### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40368

GENE’S MACHINE, INCORPORATED; MARK WOOD; TRACY WOOD; CRAIG WOOD; J.W., Plaintiffs-Appellants v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO MAYORKAS; HILDA L. SOLIS; DAVID L. ROARK, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 6:11-CV-4

Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: * The district court dismissed the com p l aint o f G e n e ’ s M achine, Inc. (“Gene’s Machine”) and Mark Wood and the Wood family asserting that the defendant government agencies and official s violated the Administrative Procedure Act (“APA” ) , 5 U .S .C

. § 7 0 6 , in d e nyin g an I-140 visa petition filed by Gene’s Machine on behalf of Mark Wood, an alien Gene’s Machine seeks to employ. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 1 7, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-40368 Document: 00512085340 Page: 1 Date Filed: 12/17/2012No. 12-40368

Gene’s Machine appeals the district court’s dismissal of its claims challenging

a Department of Labor regulation, 2 0 C .F

. R

. § 6 5 6 .3 0 , which was amended in 2007 to provide that a labor certification granted after the effective date of July 16, 2007 ex p ires if not filed with the Department of Homeland Security in support of an I-140 visa petition within 180 days of the grant of certification, id

. § 656.30(b)(1), or, as in the case of Gene’s Machine, th a t a l ab o r ce rtifica tio n gra n te d b e fo re th e e ffe ctiv e d a te e x p ire s if n o t file d in su p p o rt o f a n I-1 4 0 p e titio n w ith in 1 8 0 d a y s o f th e e ffe ctiv e d a te , id

. § 656.30(b)(2). Gene’s Machine claims that the amended regulation does not comport with the text of the labor cert i f i c a t i on statute, 8 U .S .C

. § 1 1 8 2 (a)(5 )(A), and is arbitrary and capricious. The district court also held that Mark Wood and the Wood family, the intended beneficiaries of the visa petition who asserted claims identical to those of Gene’s Machine, lacked Article III standing. As to the claims of Gene’s Machine, we affirm the judgment of dismissal for failure to state a claim essentially for the reasons given by the district court in its well-reasoned opinion. Gene’s Mach., Inc. v. Dep’t of Homeland Sec ., No. 6:11-CV-4, 2012 WL 1067557 (S.D. Tex. Mar. 28, 2012). Given the dismissal of 1 those claims, and because the claims of Mark Wood and the Wood family are the

same as those of Gene’s Machine, the question of the standing of Mark Wood and the Wood family is moot. AFFIRMED.

Ge ne’s Mac hine asser ted add itio nal clai ms that we re dis mi ss ed by the dist ric t cour t 1 but we re not rais ed on app ea l , i n c l u d i n g clai ms ass ert ing violat ion of due pr oce ss and equit able tol ling due to inef fec tive ass is t ance of couns el. We expr es s no opi nion on thos e clai ms . 2 Case: 12-40368 Document: 00512085340 Page: 2 Date Filed: 12/17/2012