United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20597

____________

Hung Huu Quoc Nguyen, 

Plaintiff—Appellant, 

versus

Ur M. Jaddou, Director of U.S. Citizenship and Immigration Services; 

Mary Elizabeth Brennan Seng, Acting Director of U.S. Citizenship 

and Immigration Services Texas Service Center, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:23-CV-2106

______________________________

Before Smith, Engelhardt, and Ramirez, Circuit Judges.

Irma Carrillo Ramirez, Circuit Judge: 

Hung Huu Quoc Nguyen (Nguyen) challenges the United States 

Citizenship and Immigration Services’ (USCIS) revocation of its approval 

of his EB-3 visa petition. We AFFIRM the district court’s dismissal for lack 

of subject-matter jurisdiction.

United States Court of Appeals

Fifth Circuit

FILED

October 3, 2024

Lyle W. Cayce

Clerk

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I

A 

An EB-3 visa permits noncitizens (1) who perform “unskilled labor,”1

and (2) have a full-time job offer, to work in the United States. EmploymentBased Immigration: Third Preference EB-3, U.S. Citizenship & Immigr. 

Servs., https://perma.cc/MVX7-S7Y2. If a noncitizen worker is issued an 

EB-3 visa, he is eligible for adjustment of status to permanent resident under 

8 U.S.C. § 1255(a). 

There are generally three steps for adjustment of status. First, a

prospective employer must apply for a labor certification2 with the 

Department of Labor. 8 U.S.C. § 1182(a)(5)(A)(i). If the Department of 

Labor issues the labor certification, the employer can petition USCIS for an 

EB-3 visa on behalf of the noncitizen worker by filing a Form I-140, Petition 

for Immigrant Worker (I-140 petition). See 8 C.F.R. § 204.5(a), (c), (l)(1). 

The petition must include evidence that the employer can pay the noncitizen 

worker’s proffered wage from the priority date3 until he obtains lawful 

permanent residence. Id. § 204.5(g)(2). Finally, the noncitizen worker may 

apply for adjustment to permanent resident status by filing an Application for

Permanent Residence (Form I-485). Id. § 245.2(a)(3)(ii). USCIS cannot 

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1 “Unskilled labor” is labor that requires less than two years of training or 

experience. 8 C.F.R. § 204.5(l)(2).

2A labor certification tells USCIS that “there are not sufficient U.S. workers able, 

willing, qualified and available” to do the job, and that the “employment of the foreign 

worker will not adversely affect the wages and working conditions of similarly employed 

U.S. workers.” U.S. Dep’t of Labor, Permanent Labor Certification, Emp. and 

Training Admin., https://perma.cc/49AU-LH4W. 

3 “The priority date of any petition . . . accompanied by an individual labor 

certification . . . shall be the date the labor certification application was accepted for 

processing by any office of the Department of Labor.” Id. § 204.5(d).

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approve a Form I-485 without first approving the underlying I-140 petition, 

but a Form I-485 may be filed before the underlying petition is approved. 

Id. § 245.2(a)(2)(i).4 If USCIS approves the Form I-485, the noncitizen

worker becomes a lawful permanent resident. 8 U.S.C. § 1255(a).

B

On July 30, 2018, after acquiring a labor certification, Muy Pizza 

Tejas, LLC (Muy Pizza) filed an I-140 petition on Nguyen’s behalf. Nguyen 

and his family, who were lawfully residing in the United States, applied for 

adjustment to permanent residentstatus on October 16, 2018. Over two years 

later, and while their applications were still pending, Muy Pizza sold the 

restaurant that employed Nguyen to Ayvaz Pizza, and Nguyen continued his 

employment under the new ownership.

USCIS subsequently approved Nguyen’s I-140 petition. But on 

October 13, 2021, USCIS issued a Notice of Intent to Revoke the approval.

