidence to denying his appeal—violated his Fifth Amendment due process rights.
Compl. ¶¶ 110–15. “A procedural due process violation occurs when an official deprives an
individual of a liberty or property interest without providing appropriate procedural protections.”
Atherton v. D.C. Off. of Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009).
Khedkar’s papers leave even more to be desired with respect to his due process claim
than his unlawful delay claim. His complaint states generally that USCIS’s actions
“constitute[d] a deprivation of liberty” without explaining what liberty interest the agency
infringed. Compl. ¶¶ 110–15. And in his motion for summary judgment, Khedkar omits any
mention of his procedural due process claim entirely. See generally Pl.’s Mot. Only in his reply
27
brief does Khedkar finally come out and say that USCIS encroached on the liberty interest he has
“in choosing the employment in which he wishes to engage.” See Pl.’s Reply at 19.
The Court will not entertain this tardy argument. See Gomez v. Trump, 485 F. Supp. 3d
145, 188 (D.D.C. 2020) (declining to consider plaintiffs’ arguments supporting a constitutional
due process claim because they made the arguments for the first time in their reply brief). To be
sure, agency action implicates a constitutionally protected “right to follow a chosen trade or
profession” if it inflicts on an individual “binding disqualification from work or broad preclusion
from his or her chosen field” and not just “the loss of one position in the profession.”
Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 538–39 (D.C. Cir. 2015) (cleaned up)
(quoting Kartseva v. Dep’t of State, 37 F.3d 1524, 1529 (D.C. Cir. 1994)). But presented with
incomplete briefing on whether the denial of a visa for Khedkar’s benefit would amount to that
kind of categorical bar and given “the doubts cast by many courts on the liberty and property
interests implicated in an immigrant visa,” the Court is loath to wade into the issue. See
Mantena, 809 F.3d at 736. Not to mention, the Court has already required USCIS to treat
Khedkar as a party to the I-140 petition adjudication process on statutory grounds. There is thus
little reason to address “this potentially problematic constitutional question.” See id.
V. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment (ECF No. 15) is
GRANTED IN PART AND DENIED IN PART and Defendants’ motion for summary
judgment (ECF No. 17) is GRANTED IN PART AND DENIED IN PART. The Court vacates
Defendants’ denial of the I-140 petition that named Plaintiff as beneficiary and remands so that
Defendants can provide Plaintiff an opportunity to respond to the request for evidence. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
28
Dated: August 5, 2021 RUDOLPH CONTRERAS
United States District Judge
29