UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SHASHIKANT PATEL, 

 Plaintiff, 

v. Case No. 15-11353 

 HON. TERRENCE G. BERG 

UNITED STATES CITIZENSHIP AND HON. STEPHANIE D. DAVIS 

IMMIGRATION SERVICES, 

 Defendant. 

 / 

OPINION AND ORDER GRANTING 

DEFENDANT’S MOTION TO DISMISS (DKT. 5) 

 In this case, a non-U.S. citizen is asking the Court to overturn a decision by 

the United States Citizenship and Immigration Services (“USCIS”). Specifically, 

Plaintiff Shashikant Patel challenges as arbitrary and capricious the decision by 

Defendant USCIS to deny his application for employment authorization. On 

February 2, 2015, Plaintiff filed a Form I-765 seeking “permission to accept 

employment” on the ground that he had a Form I-485 application for adjustment of 

immigration status pending before the Executive Office of Immigration Review. (See 

Dkt. 5, Ex. F.) On March 16, 2015, USCIS denied Plaintiff’s Form I-765 application 

for failure to establish eligibility. (See Dkt. 5, Exs. F, G.) Plaintiff filed this 

complaint on April 14, 2015 seeking judicial review of the decision pursuant to the 

Administrative Procedure Act (“APA”), 5 U.S.C. § 702. (Dkt. 1, ¶ 1.) 

 Defendant now moves to dismiss under Federal Rule of Civil Procedure 

12(b)(1), arguing that Plaintiff lacks constitutional standing, without which the 

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Court has no subject matter jurisdiction over his claim; and under Federal Rule of 

Civil Procedure 12(b)(6), asserting that the complaint fails to state a claim upon 

which relief can be granted. (See Dkt. 5.) The motion is fully briefed and a hearing 

was held in this matter on November 18, 2015 in Detroit, Michigan. (See Dkts. 9, 

10, 13.) After careful review of the entire record, the briefs of the parties, their 

arguments at the hearing, and the relevant legal authorities, the Court concludes 

that Defendant’s motion to dismiss (Dkt. 5) should be GRANTED for the reasons 

set out below. 

I. FACTUAL AND PROCEDURAL HISTORY 

 Plaintiff is a native and citizen of India who currently lives in North 

Muskegon, Michigan. (Dkt. 1, ¶ 2.) He first entered the United States in October 

1999 as a B-2 nonimmigrant authorized to remain in the country for one year, until 

October 2000. (Dkt. 5, Ex. A, p. 2.) However, Plaintiff overstayed his visa and began 

to seek employment. (Id.) 

A. Obtaining Employment-Based Permanent Residency 

 Under the Immigration and Nationality Act (“INA”), a non-citizen skilled 

worker can seek to become a permanent resident of the United States by obtaining 

an employment visa through a three-step process which requires action by both the 

non-citizen and his or her employer. See Matovski v. Gonzalez, 492 F.3d 722, 726–27 

(6th Cir. 2007). The first two steps must be taken by the employer. First, the 

employer must file an application with the Department of Labor (“DOL”) for labor 

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certification stating that there are insufficient qualified, able, and willing U.S. 

workers to fill the position. 8 U.S.C. § 1153(b)(3)(C); 1182(a)(5)(A)(i)(I). 

 Second, once the labor certification has been obtained, the employer must file 

a petition with USCIS for an employment visa on behalf of the non-citizen 

employee. This petition for an employment visa is called a Form I-140 petition. 8 

U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(a). A Form I-140 petition filed on behalf of a 

skilled worked will be approved if, among other things, the employer has obtained 

valid labor certification and the non-citizen employee has at least two years of 

relevant training or experience. 8 U.S.C. § 1153(b)(3)(A)(i); 8 C.F.R. § 204.5(l). 

 The third and final step must be taken by the individual seeking 

employment. While the employer’s Form I–140 petition is pending (or after it has 

been approved), the non-citizen employee must file a Form I-485 to apply to adjust 

his or her status to that of a permanent resident. 8 U.S.C. § 1255; 8 C.F.R. § 

245.2(a)(3)(ii). It is possible for the non-citizen to file the Form I-485 application (for 

adjustment of status) at the same time that the Form I-140 petition (for 

employment visa) is filed.1 

Once the employer and the applicant have completed all three steps, two 

conditions must be met for USCIS approval: the applicant “must be eligible to 

receive an immigrant visa and is admissible to the United States for permanent 

                                                            

1 In July 2002, USCIS created a rule that allows “concurrent filing” of the Form I-140 Petition for 

Alien Worker and the Form I-485 Adjustment of Status Application. See 67 Fed. Reg. 49,561 (July 

31, 2002), codified at 8 C.F.R. § 245.2(a)(2)(i)(B). Previously, the Form I-140 had to be approved 

before a Form I-485 could be filed. Plaintiff took advantage of the concurrent-filing rule in this case. 

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residence”2 and “an immigrant visa is immediately available to him at the time his 

application is filed.”3 8 U.S.C. § 1255(a). Approval of the I-485 application for 

adjustment of status is therefore contingent upon approval of the employer’s I–140 

petition for an employment visa. See 8 C.F.R. § 245.2(a)(2)(i). 

B. Plaintiff’s Applications for Employment-Based Permanent Residency 

 Plaintiff has twice attempted to obtain permanent resident status through 

this process. In 2006, employer Deluxe Inn, seeking to hire Plaintiff as a lodging 

manager, applied and was granted labor certification from the DOL. (Dkt. 1, ¶ 6.) 

On August 16, 2007, Deluxe Inn filed a Form I-140 petition for an employment visa 

on Plaintiff’s behalf and Plaintiff filed a Form I-485 application to adjust his 

residential status. (Id. at ¶ 7-9.) USCIS denied Deluxe Inn’s Form I-140 petition on 

April 30, 2009 and, as a result, Plaintiff’s Form I-485 application was denied on 

June 10, 2009. (Id. at ¶¶ 9, 10.) The Department of Homeland Security initiated 

removal proceedings against Plaintiff on August 30, 2009. (Id. at ¶ 11.) 

 On February 3, 2010, while removal proceedings were pending, Peshtal, Inc. 

filed a Form I-140 petition on Plaintiff’s behalf. (Id. at ¶ 12.) Peshtal, Inc., like 

                                                            

2 An applicant can be “eligible to receive an immigrant visa” through a family member, a job offer or 

employment, refugee or asylum status, or a number of other special provisions. See USCIS, Green 

Card Eligibility, https://www.uscis.gov/green-card/green-card-processes-and-procedures/green-cardeligibility (last updated: Mar. 30, 2011). Whether an applicant is admissible depends on the 

particular category under which the applicant seeks to immigrate. Id. Possible grounds for 

inadmissibility could be health, criminal, or security-related. Id. 

