Mantena v. Johnson, No. 14-2476 (2d Cir. 2015)Annotate this Case
Plaintiff arrived in the United States on an H1-B visa and pursued employment-based status adjustment to permanent residency. Plaintiff's original petitioning employer filed an alien labor certification for her with the Department of Labor, followed by an I‐140 “Immigrant Petition for Alien Worker” with USCIS. Plaintiff filed for adjustment of status to obtain a green card and then changed employers pursuant to the portability provisions of the American Competitiveness in the 21st Century Act of 2000 (AC-21), 8 U.S.C. 1154(j) and 8 U.S.C. 1182(a)(5)(A)(iv). The original petitioning employer subsequently pleaded guilty to mail fraud, USCIS initiated revocation of all petitions filed by the employer, but neither plaintiff nor her new employer were informed of these events. Denial of her green card application purportedly gave her notice of the I‐140 revocation. As a preliminary matter, the court concluded that it has subject matter jurisdiction to consider plaintiff's claims. On the merits, the court held that USCIS acted inconsistently with the statutory portability provisions of AC‐21 by providing notice of an intent to revoke neither i) to an alien beneficiary who has availed herself of the portability provisions to move to a successor employer nor ii) to the successor employer, who is not the original I‐140 petitioner, but who, as contemplated by AC‐21, has in effect adopted the original I‐140 petition. Accordingly, the court vacated and remanded for further proceedings.