The notice explained that an article reporting that MUY Companies sold 

several of its locations raised questions about Muy Pizza’s intentions to 

employ Nguyen. It also stated that Muy Pizza did not establish its ability to 

pay Nguyen’s proffered wages for two reasons. First, although there was 

sufficient evidence of Muy Pizza’s net income for 2017 and 2020, the 

evidence was insufficient for 2018, 2019, and 2021. Second, the record was 

devoid of information about the “hundreds of other [I-140 petitions]” Muy 

Pizza had filed on behalf of other workers since Nguyen’s priority date.

On January 7, 2022, counsel for Ayvaz Pizza and Nguyen responded 

to the notice; Muy Pizza did not. The response included Muy Pizza’s 

financial audited statements for 2018 and 2019, and both pizza companies’ 

_____________________

4 The forms may also be filed concurrently. See id. § 245.2(a)(2)(i)(C).

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unaudited profit and loss statements for 2021. It confirmed Ayvaz Pizza’s

purchase of Muy Pizza, declared that Ayvaz Pizza was Muy Pizza’s

successor-in-interest,5 and asserted that Nguyen’s I-140 petition was eligible 

for job portability under 8 U.S.C. § 1154(j). Under that portability provision, 

an I-140 petition for a beneficiary whose application for an adjustment of 

status has remained unadjudicated for 180 days or more remains valid if the 

beneficiary changes jobs or employers. 8 U.S.C. § 1154(j). Nguyen officially

requested job portability soon after, and USCIS approved the request. 

On March 22, 2022, USCIS revoked its approval of Nguyen’s I-140

petition, concluding that it had been approved in error. The decision 

explained that Muy Pizza had failed to prove that it could pay Nguyen’s 

proffered wage for 2020 and 2021, or to submit sufficient information 

regarding the other I-140 petitions it had filed. 

On April 11, 2022, USCIS denied Nguyen’s application for an 

adjustment of status and request for job portability based on the revocation 

of the underlying I-140 petition. Ayvaz Pizza filed a motion to reopen and 

reconsider the denial, but USCIS upheld the revocation. It explained that a 

motion to reopen must be filed by an “affected party”—defined by USCIS

as “the person or entity with legal standing in a proceeding,”—and that 

Ayvaz Pizza was not an affected party because it had not filed the I-140

petition on behalf of Nguyen. On December 5, 2022, Nguyen filed a motion 

to reopen and reconsider the revocation in his own name, which USCIS

denied. 

_____________________

5 A successor-in-interest assumes its predecessor-company’s immigration benefits 

requests “[w]hen [the] company is bought, merged, changes corporate structure, or 

significantly changes owners.” 6 U.S. Citizenship & Immigr. Servs., Policy 

Manual, pt. E, ch. 3 (2024), https://perma.cc/HAZ5-6U8Z. 

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C

Nguyen and his family sued Ur M. Jaddou, in her official capacity as 

Director of USCIS, and Mary Elizabeth Brennan Seng, in her official 

capacity as Acting Director of USCIS Texas Service Center (collectively, 

USCIS), alleging that the agency’s revocation and denials were arbitrary 

and capricious under the Administrative Procedure Act.

USCIS moved to dismiss for lack of subject matter jurisdiction, or 

alternatively, for failure to state a claim. The district court granted the motion 

to dismiss, holding it lacked jurisdiction over the plaintiffs’ claims because 

they amounted to a challenge of an unreviewable discretionary decision. 

Nguyen appeals the dismissal.6

II

We review a district court’s dismissal for lack of subject matter 

jurisdiction de novo. Elldakli v. Garland, 64 F.4th 666, 669 (5th Cir. 2023).

III

The Immigration and Nationality Act (INA) precludes judicial 

review of the discretionary decisions made by the Attorney General or the 

Secretary of Homeland Security (Secretary), and “any judgment regarding 

the granting of relief under . . . [§] 1255 of this title.” 8 U.S.C. 

§ 1252(a)(2)(B)(i).