3 Where an applicant like Plaintiff seeks to immigrate under an employment-based preference 

category, visa availability is determined by: (1) the applicant’s priority date assigned based on the 

immigrant petition filing date or the date the Department of Labor accepts an application for a labor 

certification; (2) the preference category the applicant is immigrating under; and (3) the country, 

usually the applicant’s country of citizenship, the visa will be charged to. See USCIS, Green Card 

Eligibility, https://www.uscis.gov/green-card/green-card-processes-and-procedures/green-cardeligibility (last updated: Mar. 30, 2011). Taken together, the three pieces of information determine 

how long an applicant will wait for a visa to be “immediately available”. Id. 

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Deluxe Inn, sought to hire Plaintiff as a lodging manager. (Id.) Peshtal, Inc., 

however, did not obtain its own labor certification before filing the Form I-140 

petition; instead, Peshtal, Inc. attached the labor certification obtained by Deluxe 

Inn in 2006, effectively skipping step one. (See Dkt. 5, Ex. B, p. 3.) When Plaintiff 

appeared in immigration court that same day, he requested and was granted a 

continuance to allow USCIS time to consider Peshtal, Inc.’s newly-filed Form I-140 

petition. (Dkt. 5, Ex. A, p. 3.) 

 On July 26, 2010, USCIS denied Peshtal, Inc.’s Form I-140 petition because it 

had no supporting labor certification. (Dkt. 1, ¶ 13.) Over the next nine months, 

Plaintiff requested and was granted additional continuances by the immigration 

judge until his April 13, 2011 hearing, when the immigration judge ordered Plaintiff 

removed to India after deciding that no good cause existed to delay the proceedings 

any further. (Dkt. 5, Ex. A, pp. 4-7.) The immigration judge based her decision to 

remove Plaintiff in part on “a determination that [Plaintiff] is not an eligible 

beneficiary of an intended employment-based immigrant visa petition.” (Id. at 5.) 

 The reason Plaintiff was not an eligible beneficiary of an employment-based 

immigrant visa petition was because, as stated, USCIS denied Peshtal, Inc.’s Form 

I-140 petition for an employment visa on July 26, 2010 because Peshtal, Inc. had 

not completed step one of the process by obtaining its own labor certification prior to 

filing the petition.4 (Dkt. 1, ¶ 13.) In short, Plaintiff, since beginning the process to 

                                                            

4 Plaintiff has challenged this decision to deny Peshtal Inc.’s Form I-140 petition as arbitrary and 

capricious in a lawsuit pending in the Western District of Michigan. Patel v. United States 

Citizenship and Immigration Services, No. 10-cv-1047, (W.D. Mich.), Dkt. 1. Plaintiff’s May 13, 2014 

motion for summary judgment remains pending as of the date of this Order. Id., Dkts. 25-27. 

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become a permanent resident, has had two Form I-140 petitions filed on his behalf 

(Deluxe Inn and Peshtal, Inc), and has filed one Form I-485 application 

(concurrently with Deluxe Inn’s petition). Neither of the two Form I-140 petitions 

for employment visas filed on Plaintiff’s behalf has ever been approved, and 

Plaintiff has had no Form I-140 petition pending since July 26, 2010. (See id. at ¶¶ 

9, 13.) 

 On August 5, 2010, ten days after USCIS denied Peshtal, Inc.’s Form I-140 

petition, Plaintiff filed notice with the immigration court that he was renewing his 

previously-denied 2007 Form I-485 application for adjustment of status.5 (Dkt. 5, 

Ex. B.) The immigration judge did not address Plaintiff’s Form I-485 application at 

the April 13, 2011 hearing, however; the judge held that she had no jurisdiction 

over whether to grant Plaintiff an immigrant visa, stating that: 

[I]n this case, there has been a determination that [Plaintiff] is not an 

eligible beneficiary of an intended employment-based immigrant visa 

petition. There is no visa. There is simply a labor certification which 

has not been allowed to transfer from one petitioner to another...6

(Dkt. 5, Ex. A, pp. 5-6.) 

                                                            

5 A Form I-485 application that has been denied can be renewed during removal proceedings by 

applicants who are eligible or become eligible for adjustment of status. See 8 C.F.R. § 1245.2(a)(5)(ii) 

and (a)(2)(i)(A). Typically, a Form I-485 application is filed with USCIS, but if removal proceedings 

are pending, the immigration judge “has exclusive authority to adjudicate any application for 

adjustment of status.” 8 C.F.R. § 1245.2(a)(1)(i). “Petitioning for adjustment of status is a defense in 

removal proceedings.” Luevano v. Holder, 660 F.3d 1207, 1214 (10th Cir. 2011); see also Lacey v. 

Gonzales, 499 F.3d 514, 519 (6th Cir. 2007). 

6 While immigration judges have jurisdiction to determine whether there has been an equivalent 

employment change under INA § 204(j), see Matter of Al Wazzan, 25 I. & N. Dec. 359, 362 (2010), 

they do not have jurisdiction to reinstate a properly-revoked visa petition under 8 U.S.C. § 1155, see

Herrera v. U.S. Citizenship and Immigration Servs., 571 F.3d 881, 888 (9th Cir. 2009) (noting that 

Congress did not intend § 204(j) to constrain the agency’s revocation authority). 

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 Plaintiff appealed the immigration judge’s decision to the Board of 

Immigration Appeals (“BIA”), but the appeal was dismissed on October 19, 2012.7

(Dkt. 5, Ex. C.) Plaintiff then appealed the BIA’s determination to the Sixth Circuit. 

(Dkt. 5, Ex. D.) Before the Sixth Circuit could reach the merits of Plaintiff’s claim, 

however, the Attorney General sought remand of the case to the BIA for 

administrative closure. (Id. at 2.) The motion was granted and the case remanded 

on January 8, 2014. (Id.) Plaintiff’s removal proceedings were administratively 

closed on April 7, 2014 but can be reinstated by either party at any time. (Dkt. 5, 

Ex. E.) 

C. Plaintiff’s Application for Work Authorization (Form I-765) 

 On February 2, 2015, approximately ten months after removal proceedings 

against him had been administratively closed, Plaintiff filed a Form I-765 

application for employment authorization. (Dkt. 5, Ex. F.) A Form I-765 application 

for employment authorization provides a means for non-citizens who have either a 

non-immigrant visa or a pending visa application to apply for temporary 

employment during their adjudication period.8 

                                                            

7 On appeal, Plaintiff’s Counsel did not challenge the immigration judge’s refusal to consider 

Plaintiff’s renewed Form I-485 application. (See Dkt. 5, Ex. C, p. 4.) The only issue Plaintiff’s 

Counsel raised on appeal “is whether the Immigration Judge erred in denying [Plaintiff’s] request for 

an indefinite continuance to await the decision of the District Court (W.D. MI) regarding the review 

of a denial by [USCIS] of [Plaintiff’s] employment-based visa petition (Form I-140).” (Id.) At the 

hearing on this motion, Plaintiff’s Counsel stated that he did not raise the issue of the renewed Form 

I-485 application with the immigration judge during Plaintiff’s removal proceedings either. 

