MANION, Circuit Judge. Srinivasa Musunuru is a native and citizen of India who desires to become a lawful permanent resident through the Immigration and Nationality Actâ€™s employment-based immigrant visa process. At one point in time, he was the beneficiary of two visa petitions, the first filed by his previous employer, Vision Systems Group (â€œVSGâ€), and the second filed by his current employer, Crescent Solutions. Those visa petitions were assigned priority dates, which placed him in a long line of those eligible to receive a limited number of immigrant visas. The priority date assigned to VSGâ€™s visa petition allowed him to file an application with the United States Custom and Immigration Service (â€œUSCISâ€) for adjustment of status to permanent resident. But when an immigrant visa finally became available to Musunuru, USCIS did not adjust his status. Instead, it revoked VSGâ€™s visa petition. This invalidated the earlier priority date assigned to the petition, and left Musunuru with the later priority date assigned to Crescent Solutionsâ€™ petition. Because the priority date assigned to Crescent Solutionsâ€™ petition was much later, Musunuru must now wait several more years before USCIS can adjudicate his application allowing him possibly to become a permanent resident.
USCIS revoked VSGâ€™s petition because the owners pleaded guilty to the unlawful hiring of an alien and mail fraud, both in connection with an unrelated employee. Based on the ownersâ€™ convictions, USCIS presumed that all the visa petitions filed by VSG were fraudulent. Musunuru could have shown that his employment was not fraudulent, but USCIS did not give him the opportunity. USCIS sent notice of its intent to revoke the petition to VSG only, even though VSG had gone out of business and Musunuru had long since changed employers to Crescent Solutions.
USCIS did so because VSG was the petitioner and the regulations provided notice to only the petitioner. This left Musunuru unaware of the revocation. When he finally discovered what had happened, he requested that USCIS reconsider its revocation of VSGâ€™s petition. USCIS denied the request because Musunuru was the petitionâ€™s beneficiary, not the petitioner, and therefore lacked standing to administratively challenge the revocation.1 Musunuru filed a petition for judicial review under the Administrative Procedures Act. He claimed that the statutory portability provision that kept VSGâ€™s visa petition valid while he â€œportedâ€ from VSG to Crescent Solutions also gave him a procedural right to pre-revocation notice and an opportunity to respond, as well as a right to administratively challenge the revocation.
He also claimed that USCISâ€™s application of the regulations denied him his right to procedural due process as protected by the Fifth Amendment. The district court granted USCISâ€™s motion to dismiss. It found that the regulations did not entitle Musunuru to pre-revocation notice or an opportunity to respond, and that Musunuru did not have standing to administratively challenge the revocation. The district court also found that Musunuruâ€™s Fifth Amendment rights were not violated. We reverse. We hold that USCIS applied the notice and challenge regulations in a manner inconsistent with the statutory portability provision that allowed Musunuru to change employers. We do not hold, however, that Musunuru was entitled to notice and an opportunity to respond, or to administratively challenge the revocation of VSGâ€™s visa petition.
Instead, we hold that Musunuruâ€™s current employer, Crescent Solutions, was entitled to these things. We so hold because Congress intends for a nonimmigrant workerâ€™s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congressâ€™s intention, the new employer must be treated as the de facto petitioner for the old employerâ€™s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.