Court Finds Beneficiary Has Standing to Challenge Denial of Petitioner’s Form I-140 Immigrant Visa Petition

October 16th, 2013

The Sixth Circuit for the US Court of Appeals has found that under the APA the beneficiary has procedural standing to challenge the denial of his employer petitioner’s Form I-140 immigrant visa petition on his behalf.  Patel v. USCIS,
10/11/13 (No. 12-1962).   The court provided the following reasoning for its decision.  Under the Administrative Procedure Act (APA), a party has prudential standing (ability to sue) if he is adversely affected by a US government action.  A party is adversely affected if the interest he seeks to protect is protected or regulated by a statute that the party claims was violated.  In this case,  that statute is 8USC §1153(b)(3), which states in relevant part that visas shall be made available to qualified applicants under the labor certification process under certain conditions.  Therefore it expressly provides for issuance of employment visas directly to qualified aliens and the qualified alien who wants one of these visas is within the protected zone.  In other words, it suggests that Congress gave the immigrant a stake in the visa process, since it is the immigrant and not the employer who is entitled to the immigrant visa.  The Court also referred to two other provisions to corroborate this conclusion:  (1) 8USC §1255(b) that provides for a permanent, as opposed to a temporary, visa under 8USC §1153(b)(3); and (2) the adjustment of status (I-485) portability provisions of 8 USC §1154(j) and 8 USC §1182(a)(5)(A)(iv).  Furthermore, the Court referred to other cases finding standing for the beneficiary to challenge the denial of his employer’s I-140 petition for an employment visa.