8 Form I-765 is used by foreign nationals in the United States with certain nonimmigrant visas or 

pending immigration applications that allow for temporary employment during their adjudication 

period. See United States Citizenship and Immigration Services, I-765, Application for Employment 

Authorization, http://www.uscis.gov/i-765 (last updated Sept. 21, 2015). An applicant such as 

Plaintiff who has filed for adjustment of status must include with his or her Form I-765 “a copy of 

the receipt notice or other evidence that your Form I-485, Application for Permanent Residence or 

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 Plaintiff included with his application a cover letter asserting that he is “fully 

eligible for employment authorization in the (c)(9) category”9 because: (1) he 

properly renewed his Form I-485 application for adjustment of status with the 

immigration court in Detroit; and (2) this Form I-485 application remains pending 

with the Executive Office of Administrative Review because “there has not been a 

decision issued on [the application]” or a “final decision in his removal proceedings.” 

(Id. at 3-4.) Plaintiff based the renewal of his Form I-485 application on the Deluxe 

Inn Form I-140 petition that USCIS had denied in 2009. (Dkt. 5, Ex. B, p. 3.) 

 Plaintiff’s Form I-765 application was denied without prejudice on March 16, 

2015 by USCIS. (Dkt. 5, Ex. G.) USCIS explained that Plaintiff’s application had to 

be denied pursuant to 8 C.F.R. § 274a.12(c)(9) because his “application for 

adjustment of status [Form I-485] to that of lawful permanent resident has been 

denied and therefore, is no longer pending before USCIS.” (Id.) In other words, 

without a pending or approved Form I-485 application, Plaintiff was not eligible to 

file a Form I-765 application. (See id.) Plaintiff was not barred from filing another 

Form I-765 application “under any category for which [Plaintiff] may qualify.” (Id.) 

 As stated, Plaintiff’s Form I-485 application for adjustment of immigration 

status was denied in 2009 because the Deluxe Inn Form I-140 petition for 

                                                                                                                                                                                               

Adjust Status, is pending.” United States Citizenship and Immigration Services, Form I-765 

Instructions, OMB No. 1615-0040, p. 5 (Feb. 13, 2015) (emphasis added) available at 

http://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf. 

9 The “(c)(9) category” refers to a specific eligibility category established for those applicants filing for 

permission to work based on a pending application for adjustment of status (Form I-485). See 8 

C.F.R. § 274a.12; see also United States Citizenship and Immigration Services, Employment 

Authorization, http://www.uscis.gov/working-united-states/information-employersemployees/employer-information/employment-authorization (last updated Jan. 27, 2015). 

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employment visa upon which it was based had also been denied about two months 

earlier. (Dkt. 1, ¶¶ 9, 10.) Plaintiff argues, however, that Deluxe Inn’s Form I-140 

petition for an employment visa is in reality still valid and he was therefore eligible 

to renew his Form I-485 application for adjustment of status during his removal 

proceedings. (See Dkt. 5, Ex. B, p. 3.) In particular, Plaintiff asserts that because 

this Form I-140 petition was denied “more than 180 days after [Plaintiff’s] 

application for adjustment of status [Form I-485] was filed, the Form I-140 petition 

remains valid with respect to the new job [with Peshtal, Inc.].” (Id.) Plaintiff’s 

argument is that Deluxe Inn’s Form I-140 petition is still valid and because the 

immigration judge has not yet adjudicated or even addressed Plaintiff’s renewed

Form I-485 application, Plaintiff’s renewed application is still pending. (See id.) 

 Plaintiff contends that the denial of the Deluxe Inn Form I-140 petition lacks 

validity because his Form I-485 petition to adjust status was unadjudicated for 

more than 180 days. (See id.) Plaintiff rests this argument on the plain language of 

INA § 204(j), the so-called portability provision,10 which states in relevant part: 

A petition under subsection (a)(1)(D)11 for an individual whose application for 

adjustment of status pursuant to section 245 has been filed and remained 

unadjudicated for 180 days or more shall remain valid with respect to a new 

job if the individual changes jobs or employers if the new job is in the same or 

a similar occupational classification as the job for which the petition was 

filed. 

                                                            

10 This provision allows employment-based green card applicants to “port” their valid Form I-140 

petitions to a new employer under certain circumstances. See INA § 204(j).

11 Re-designated as subsection 204(a)(1)(F). See INA § 204(j); 8 U.S.C. § 1154(j). 

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INA § 204(j); 8 U.S.C. § 1154(j). Pursuant to this statute, if a Form I-485 application 

for adjustment of immigration status is not adjudicated within 180 days, the 

underlying I-140 petition for employment visa remains valid if the immigrant 

changes jobs, so long as the immigrant stays in the same or similar occupational 

classification. Id. 

 Plaintiff maintains that the 2007 Deluxe Inn Form I-140 petition is still valid 

and he can thus base his renewed Form I-485 application on this petition because 

his Form I-485 application was pending for more than 180 days before it was 

denied. Accordingly, Plaintiff asserts that (1) he was eligible to renew the Form I485 application upon which his Form I-765 application for work authorization is 

based; and (2) his renewed Form I-485 application is still pending because it has not 

been adjudicated by the immigration judge. (See Dkt. 5, Ex. B.) For these reasons, 

Plaintiff contends that USCIS wrongly denied his Form I-765 application.12 

 Plaintiff filed a complaint pursuant to 5 U.S.C. § 702 on April 14, 2015 

challenging the denial of his Form I-765 application as arbitrary and capricious. 

(Dkt. 1, ¶ 1.) Plaintiff’s sole request for relief is that the Court “hold unlawful and 

set aside” the denial of his Form I-765 application for work authorization. (Id. at 9.) 

Defendant answered the complaint by filing its motion to dismiss on June 18, 2015. 

(Dkt. 5.) 

                                                            

12 At the hearing, Plaintiff’s Counsel stated that he relied solely on the statutory language in support 

of this argument despite his acknowledgment that no court that had considered the issue had agreed 

with his interpretation of this statute. 

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II. VENUE 

 As of the date of this Order, Plaintiff has a case pending in the United States 

District Court for the Western District of Michigan in which he challenges as 

arbitrary and capricious the July 26, 2010 decision by USCIS denying Peshtal, 

Inc.’s Form I-140 petition filed on Plaintiff’s behalf during removal proceedings. 

Patel v. United States Citizenship and Immigration Services, No. 10-cv-1047, Dkt. 2 

(W.D. Mich.), Dkt. 1. The denial of that Form I-140 petition is not at issue here. As 

a threshold matter, Plaintiff asserts in the complaint filed in this case that the 

Eastern District of Michigan is the appropriate venue for challenging the denial of 

his Form I-765 application because renewed the required Form I-485 application for 

adjustment of status in immigration court in Detroit, Michigan. (Dkt. 1, ¶ 5.) 