7 Whether to revoke the approval of an I-140 petition is a 

decision left to the discretion of the Secretary. Id. § 1155. She may exercise 

this discretion at any time during the immigrant visa process “for what [s]he 

deems to be good and sufficient cause.” Id. Similarly, whether to adjust an 

alien’s legal status “to that of an alien lawfully admitted for permanent 

_____________________

6 Only Nguyen is a party to this appeal.

7 This is subject to some exceptions not relevant to this appeal. See id.

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residence” is a decision left to the discretion of the Attorney General. 

Id. § 1255(a).

A

Nguyen contendsthat the district court has subject matter jurisdiction 

over his suit on two grounds. He first argues that his I-140 petition met the 

portability provision requirements under 8 U.S.C. § 1154(j), which divested 

the Secretary of her discretion to revoke his I–140 petition because 

section 1154(j)’s “shall remain valid” language is incompatible with 

section 1155’s broad “good and sufficient cause” standard. The district court 

held that the portability provision did not apply to Nguyen’s I-140 petition at 

the time its approval was revoked. We agree.

The portability provision was enacted to provide job flexibility to 

adjustment-of-status-applicants experiencing long delays. 8 U.S.C. § 1154(j). 

It reads,

[An I-140] petition . . . for an individual whose application for 

adjustment of status . . . 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.

Id. (emphasis added).

“[T]he statutory text [of 8 U.S.C. § 1154(j)] creates two 

requirements: that the application for adjustment of status (1) ‘has been 

filed’ and that it (2) has ‘remained unadjudicated for 180 days or more.’” 

Khalil v. Hazuda, 833 F.3d 463, 468 (5th Cir. 2016). Under 8 C.F.R. 

§ 245.25(a)(2)(iii), to qualify for job portability, “approval of the qualifying 

petition [cannot have] been revoked.” As USCIS argues, an I-140 petition 

must first be valid in order to remain valid. See Herrera v. U.S. Citizenship & 

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Immgr. Servs., 571 F.3d 881, 887 (9th Cir. 2009) (holding that the portability 

provision did not affect the Secretary’s revocation authority because USCIS

determined that the petition at issue was approved in error, and “in order for 

a petition to ‘remain’ valid, it must have been valid from the start”); see also

7 U.S. Citizenship & Immigr. Servs., Policy Manual, pt. E, 

ch. 5 (2024), https://perma.cc/747D-5DNA (“An unadjudicated petition is 

not valid merely because the petition was filed with USCIS or through the 

passage of 180 days. . . . If at any time USCIS revokes approval of the 

petition, the applicant is not eligible for the job flexibility provisions of 

Section 106(c) of AC21.”).

Here, Nguyen’s application for an adjustment of status was filed on 

October 16, 2018, and remained unadjudicated until it was denied on April 

11, 2022, over 180 days later. Nevertheless, USCIS informed Nguyen that 

his I-140 petition had been approved in error because Muy Pizza had not 

established its ability to pay his proffered wage; accordingly, the petition was

invalid from the start, and the portability provision did not apply to Nguyen’s 

petition when it was revoked.

8 This case therefore “fall[s] within the ambit 

of th[e] jurisdiction-stripping provision of the INA and . . . [is] not subject to 

judicial review.” Khalil, 833 F.3d at 467.

9

_____________________

8 Notably, the Notice of Intent to Revoke acknowledged that Muy Pizza established 

its ability to pay Nguyen’s proffered wages for 2020, but USCIS revoked its approval 

because Muy Pizza failed to prove that it could pay Nguyen’s proffered wage for 2020 and 

2021. Nevertheless, the notice also requested information regarding the I-140 petitions 

Muy Pizza had filed on behalf of other beneficiaries, and USCIS’s revocation decision 

indicates that the responsive information submitted was insufficient.

