DC court: USCIS has last word on revoked visa petitions

Photograph of a U.S. Department of Homeland Security .Rejects Indian citizen’s challenge saying Congress gave the agency “unreviewable discretion”

Rejecting an Indian citizen’s challenge, a Washington court has held that courts do not have the power to review US Citizenship and Immigration Services’ (USCIS) decisions to revoke approval of immigrant visa petitions.

The US Court of Appeals for the DC Circuit gave this ruling on Tuesday in technology staffing firm iTech US Inc’s challenge to USCIS revoking an I-140 immigrant visa petition filed in 2015 on behalf of Vishnu Vardhana Reddy, a citizen of India, Law360 reported.

USCIS revoked its approval of Reddy’s visa in 2017 citing inconsistencies over his educational requirements and the wages he would be paid by iTech. The company filed a motion for reconsideration, which USCIS denied in 2019.

iTech then challenged USCIS’ decision in Washington, DC, federal court, claiming the agency’s decision to revoke approval of the petition was arbitrary and capricious.

Read: USCIS to allow resubmission of certain FY 2021 H-1B petitions (June 24, 2021)

A three-judge panel including Indian American Circuit Judge Sri Srinivasan joined nine other appellate courts Tuesday in holding that the Congress gave the agency “unreviewable discretion” to revoke visa petitions it had previously approved.

It unanimously rejected claims by Burlington, Vermont-based iTech that only decisions denying ultimate relief to visa applicants, and not revoking preliminary approval for work visas, were beyond the reach of courts.

The panel said the Immigration and Nationality Act was designed to broadly deny judicial review of any decision or action by the federal government related to visa petitions, and not just a final denial.

With Tuesday’s ruling, every federal appeals court except the 9th Circuit has now held or assumed without deciding that visa petition revocations cannot be reviewed in court. The 9th Circuit came to the opposite conclusion in the 2004 case Ana International Inc v. Way.

The INA, in a section entitled “denials of discretionary relief,” says courts cannot review decisions involving specific types of immigration petitions, or “any other decision or action” made under the discretionary authority created by the law.

Read: USCIS to review rejected H-1B petitions with late start date (May 4, 2021)

US District Judge Christopher Cooper last year granted USCIS’ motion to dismiss the case. He said the INA gives the agency the ability to revoke an I-140 petition “at any time” and for any reason, making it the kind of discretionary relief shielded from court review.

iTech appealed, arguing that because an I-140 petition is only one step in the visa process, USCIS was not formally denying relief by revoking approval.

The DC Circuit on Tuesday disagreed. The term “any other decision or action” is broad by definition and Congress would have chosen different words if it intended to limit the scope of the law, the court said.

“We see little basis for claiming that Congress intended to confine this jurisdiction-stripping provision to a narrow spectrum of ‘relief’ where many provisions of (the INA) are aimed at protecting the Executive’s discretion from the courts — indeed, that can fairly be said to be the theme of the legislation,” Circuit Judge Robert Wilkins wrote.

Read: DC Circ. Says Gov’t Has Last Word On Revoked Visa Petitions (July 21, 2021)

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