 In civil actions not based solely on diversity jurisdiction, venue is controlled 

by 28 U.S.C. § 1391, which provides: 

A civil action wherein jurisdiction is not founded solely on diversity of citizenship 

may, except as otherwise provided by law, be brought only in (1) a judicial 

district where any defendant resides, if all defendants reside in the same State, 

(2) a judicial district in which a substantial part of the events or omissions 

giving rise to the claim occurred, or a substantial part of property that is the 

subject of the action is situated, or (3) a judicial district in which any defendant 

may be found, if there is no district in which the action may otherwise be 

brought. 

28 U.S.C. § 1391(b). Plaintiff maintains that venue is appropriate under 28 U.S.C. § 

1391(b)(2). (See Dkt. 1, ¶ 5.) 

 The test for determining venue under § 1391(b)(2) depends on the location of 

the “events or omissions giving rise to the claim.” 28 U.S.C. § 1391(b)(2). Here, 

although the decision to deny Plaintiff’s Form I-765 application for temporary 

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employment authorization was made by USCIS in Nebraska, the success or failure 

of Plaintiff’s claim rests in significant part on whether he was eligible to renew his 

Form I-485 application for adjustment of status before the immigration court in 

Detroit, Michigan. 

 At the hearing on this motion, both parties agreed that the Eastern District 

of Michigan is the appropriate venue. Because Plaintiff attempted to renew his 

Form I-485 application before an immigration judge in Detroit, and the issue of 

whether that application is still pending is central to whether USCIS’s decision to 

deny Plaintiff’s Form I-765 application was arbitrary and capricious, it is clear that 

“a substantial part of the events or omissions giving rise to the claim occurred” here. 

Venue therefore properly lies in this district. 

III. LEGAL STANDARDS 

Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(1), arguing that this Court lacks subject matter jurisdiction because Plaintiff 

has no constitutional standing; and pursuant to Federal Rule of Civil Procedure 

12(b)(6), asserting that the complaint fails to state a claim upon which relief can be 

granted. (See Dkt. 5.) 

A. Federal Rule of Civil Procedure 12(b)(1) and Standing 

 Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of 

jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1). Because a Plaintiff’s 

claims must be dismissed for lack of subject matter jurisdiction where constitutional 

or prudential standing is lacking, a challenge to a Plaintiff’s constitutional or 

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prudential standing is properly brought as a 12(b)(1) motion. See Loren v. Blue 

Cross & Blue Shield of Michigan, 505 F.3d 598, 607 (6th Cir. 2007) (“If Plaintiffs 

cannot establish constitutional standing, their claims must be dismissed for lack of 

subject matter jurisdiction.”); see also American Fed’n of Gov’t Emps. v. Babbitt, 46 

F. App’x 254, 256 (6th Cir. 2002) (per curiam) (affirming the dismissal of a claim 

under Rule 12(b)(1) for lack of prudential standing). Plaintiff bears the burden of 

proving his standing. Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users 

Ass’n, Inc., 287 F.3d 568 (6th Cir. 2002) (citation omitted). 

To maintain this action, Plaintiff must show both constitutional and 

prudential standing. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 

S.Ct. 1377 (2014). Constitutional standing may be established by proof of three 

elements: 

First, the plaintiff must have suffered an “injury in fact”—an invasion 

of a legally protected interest which is (a) concrete and particularized 

... and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical....’ 

Second, there must be a causal connection between the injury and the 

conduct complained of—the injury has to be “fairly ... trace[able] to the 

challenged action of the defendant, and not ... th[e] result [of] the 

independent action of some third party not before the court.... Third, it 

must be “likely,” as opposed to merely “speculative,” that the injury 

will be “redressed by a favorable decision.” 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (all citations omitted). 

 Prudential standing embodies the “judicially self-imposed limits on the 

exercise of federal jurisdiction” by limiting the types of claim a Plaintiff can bring. 

See United States v. Windsor, 133 S. Ct. 2675 (2013) (other citations omitted). The 

rules of prudential standing exist “to protect the courts from ‘decid[ing] abstract 

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questions of wide public significance even [when] other governmental institutions 

may be more competent to address the questions and even though judicial 

intervention may be unnecessary to protect individual rights.’” Id. at 2686 (quoting 

Warth v. Seldin, 422 U.S. 490, 500 (1975)). 

 To determine the parameters of review, the Court must decide whether the 

standing challenge is a facial or factual attack on jurisdiction. Cartwright v. Garner, 

751 F.3d 752 (6th Cir. 2014). As the Sixth Circuit has explained: 

A facial attack goes to the question of whether the plaintiff has alleged 

a basis for subject matter jurisdiction, and the court takes the 

allegations of the complaint as true for purposes of Rule 12(b)(1) 

analysis. A factual attack challenges the factual existence of subject 

matter jurisdiction. In the case of a factual attack, a court has broad 

discretion with respect to what evidence to consider in deciding 

whether subject matter jurisdiction exists, including evidence outside 

of the pleadings, and has the power to weigh the evidence and 

determine the effect of that evidence on the court’s authority to hear 

the case. Plaintiff bears the burden of establishing that subject matter 

jurisdiction exists. 

Cartwright, 751 F.3d at 760 (citing United States v. Ritchie, 15 F.3d 592, 598 (6th 

Cir. 1994)). 

 Defendant argues that Plaintiff lacks constitutional standing because, as a 

matter of law, he is ineligible for the benefit he seeks and cannot show any 

redressable injury. Defendant’s motion thus presents a factual attack on this 

Court’s subject matter jurisdiction. 

B. Federal Rule of Civil Procedure 12(b)(6) 

 “The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a 

matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in 

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the complaint are taken as true.” Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 

(6th Cir. 2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). Under 

Rule 12(b)(6), the complaint is viewed in the light most favorable to the Plaintiff, 

the allegations in the complaint are accepted as true, and all reasonable inferences 

are drawn in favor of the Plaintiff. See Bassett v. Nat’l Collegiate Athletic Ass’n, 528 

F.3d 426, 430 (6th Cir. 2008). “[A] judge may not grant a Rule 12(b)(6) motion based 

on a disbelief of a complaint’s factual allegations.” Saglioccolo v. Eagle Ins. Co., 112 

F.3d 226, 228–29 (6th Cir. 1997) (quoting Columbia Nat'l Res., Inc. v. Tatum, 58 

F.3d 1101, 1109 (6th Cir. 1995)). 

“However, while liberal, this standard of review does require more than the 

bare assertion of legal conclusions.” Tatum, 58 F.3d at 1109; Tackett v. M & G 

Polymers, USA, L.L.C., 561 F.3d 478, 488 (6th Cir. 2009). “To survive a motion to 

dismiss, [a Plaintiff] must plead enough factual matter that, when taken as true, 

state[s] a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 556 (2007) (internal quotations omitted). Plausibility requires 

showing more than the “sheer possibility of relief but less than a probab[le] 

entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

quotations omitted); Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 

2010). “Where a complaint pleads facts that are ‘merely consistent with’ a 

defendant’s liability, it ‘stops short of the line between possibility and plausibility of 

entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). 