9 Nguyen asks this court to answer the question left open in Khalil v. Hazuda, 833 

F.3d 463, 469–70 (5th Cir. 2016): “[W]hether [the portability provision], when it applies, 

creates an exception to this circuit’s general rule that USCIS’s petition revocation 

decisions are discretionary decisions not subject to judicial review.” In Khalil, USCIS

denied the plaintiff’s adjustment of status application and subsequently revoked its 

approval of his I-140 petition. 833 F.3d at 465–66. Like Nguyen, the plaintiff argued that

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B 

Nguyen proposes an alternate basis for subject matter jurisdiction. He 

argues that the district court has jurisdiction to review several procedural 

errors made by USCIS citing Kurapati v. U.S. Bureau of Citizenship & 

Immigr. Servs., 775 F.3d 1255 (11th Cir. 2014). In Kurapati, the Eleventh 

Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) does not bar judicial review “of 

the conduct of . . . administrative proceedings,” noting that “[e]ven when a 

decision is committed to agency discretion, a court may consider allegations 

that an agency failed to follow its own binding regulations.” 775 F.3d at 1262

(citations omitted). 

Nguyen first alleges that USCIS erred when it failed to make a 

successor-in-interest determination regarding Ayvaz Pizza. Contrary to 

USCIS’s claim that Ayvaz Pizza was required to submit an amended I-140 

petition to trigger a successor-in-interest determination, Nguyen argues that 

a new or amended petition is not required when a beneficiary’s I-140 petition

is eligible for job portability.

USCIS’s Policy Manual dictates that in order to assume a 

predecessor’s immigration benefits requests, a prospective successor-ininterest must file a new or amended I-140 petition and provide evidence 

establishing itself as a genuine successor-in-interest. See 6 U.S. 

Citizenship & Immigr. Servs., Policy Manual, pt. E, ch. 3 

(2024), https://perma.cc/HAZ5-6U8Z (explaining that “[i]f such a

_____________________

the portability provision stripped USCIS of its authority to revoke its approval. Id. at 467. 

The panel held that the plaintiff “[could not] benefit from the application of the portability 

provision” and expressly declined to address the broader legal question presented. Id. at 

468, 469–70. As in Khalil, Nguyen cannot “benefit” from the portability provision’s 

protections. Id. at 468. Accordingly, we need not answer the question left open in Khalil, 

i.e., whether the portability provision carves out an exception to the prohibition of judicial 

review of USCIS’s discretionary decisions.

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successor company acquires all or some of a business from a predecessor 

company, it may file . . . . a new or amended petition if the predecessor has 

already filed a petition” and “must file such petitions within the validity 

period of the permanent labor certification”). Indeed, “[i]n cases where a 

beneficiary is eligible for portability [under 8 U.S.C. § 1154(j)], a successor 

entity need not file a new petition on the beneficiary’s behalf, provided that 

all the [portability provision’s] requirements have been met.” Id. As 

established, Nguyen’s I-140 petition did not qualify for job portability. Ayvaz 

Pizza was therefore required to file a new or amended I-140 petition on his 

behalf, and it did not. Nguyen has not established that USCIS’s failure to 

make a successor-in-interest determination was erroneous.

Nguyen also argues that USCIS erred when it required Muy Pizza to 

prove that it could pay Nguyen’s proffered wage past July 30, 2018, because 

when a petition qualifies for job portability, USCIS must determine 

“whether the petitioner established its ability to pay the proffered wage from 

the priority date until the filing date of the petition.” 6 U.S. Citizenship 

& Immigr. Servs., Policy Manual, pt. E, ch. 4 (2024), 

https://perma.cc/26JE-M9E4. Here, too, Nguyen’s argument rests on the 

premise that his petition qualified for job portability, but it did not. 

Even if we adopted the holding in Kurapati, we agree with the district 

court that the record does not reveal a specific procedural error made by 

USCIS. And Nguyen does not identify a binding regulation that USCIS

declined to follow.

* * * 

Because the district court did not have subject matter jurisdiction over 

Nguyen’s claims under 8 U.S.C. § 1252(a)(2)(B), its judgment is

AFFIRMED. 

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