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Media Alerts - Patel v. United States Citizenship and Immigration Services - Sixth Circuit
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November 22, 2013
  Patel v. United States Citizenship and Immigration Services - Sixth Circuit
Headline: The Sixth Circuit decides that aliens have prudential and constitutional standing to challenge the denial of their potential employer's petition for an employment visa.

Area of Law: Constitutional Law

Issues Presented: (1) Does an alien have prudential standing to challenge the denial of his or her potential employer's petition for an employment visa? (2) If the alien can establish prudential standing, does the alien have constitutional standing to bring an action in federal court?

Brief Summary: Patel, a citizen of India, entered the United States on a one-year visitor's visa, overstayed the visa, and began looking for a job that would allow him to obtain an employment visa. Six years after his visa expired, Patel obtained a job offer from Deluxe Inn. The United States Citizenship and Immigration Services (CIS) denied Deluxe Inn's petition. Patel obtained another job offer from a second prospective employer, Peshtal Inc, and the CIS denied Peshtal Inc.'s petition. Peshtal Inc. did not appeal the denial of the petition. Instead, Patel sued the CIS under the Administrative Procedure Act (APA), alleging that the denial of the prospective employer's petition was arbitrary, capricious, and not in accordance with law. The district court dismissed the case for lack of prudential standing. The Sixth Circuit reversed and remanded.

Significance: An alien has prudential standing to sue under the APA and constitutional standing to challenge the denial of his prospective employer's petition for an employment visa.

Extended Summary: Patel, a citizen of India, faced removal proceedings when he overstayed his visa. To stay in the country, he tried to become a permanent resident by obtaining an employment visa. There is a three-step process to obtain an employment visa. First, the potential employer must apply for a labor certification from the United States Department of Labor and must demonstrate that there are no qualified U.S. workers available or willing to work for the proffered wage. Second, if the Department of Labor approves the application, the potential employer must file a petition for an employment visa on the alien's behalf with the CIS. The CIS will approve the petition if the employer has an approved labor certification and the alien has at least two years of relevant training or experience. Third, the alien must apply to adjust his status to that of a permanent resident.

Six years after Patel's visa expired, Patel obtained a job offer from Deluxe Inn. Deluxe Inn applied for and received a labor certification. But when Deluxe Inn filed a petition for an employment visa on Patel's behalf, the CIS denied the petition because Deluxe Inn could not establish that it could pay the proffered wage. Deluxe Inn did not appeal the decision. Four years later, Patel obtained a job offer from another prospective employer, Peshtal Inc. Instead of applying for a labor certification, Peshtal Inc. jumped to the second step of the status-adjustment process and filed a petition for an employment visa on Patel's behalf. The CIS denied Peshtal Inc.'s petition because Peshtal Inc. failed to complete the first step of the process, i.e. get a labor certification. Peshtal Inc. did not appeal the denial of the petition. Instead, Patel sued the CIS under the APA, alleging that the denial of Peshtal Inc.'s petition was arbitrary, capricious, and not in accordance with law. The district court dismissed the case for lack of prudential standing.

Under the APA, a party has prudential standing if the party is adversely affected or aggrieved by agency action. "A party is 'adversely affected or aggrieved' if the interest he seeks to protect is 'arguably within the zone of interests to be protected or regulated by the statute" in question. The Sixth Circuit explained that the prudential-standing test was not meant to be demanding, that Congress wanted to make agency action presumptively reviewable, and that the benefit of any doubt goes to a plaintiff because the plaintiff only needs to be "arguably" within the statute's zone of interest.

The Sixth Circuit concluded that Patel had prudential standing because employment visas are issued directly to qualified aliens, which demonstrates that "the alien's interests are among those 'protected or regulated by the statute.'" To corroborate its conclusion, the Sixth Circuit cited two other provisions: 8 U.S.C. § 1255(b) and the portability provisions in 8 U.S.C. § 1154(j) and 8 U.S.C. § 1182(a)(5)(A)(iv).

Under 8 U.S.C. § 1255(b), if an alien's employment visa is approved under section 1153(b)(3), the alien becomes eligible for a permanent visa - not a temporary one. And, under the portability provisions in 8 U.S.C. § 1154(j) and 8 U.S.C. § 1182(a)(5)(A)(iv), an alien's petition can remain valid even if the alien changes jobs. Therefore, according to the Sixth Circuit, this demonstrates that Congress intended to benefit both the alien and the U.S. employer because Congress had the option of making the visa temporary, lasting only as long as the employer needed the alien's service. And lastly, the Sixth Circuit noted that its conclusion was supported by decisions from three other circuits.

Although the district court did not decide whether Patel had constitutional standing, the Sixth Circuit decided the issue because Patel's application process had already dragged on for years. To establish constitutional standing, an alien "must prove that he suffered an injury in fact that is fairly traceable to CIS's conduct and redressable by a favorable decision." The Sixth Circuit found that Patel's injury - the loss of an opportunity to become a permanent resident - is fairly traceable to the CIS and that a favorable decision would redress Patel's injury.

The Sixth Circuit reversed the judgment of the district court but declined to address the merits of the case. Instead, the court remanded the case for further proceedings.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0293p-06.pdf

Panel: Daughtrey, Sutton, and Kethledge

Date of Issued Opinion: October 11, 2012

Docket Number: 12-1962

Decided: October 11, 2013

Counsel: ON BRIEF: Michael E. Piston, Troy, Michigan, for Appellant. Troy D. Liggett, United States Department of Justice, Washington, D.C., Agnes Kempker-Cloyd, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Author of Opinion: Circuit Judge Kethledge

Case Alert Author: Jessica Michels

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 11/22/2013 02:50 PM     6th Circuit  

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