 In ruling on a motion to dismiss, the Court primarily considers the 

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16 

allegations in the complaint; although matters of public record, orders, items 

appearing in the record of the case, and exhibits attached to the complaint may also 

be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001); 

see also Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) 

(finding that documents attached to a motion to dismiss that are referred to in the 

complaint and central to the claim are deemed part of the pleadings). Where “the 

plaintiff fails to attach the written instrument upon which he relies, the defendant 

may introduce the pertinent exhibit,” which is then considered part of the 

pleadings. QQC, Inc. v. Hewlett-Packard Co., 258 F. Supp. 2d 718, 721 (E.D. Mich. 

2003) (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997)). 

“Otherwise, a plaintiff with a legally deficient claim could survive a motion to 

dismiss simply by failing to attach a dispositive document.” Weiner, 108 F.3d at 89. 

IV. DISCUSSION 

 USCIS denied Plaintiff’s Form I-765 application for authorization of 

temporary employment because there was no approved or pending Form I-485 

application for adjustment of immigration status upon which to base its approval. 

(See Dkt. 5, Ex. G.) Plaintiff claims that this decision is erroneous because: (1) he 

was statutorily eligible to renew and did renew his Form I-485 application before 

the immigration court; and (2) his Form I-485 application is still pending because no 

decision has issued on its merits and there is no final decision as to his removal. 

(See Dkt. 1, ¶¶14, 21-24, 30.) USCIS thus had no basis for denying Plaintiff’s Form 

I-765 application. 

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17 

 Defendant, in its motion to dismiss, argues that USCIS’s denial is proper. In 

essence, Defendant maintains that Plaintiff was not eligible to renew his Form I485 application when he attempted to do so because there was no approved or 

pending Form I-140 petition filed on his behalf at that time or since. (Dkt. 5, p. 12.) 

USCIS was therefore correct in stating that the only Form I-485 application for 

Plaintiff that was ever pending before USCIS had been denied. (Id. at 14-15.)

Accordingly, Defendant argues that Plaintiff lacks constitutional standing and has 

failed to state a claim upon which relief can be granted. The Court will address 

these arguments in turn. 

A. Plaintiff has Constitutional and Prudential Standing 

 Defendant maintains the Plaintiff lacks constitutional standing in this 

matter given that Plaintiff “cannot show any redressable injury because he is 

ineligible, as a matter of law, to receive employment authorization.” (Id. at 8-9.) 

Plaintiff is silent on this issue of standing in his response brief, despite bearing the 

burden of establishing subject matter jurisdiction. Cartwright, 751 F.3d at 760 

(citing Ritchie, 15 F.3d at 598). Instead, Plaintiff responds that this Court is barred 

by the Chenery doctrine13 from considering any of Defendant’s arguments and 

regardless Plaintiff properly renewed his Form I-485 application because he had a 

                                                            

13 Under the Chenery doctrine, a reviewing court should not uphold an administrative action based 

on reasons different from those given by the agency. See SEC v. Chenery Corp., 318 U.S. 80, 88–89 

(1943); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see also INS v. Ventura, 537 U.S. 12, 16–17 

(2002); Shkabari v. Gonzales, 427 F.3d 324, 327–28 (6th Cir. 2005); Japarkulova v. Holder, 615 F.3d 

696, 701 (6th Cir. 2010). Even when the agency’s reasoning is inadequate, however, its decision may 

be upheld on the basis of harmless error if the Plaintiff’s prospects are otherwise so weak that there 

is no “reason to believe that ... remand might lead to a different result.” Japarkulova, 615 F.3d at 

701 (quoting Shkabari, 427 F.3d at 328 (quotation marks omitted)). 

4:15-cv-11353-TGB-MJH Doc # 15 Filed 03/01/16 Pg 17 of 30 Pg ID 185
18 

right to do so. (Dkt. 9, pp. 2-6, 12-24.) Plaintiff’s standing and by extension this 

Court’s subject matter jurisdiction, however, are threshold matters that must be 

resolved before the Court may reach the merits of Plaintiff’s claim. 

 Article III or constitutional standing requires that Plaintiff “plead a concrete, 

particularized, and imminent injury in fact caused by the defendant that a 

favorable judicial outcome would likely remedy.” Kroll v. White Lake Ambulance 

Auth., 691 F.3d 809, 813 (6th Cir. 2012.) In other words, Plaintiff must establish 

that he has suffered an injury in fact caused by USCIS’s conduct that a favorable 

decision of this Court can redress. Plaintiff has established the first two 

requirements – his Form I-765 application was denied by USCIS and he thus 

remains subject to removal proceedings. The remaining question, then, is whether 

“it is likely, as opposed to merely speculative, that the injury will be redressed by a 

favorable decision.” Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009). 

 Plaintiff’s constitutional and prudential standing14 was recently addressed by 

the Sixth Circuit in the context of Plaintiff’s Western District of Michigan case. In 

                                                            

14 The parties do not contest Plaintiff’s prudential standing. The prudential standing test “is not 

meant to be especially demanding.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. 

Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Clarke v. Securities Industry Assn., 479 U.S. 388, 399 

(1987)). The APA provides that a “person suffering a legal wrong because of agency action, or 

adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled 

to judicial review thereof.” 5 U.S.C. § 702. If a Plaintiff’s interests are arguably within the “zone of 

interests” to be protected by a statute, the prudential showing requirement is satisfied. Patchak, 132 

S. Ct. at 2210. The requisite showing is not made where a Plaintiff’s interests are “so marginally 

related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be 

assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399. Here, pursuant to 8 

C.F.R. § 274a.12(c): 

An alien within a class of aliens described in this section must apply for work authorization. 

If authorized, such an alien may accept employment subject to any restrictions stated in the 

regulations or cited on the employment authorization document. 

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19 

that case, USCIS filed a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6), 

arguing in relevant part that Plaintiff lacked prudential standing because he was 

asking the Court to review the denial of a petition that his employer had filed on his 

behalf. Patel, No. 10-cv-1047 (W.D. Mich.), Dkt. 7. The District Court granted 

USCIS’s motion without reaching the merits of Plaintiff’s complaint. The court held 

that Plaintiff did not have prudential standing to appeal the agency’s denial of a 

petition that had been filed by his third-party employer and also cast doubt on 

whether Plaintiff had constitutional standing, suggesting that Plaintiff could not 

satisfy the redressability prong. Id., Dkt. 15. 

 Plaintiff appealed, and the Sixth Circuit reversed. Although the Court of 

Appeals focused primarily on Plaintiff’s prudential standing, the panel also resolved 

the question of constitutional standing in Plaintiff’s favor: 

[Plaintiff] “lost a significant opportunity to receive an immigrant visa” when 

the CIS denied Peshtal Inc.’s petition on grounds that Patel says were 

arbitrary. Abboud v. INS, 140 F.3d 843, 847 (9th Cir.1998). That lost 

opportunity is itself a concrete injury—and a favorable decision would redress 

it. Indeed, the record reflects that Peshtal Inc.’s offer of employment to Patel 

remains open, and the government (to its credit) conceded during oral 

argument that CIS could grant Peshtal Inc.’s petition if (as Patel contends) 

the petition’s denial was arbitrary and capricious. Patel thus has 

constitutional standing. 

Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 638 (6th Cir. 2013). 

 Similarly, in this case, Plaintiff “lost a significant opportunity” – here, an 

opportunity to obtain work authorization – when USCIS denied his Form I-765 

application on allegedly arbitrary and capricious grounds. There is no indication in 

                                                                                                                                                                                               

This provision provides for work authorization for aliens within specified classes. See id. An alien 

within one of the specified classes who applies for work authorization is thus within this provision’s 

“zone of interests” and has prudential standing. 

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20 

the record that the employment opportunity offered by Peshtal, Inc. is no longer 

available. This “lost opportunity is itself a concrete injury” that “a favorable decision 

would redress” because, as Defense Counsel conceded during oral argument, USCIS 

could grant Plaintiff’s Form I-765 application were this Court to find that Plaintiff 

could and did properly renew his Form I-485 before the immigration court. 

Accordingly, this Court finds that Plaintiff has standing and will address the merits 

of Plaintiff’s claim. 

B. Plaintiff’s Claim Fails under Rule 12(b)(6) 

 Although Plaintiff has standing, the Court concludes that Plaintiff’s claim 

cannot survive Defendant’s motion to dismiss under Rule 12(b)(6). Plaintiff claims 

that the decision to deny his Form I-765 application was “arbitrary and capricious.” 

Under the APA, the Court must set aside an agency decision if it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 

U.S.C. § 706(2)(A); Simms v. National Highway Traffic Safety Admin., 45 F.3d 999, 

1003 (6th Cir. 1995). Review under the arbitrary and capricious standard is narrow, 

and the reviewing Court may not substitute its judgment for that of the agency even 

if the Court might otherwise disagree with the agency’s decision. Simms, 45 F.3d at 

1003; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376 (1989). 

 In reviewing an agency action under the arbitrary and capricious standard, 

the Court is limited to the administrative record upon which the agency based its 

decision. Camp v. Pitts, 411 U.S. 138, 142 (1973). Agency action may be reversed 

only if the agency relied on factors that Congress has not intended it to consider, 

4:15-cv-11353-TGB-MJH Doc # 15 Filed 03/01/16 Pg 20 of 30 Pg ID 188
21 

failed to consider an important aspect of the problem or offered an explanation for 

its decision that runs counter to the evidence before the agency, or is so implausible 

that it could not be ascribed to a difference based on the agency’s expertise. Simms, 

45 F.3d at 1003; Marsh, 490 U.S. at 378. Thus, under the APA’s arbitrary and 

capricious standard, the Court should overturn USCIS’s decision only if USCIS 

failed to examine the relevant information or to provide an explanation that 

included a rational connection between the facts and the denial of Plaintiff’s Form I765 application. 

 Defendant denied Plaintiff’s Form I-765 application on March 16, 2015. (Dkt. 

5, Ex. G.) In its decision, Defendant relied on 8 C.F.R. § 274a.12(c)(9) in stating that 

a Form I-765 application must be submitted while a “properly filed Form I-485 

application is pending final adjudication.” Id. Defendant explained that Plaintiff’s 

Form I-765 application had to be denied because his “application for adjustment of 

status to that of lawful permanent resident has been denied and therefore, is no 

longer pending before USCIS.” Id. In other words, USCIS denied Plaintiff’s Form I765 application as a matter of law because it was not submitted either while 

Plaintiff’s Form I-485 application was still pending or after it had been approved. 

 Plaintiff argues that this decision is arbitrary and capricious because it does 

not address any of Plaintiff’s arguments made in his application cover letter, and in 

particular Plaintiff’s assertion that the Form I-485 application had been properly 

renewed during his removal proceedings and was still pending when he filed his 

Form I-765 application. (Dkt. 9, pp. 1, 10.) Plaintiff maintains that he was eligible 

4:15-cv-11353-TGB-MJH Doc # 15 Filed 03/01/16 Pg 21 of 30 Pg ID 189
22 

to renew his Form I-485 application on the basis of the Deluxe Inn Form I-140 

petition. (See id. at 17-23.) As Plaintiff’s Counsel acknowledged during oral 

argument, Plaintiff cannot seek an I-485 adjustment of status without a pending, 

approved, or otherwise valid Form I-140 petition for an employment visa; and 

without a pending or approved adjustment of status application, Plaintiff is 

ineligible to file a Form I-765 application. The survival of Plaintiff’s claim thus 

depends on whether the Deluxe Inn Form I-140 petition was still “valid” pursuant 

to the portability provision of INA § 204(j) when Plaintiff renewed his Form I-485 

application during his removal proceedings. 

 This statute provides that a Form I-140 petition remains “valid” where an 

applicant’s Form I-485 “has been filed and remain[s] unadjudicated for 180 days or 

more” with respect to “a new job if the individual changes jobs or employers if the 

new job is in the same or a similar occupational classification as the job for which 

the petition was filed.” INA § 204(j). As the Sixth Circuit has explained, the 

portability provision of INA § 204(j) is “premised on Congress’s purpose of providing 

‘job flexibility for long delayed applicants’” and thus “allows for the portability of the 

alien’s application across different jobs”. Shewchun v. Holder, 658 F.3d 557, 566 

(6th Cir. 2011). This section “broadly applies to an ‘individual whose application for 

adjustment of status ... has been filed and remained unadjudicated for 180 days or 

more’ and who has an approved visa petition.” Perez-Vargas v. Gonzales, 478 F.3d 

191, 195 (4th Cir. 2007). 

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23 

 In this case, the relevant chain of petitions and applications began on August 

16, 2007 when Deluxe Inn filed a Form I-140 petition on Plaintiff’s behalf. (Dkt 1, ¶ 

7.) That same day, Plaintiff concurrently filed his Form I-485 application with the 

Deluxe Inn Form I-140 petition. (Id. at ¶ 8.) On April 30, 2009, approximately 623 

days after Plaintiff filed his Form I-485 application, USCIS denied Deluxe Inn’s 

Form I-140 petition. (Id. at ¶ 9.) Plaintiff’s Form I-485 application was denied on 

June 10, 2009, approximately 665 days after it was filed. (Id. at ¶ 10.) According to 

Plaintiff, Deluxe Inn’s Form I-140 petition is still valid pursuant to the plain 

language of INA § 204(j), even though it was denied in 2009, because his Form I-485 

petition was not adjudicated within 180 days of being filed. (See Dkt. 5, Ex. B, p. 3.) 

