Federal Appeals Court Rules that Employee Has Standing to Challenge Denial of Employer’s I-140 Immigrant Visa Petition

The U.S. Court of Appeals for the Sixth Circuit recently ruled that the beneficiary of an employment-based immigrant visa petition has an independent legal right to challenge in court USCIS’ denial of the petition, even if the petitioning employer itself does not wish to appeal.

In this case, USCIS denied the employer’s I-140 immigrant visa petition because the employer failed to obtain and attach its own labor certification to the petition, and instead attached a labor certification filed by the beneficiary’s previous employer. Although the employer chose not to appeal USCIS’ denial, the beneficiary employee nevertheless filed a federal lawsuit seeking review of the agency’s decision.

Although a lower court had dismissed the employee’s complaint for lack of legal standing, the Sixth Circuit ruled that the employee did have an independent legal right to sue USCIS in court. Specifically, the Sixth Circuit found that because the statute at issue provides for issuance of employment visas directly to qualified immigrants, the employee was within the ‘zone of interests’ the statute was designed to protect, and therefore had a stake in the visa process. In addition, the Sixth Circuit looked to cases from other appellate courts, which had reached this same conclusion.

Note that even if USCIS were to ultimately approve an I-140 petition after a beneficiary’s appeal, the employer nonetheless retains an unrestricted right to withdraw it at any time prior to the approval of the beneficiary’s permanent residence.

The Sixth Circuit’s ruling, which is applicable in Kentucky, Michigan, Ohio, and Tennessee, is in line with decisions from three other U.S. Courts of Appeals: the D.C. Circuit (District of Columbia), Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia), and Seventh Circuit (Illinois, Indiana, and Wisconsin).