Mantena v. Napolitano - Second Circuit

Preserving Federal Court Review Over Visa Petition Revocation Procedures


December 15, 2014

The Council, with AILA, filed an amicus brief arguing that a district court has jurisdiction to review procedures followed by USCIS to revoke an employment-based visa petition. Amici argue that INA § 242(a)(2)(B), which limits judicial review over certain discretionary decisions, does not preclude review over the question of whether USCIS was required to provide notice of the visa petition revocation proceedings to the beneficiary. This is particularly true where, as in this case, the beneficiary had utilized the “porting” provision of INA § 204(j) to change employers more than 2 ½ years earlier, but USCIS issued its notice of intent to revoke only to the former employer and revoked the petition when the former employer did not respond.

USCIS also denied the beneficiary’s application to adjust status to permanent residence because of the revocation. Amici argue that the beneficiary became the real “affected party” in the visa petition proceedings, and was thus entitled to notice and an opportunity to object. USCIS regulations cannot be interpreted as excluding the beneficiary, since this interpretation conflicts with Congressional intent in enacting § 204(j), which explicitly allows the beneficiary to sever her relationship with the petitioning employer. The Second Circuit agreed with amici that the district court had jurisdiction. Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015).

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