 As Plaintiff’s Counsel conceded during oral argument, no court has yet 

adopted the interpretation of the portability provision that Plaintiff urges. However 

in a published “precedent decision,” Matter of Al Wazzan, 25 I. & N. Dec. 359 (2010), 

the Administrative Appeals Office (“AAO”) first addressed and roundly rejected the 

argument Plaintiff implicitly makes here.15 Although neither party cited this 

                                                            

15 Under authority delegated by the Secretary of Homeland Security, the Administrative Appeals 

Office (“AAO”) is an arm of USCIS that exercises appellate jurisdiction over approximately 50 

different categories of immigration benefits decisions. USCIS, The Administrative Appeals Office, 

https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-officeaao/administrative-appeals-office-aao (last updated Oct. 7, 2015). “Precedent decisions” are 

administrative decisions by the AAO that are selected by the Secretary of the Department of 

Homeland Security for publication in bound volumes entitled “Administrative Decisions Under 

Immigration and Nationality Laws of the United States.” USCIS, Precedent Decisions, 

https://www.uscis.gov/laws/precedent-decisions (last updated Sept. 9, 2013). As such, they are 

binding on the agency. See 8 C.F.R. § 103.3(c). Where, as here, an agency’s statutory interpretation is 

communicated via formal adjudication that has the force of law, the interpretation is entitled to 

substantial deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 843–44 (1984). See Navistar, Inc. v. Forester, 767 F.3d 638, 644 (6th Cir. 2014) (“If the agency’s 

interpretation is contained in a regulation or other form intended to have the force of law, it is 

entitled to substantial deference under Chevron.”); see also Patel v. Johnson, 2 F. Supp. 3d 108, 120 

(D. Mass. 2014) (finding that the AAO’s interpretation of § 204(j) in Al Wazzan merits Chevron

4:15-cv-11353-TGB-MJH Doc # 15 Filed 03/01/16 Pg 23 of 30 Pg ID 191
24 

decision in their briefs, it merits a detailed recounting here as instructive and 

persuasive authority on this question.16

 In Al Wazzan, a Kuwaiti citizen appealed the denial of his Form I-485 

application. Id. at 359-60. A Form I-140 petition was filed on the applicant’s behalf 

on August 26, 2002, and the applicant filed a Form I-485 application on September 

18, 2002 under the concurrent filing process that had been implemented in July 

2002. Id. at 360. USCIS denied the Form I-140 petition on August 3, 2003, and the 

Form I-485 application on September 29, 2003 after it had been pending for 376 

days. Id. at 361. The applicant argued that pursuant to INA § 204(j), his Form I-485 

application could not be denied because it had been pending for more than 180 days. 

Id. at 360. 

 The AAO construed INA § 204(j) and determined “its effect on an application 

for adjustment of status (Form I-485) if a visa petition (Form I-140) is denied after 

the application is pending for 180 days.” Id. at 362. The AAO held that for the Form 

I-140 petition to be considered “valid,” in harmony with related provisions and with 

the INA as a whole, it must have been filed for an applicant who is entitled to the 

requested classification and the petition must have been approved by USCIS. Id. at 

367. Simply filing the petition with USCIS or the mere passage of 180 days does not 

                                                                                                                                                                                               

deference). Where “the agency’s interpretation of the statute is contained in a more informal medium 

not intended to have the force of law ... it is afforded a lesser level of deference known as Skidmore

[v. Swift & Co., 323 U.S. 134, 140, (1944)] deference.” Id. at 645. 

16 Plaintiff’s Counsel did not cite, nor did this Court discover, any federal court case modifying or 

overturning this decision. 

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25 

make an unadjudicated immigrant visa petition “valid” pursuant to INA § 204(j). 

Id.17

 In reaching its decision, the AAO applied the familiar cannons of statutory 

construction.18 First, the AAO examined the legislative history of the statute. The 

AAO determined that the legislative history could not provide much guidance 

because, at the time the statute was enacted in 2000, a Form I-140 and a Form I485 could not be filed concurrently – an approved Form I-140 petition was required 

                                                            

17 The Al Wazzan decision was incorporated into Chapter 20.2(d) of the USCIS Adjudicator’s Field 

Manual (“AFM”) on May 30, 2008. See Section II.5 of the May 8, 2008 memorandum entitled 

Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions 

and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by AC21 (AD08-06), 

available at 

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives

%201998-2008/2008/ac21_30may08.pdf. Chapter 20.2(d) of the AFM was updated to read as follows: 

On October 18, 2005, USCIS designated Matter of Al Wazzan, A95 253 422 (Jan. 12, 

2005) as a USCIS Adopted Decision. This AAO decision established that a petition 

that is deniable (i.e. not approvable) will not be considered “valid” for purposes of 

INA 204(j). An unadjudicated Form I-140 petition is not made “valid” merely through 

the act of filing the petition with USCIS or through the passage of 180 days. A 

denied From I-140 petition is also not considered valid regardless of 

whether the I-140 petition is denied 180 days or more after the filing of the 

adjustment of status application and regardless of when a request to invoke 

the portability provision of INA § 204(j) is made. In order to be considered valid, 

an I-140 petition must have been filed on behalf of an alien who was entitled to the 

employment-based classification at the time that the petition was filed, and 

therefore must be approved prior to a favorable determination of a 

portability request made under INA § 204(j). 

Id. at 9 (emphasis added). 

18 With respect to the “canons of statutory instruction,” the AAO stated as follows: 

Statutory interpretation begins with the language of the statute itself. Pennsylvania 

Department of Public Welfare v. Davenport, 495 U.S. 552 (1990). We are expected to give the 

words used in the statute their ordinary meaning. Chevron, U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837 (1984). Furthermore, we are to construe the language in question 

in harmony with the thrust of related provisions and with the statute as a whole. K Mart 

Corp. v. Cartier Inc., 486 U.S. 281, 291 (1988) (holding that construction of language which 

takes into account the design of the statute as a whole is preferred); see also COIT 

Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter 

of W-F-, 21 I & N Dec. 503 (BIA 1996). 

Al Wazzan, 25 I. & N. Dec. at 365. 

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26 

before a Form I-485 application could be filed. Id. at 364. As previously stated, the 

concurrent filing process that both the Al Wazzan applicant and Plaintiff utilized 

was implemented in July 2002. Id. at 360. 

 The AAO then focused its analysis on the operative statutory language also 

relevant here: “A petition ... shall remain valid with respect to a new job if the 

individual changes jobs or employers ....” INA § 204(j). Because the term “valid” was 

not defined by the statute, nor was any guidance provided in the Congressional 

Record, the AAO turned to the ordinary meaning. Id. at 364-66. 

 The AAO ultimately rejected the argument that Congress intended the term 

“valid” in INA § 204(j) to include “denied or unadjudicated petitions” given that “an 

approved petition was required to file an application for adjustment of status” at the 

time Congress enacted the statute in question. Id. at 366 (emphasis added). As the 

AAO observed, when Congress enacted the statute, “no alien could assert that a 

denied or unadjudicated immigrant visa petition ‘shall remain valid’ through the 

passage of 180 days” because the Form I-485 “could not be filed until after the 

petition was approved by USCIS.” Id. at 365. Congress is presumed to be aware of 

such regulations when it passes a law. See Goodyear Atomic Corp. v. Miller, 486 

U.S. 174, 184-85 (1988). 

