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De Souza v. Napolitano

United States District Court, D. Massachusetts

November 26, 2014

JOSE CARLOS DE SOUZA and SIRLENE MARIA GROBBERIO STEFANON, Plaintiffs,
v.
SECRETARY JANET NAPOLITANO et al., Defendants

For Jose Carlos De Souza, Sirlene Maria Grobberio Stefanon, Plaintiffs: William P. Joyce, Joyce and Associates, P.C., Boston, MA.

For Secretary Janet Napolitano, as Secretary of the U.S. Department of Homeland Security, Attorney General Eric Holder, Jr. as, U.S. Attorney General, Director Alejandro Mayorkas, as Director, U.S. Citizenship and Immigration Services, Gregory Richardson, as Director, Texas Center, U.S. Citizenship and Immigration Services, Defendants: Michael P. Sady, United States Attorney's Office, Boston, MA; Stacey I. Young, U.S. Department of Justice, Washington, DC.

For David Roark, Director, Defendant: Stacey I. Young, U.S. Department of Justice, Washington, DC.

Page 176

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge.

This case arises out of the revocation of plaintiff Jose Carlos De Souza's previously approved Form I-140 Immigration Petition for Alien Worker (" I-140 petition" ) by the United States Citizenship and Immigration Services (" USCIS" ). Pending before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the defendants' motion will be allowed and the plaintiffs' motion will be denied.

I. Background

A. Statutory framework

The Immigration and Nationality Act provides for the classification of an alien seeking admission to the United States based on an offer of permanent employment as a skilled worker under the " third preference" category. 8 U.S.C. § 1153(b)(3)(A)(i). The Secretary of Homeland Security (" the Secretary" ) has delegated to USCIS the authority to accept, reject and/or adjudicate immigrant visa petitions.

Before filing a petition with USCIS, an employer must obtain certification from the Department of Labor (" DOL" ) stating that there are no qualified, able and willing United States workers able to fill the employer's job opening. If DOL approves the application, the employer may then file an I-140 petition with USCIS to request that the alien be classified as an employment-based immigrant.

If USCIS denies the employer's I-140 petition, the employer may appeal the decision to the Administrative Appeals Office (" AAO" ). 8 C.F.R. § 103.3(a)(1)(ii). The AAO's decision constitutes the final agency action.

An approved I-140 petition may, however, be revoked. Under 8 U.S.C. § 1155,

[t]he Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition [for an immigrant visa].

Such revocation authority has also been delegated to USCIS. As with decisions to deny an I-140 petition, decisions to revoke an approved petition may be ...


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