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Kurapati v. U.S. Bureau of Citizenship & Immigration Servs.

United States Court of Appeals, Eleventh Circuit

December 22, 2014

SUNIL KUMAR KURAPATI, BHARATHI MALLIDI, Plaintiffs - Appellants,
v.
U.S. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. ATTORNEY GENERAL, ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration Services, PERRY RHEW, Chief, United States Citizenship and Immigration Services Administrative Appeals Office, MARK HAZUDA, Service Center Director, United States Citizenship and Immigration Services Nebraska Service Center, ROBERT S. MUELLER, III, Director, Federal Bureau of Investigation, Defendants - Appellees

Page 1256

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:13-cv-00068-JSM-AEP.

For Sunil Kumar Kurapati, Bharathi Mallidi, Plaintiffs - Appellants: Jeffrey A. Devore, Devore Law Group, PA, Palm Beach Gardens, FL.

For U.S. Bureau of Citizenship And Immigration Services, Secretary, U.S. Department of Homeland Security, Defendants - Appellees: Aaron S. Goldsmith, Melissa S. Leibman, U.S. Department of Justice, Civil Division, Washington, DC.

For U.S. Attorney General, ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration Services, PERRY RHEW, Chief, United States Citizenship and Immigration Services Administrative Appeals Office, MARK HAZUDA, Service Center Director, United States Citizenship and Immigration Services Nebraska Service Center, ROBERT S. MUELLER, III, Director, Federal Bureau of Investigation, Defendants - Appellees: Aaron S. Goldsmith, U.S. Department of Justice, Civil Division, Washington, DC.

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

OPINION

Page 1257

ON PETITION FOR REHEARING

PER CURIAM

U.S. Citizenship and Immigration Services (USCIS) moved for panel rehearing in this case, with an opinion originally filed on September 22, 2014, and published at 767 F.3d 1185. In its petition, USCIS challenges our interpretation of a provision of the Immigration and Nationality Act (INA) in considering the district court's subject matter jurisdiction. We agree with the government's interpretation of that provision, but we remain convinced that the district court had subject matter jurisdiction over the allegations in the complaint. Accordingly, we grant the motion for rehearing, vacate our prior opinion, and substitute it with the following opinion, which is substantially the same except as to Section III.

Page 1258

Sunil Kurapati and his wife Bharathi Mallidi, natives and citizens of India, appeal from the district court's dismissal for lack of subject matter jurisdiction of their complaint challenging USCIS's revocation of I-140 visa petitions filed on Kurapati's behalf. On appeal, Kurapati and Mallidi challenge the district court's conclusion that, because Kurapati was a beneficiary, instead of the petitioner, of an I-140 visa petition, he and Mallidi lacked standing to bring their claims. They also argue that the district court erred as a matter of law in concluding that the discretionary decision bar of 8 U.S.C. § 1252(a)(2)(B)(ii) divested the court of jurisdiction because they were raising a question of law, specifically whether USCIS adhered to its pre-revocation notice regulations.

I.

In order to address the issues raised in this appeal, a brief overview of the immigration procedure applicable to Appellants is necessary. Under the INA, for a company to permanently employ an immigrant worker, it must follow three steps. First, the company must file an immigrant labor certification application with the Department of Labor. INA § § 203(b)(3)(C), 212(a)(5); 8 U.S.C. § § 1153(b)(3)(C), 1182(a)(5). Second, after the application is approved, the employer must file an I-140 visa petition on the immigrant's behalf with USCIS. INA § 204(a)(1)(F); 8 U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(a). Third, if the I-140 visa petition is approved, the immigrant and his spouse can file an I-485 application for adjustment of status. INA § § 203(d), 245(a); 8 U.S.C. § § 1153(d), 1255(a); 8 C.F.R. § 245.2(a)(2). Approval of an I-140 visa petition remains valid for beneficiaries with pending adjustment of status applications who change jobs or employers if the adjustment of status application has remained unadjudicated for 180 days or more and the new job is in the same or a similar occupational classification as ...


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