 Finally, the AAO examined the portability provision in light of “the overall 

design of the nation’s immigration laws.” Al Wazzan, 25 I. & N. Dec. at 366. The 

AAO noted that INA § 204(b) requires that USCIS approve a Form I-140 petition 

“only after investigating the facts in each case, determining that the facts stated in 

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27 

the petition are true and that the alien is eligible for the requested classification, 

and consulting the Secretary of Labor when required.”19 Id. Accordingly, allowing 

an applicant’s Form I-140 petition to be made valid “merely through the act of filing 

the petition with USCIS or through the passage of 180 days” would “subvert the 

statutory scheme of the U.S. immigration laws.” Id. at 367. 

 This Court finds the analysis and reasoning of the AAO in Al Wazzan to be 

correct. To interpret the statute otherwise “would severely undermine the 

immigration laws of the United States” because a Form I-140 could be deemed 

“valid” when the petition “was never approved or, even if it was approved, if it was 

filed on behalf of an alien who was never ‘entitled’ to the requested visa 

classification.” Id. It is “irrational” to believe that “Congress intended to throw out 

the entire statutorily mandated scheme regulating immigrant visas whenever that 

scheme requires more than 180 days to effectuate” because this creates a situation 

where ineligible applicants could gain a “valid” visa by filing “frivolous visa 

petitions and adjustment applications [...] in the hopes that the application might 

remain unadjudicated for 180 days.” Id. Plaintiff’s proposed interpretation would 

                                                            

19 Section 204(b) states that: 

After an investigation of the facts in each case, and after consultation with the Secretary of 

Labor with respect to petitions to accord a status under section 203(b)(2) [8 U.S.C 1153(b)(2)] 

or section 203(b)(3) of this Act [8 U.S.C 1153(b)(3)], the Attorney General shall, if he 

determines that the facts stated in the petition are true and that the alien in behalf of whom 

the petition is made is an immediate relative specified in section 201(b) of this Act [8 U.S.C 

1151(b)] or is eligible for preference under subsection (a) or (b) of section 203 of this Act [8 

U.S.C 1153], approve the petition and forward one copy thereof to the Department of State. 

The Secretary of State shall then authorize the consular officer concerned to grant the 

preference status. 

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28 

lead to clearly unintended practical consequences inconsistent with the purposes of 

the statute. 

 Although the Sixth Circuit has not addressed this issue, the AAO’s 

conclusions with respect to INA § 204(j) have been upheld and applied by other 

federal courts.20 See, e.g., Rajasekaran v. Hazuda, No. 14-3623, 2016 WL 362127, at 

*3 (8th Cir. Jan. 29, 2016) (Plaintiff was not statutorily eligible to adjust status 

because he could not port his I-140 since the I-140 was not valid to begin with); 

Patel v. Johnson, 2 F. Supp. 3d 108, 122 (D. Mass. 2014) (affording the AAO’s 

interpretation great deference and finding that applicant could not port a Form I140 petition terminated in 2008 to a new job in 2009); Ravulapalli v. Napolitano, 

773 F. Supp. 2d 41, 53 (D.D.C. 2011) (“the Court finds that the Portability Provision 

preserves the validity of only those I–140 petitions that have been approved”); 

George v. Napolitano, 693 F. Supp. 2d 125, 131 (D.D.C. 2010) (“the Portability 

Provision requires an approved I–140, not simply a pending I–140 Petition”); 

 Like those federal courts, this Court finds no basis to disagree with the AAO’s 

cogent analysis and nothing in the arguments of Plaintiff’s Counsel suggests any 

reason to do so. In short, Section 204(j) simply permits the applicant to change jobs 

and remain eligible to adjust his or her status without losing the benefit of a 

                                                            

20 In her dissenting opinion to this Circuit’s decision in Patel v. U.S. Citizenship & Immigration 

Servs., 732 F.3d 633 (6th Cir. 2013), the Honorable Martha Craig Daughtrey addressed portability 

pursuant to INA 204(j). 732 F.3d at 643-45. Although portability is not at issue here, Judge 

Daughtrey observed that “portability applies only to approved I–140 petitions” and that “Deluxe 

Inn’s [labor certificate] became invalid when the USCIS denied the I–140 application submitted by 

Deluxe Inn on the basis of inability to pay the proffered salary” therefore “Deluxe Inn’s [labor 

certificate] could not be used to support Comfort Inn’s I–140 application because it was no longer 

valid.” Id. at 643-44. 

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29 

previously-approved Form I-140 petition so long as the new job is in the same 

occupational category as the old job. 

 Here, there is no dispute that both of the Form I-140 petitions filed on 

Plaintiff’s behalf were denied by USCIS – the Deluxe Inn Form I-140 petition was 

not “valid” in 2010 because it was denied in 2009. Because the Deluxe Inn Form I140 petition is no longer valid, Plaintiff cannot base the renewal of his Form I-485 

application on that petition and consequently, he was not statutorily eligible to 

renew his Form I-485 application or file a Form I-765 application when he did so. 

Thus, while Plaintiff’s renewal of his Form I-485 application before the immigration 

judge may have been procedurally allowed, the I-485 application cannot be 

considered valid or pending without a valid Form I-140 petition to support it. 

Accordingly, USCIS’s decision to deny Plaintiff’s Form I-765 application because 

Plaintiff’s “application for adjustment of status to that of lawful permanent resident 

has been denied and therefore, is no longer pending before USCIS” is patently 

correct.21 

                                                            

21 Plaintiff’s brief in response includes a lengthy argument that the USCIS denial of his Form I-765 

application violates the Chenery doctrine because the USCIS did not address in its denial decision all 

of Plaintiff’s arguments regarding the portability and continued validity of the Deluxe Inn Form I140 petition. (Dkt. 9, pp. 8-19.) USCIS explained in its decision that there was no approved or 

pending Form I-485 application and therefore no possibility of approving a Form I-765 application. 

(See Dkt. 5, Ex. G.) USCIS, although the opinion is brief, thus established a rational connection 

between the lack of any supporting Form I-485 application and the denial of Plaintiff’s Form I-765 

application. (See id.) Because the Court finds that Plaintiff was not statutorily eligible to renew his 

Form I-485 application and therefore not eligible to file his Form I-765 application, USCIS did not 

violate the Chenery doctrine for failing to address all of Plaintiff’s arguments regarding his eligibility 

for employment authorization. 

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30 

V. CONCLUSION 

 Accordingly, Defendant’s motion to dismiss (Dkt. 5.) is GRANTED and this 

case is DISMISSED WITH PREJUDICE for failure to state a claim upon which 

relief may be granted. 

SO ORDERED. 

Dated: March 1, 2016 

 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on March 1, 

2016, using the CM/ECF system, which will send notification to all parties. 

 s/A. Chubb 

Case Manager 

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