Firstland International Holding No Longer Available For Preventing DHS From Revoking Already Approved Immigrant Petitions Of Aliens In The US
On August 20, 2004, our firm posted an important article about the nightmare situation in which
an alien with an approved immigrant visa appears for his/her final adjustment of status interview
only to be told that the immigrant visa is being recommended for revocation. See Mehta,
Cyrus D., Federal Court Prevents
DHS from Revoking an Approved Immigrant Visa Petition When Beneficiary Is Already in the
U.S. (Aug. 20, 2004). The article focused on § 205 of the Immigration and Nationality Act
("INA"), which at the time the article was written, authorized the Secretary of the Department of
Homeland Security ("DHS") to revoke an approved immigrant visa petition on "good and sufficient
cause" so long as notice is communicated "to the beneficiary of the petition before such
beneficiary commences his journey to the United States." [1] The article asked, in
light of this section, does the DHS have the authority to revoke an immigration visa after
the alien commenced his journey to the United States? It ultimately concluded that § 205 can be
used to revoke immigrant visa petition, but only if the alien beneficiary is outside of the
United States and awaiting consular processing.
In coming to this conclusion, the article directed readers to an important Second Circuit case,
Firstland International, Inc. v. Ashcroft, docket no. 03-6139 (Second Cir. August 2,
2004). This case was a matter of first impression in the Second Circuit. It involved a Chinese
company that sponsored its president on an L-1A nonimmigrant visa. After working in the United
States for two years and even receiving an L-1A extension, the Firstland filed an I-140, under
the multi-national executive/manager category, on behalf of the president. The petition was
approved and the alien applied for adjustment of status. While the adjustment application was
pending that the then Immigration and Naturalization Service ("INS") issued a notice of its
intent to revoke its approval of the I-140 visa petition on grounds that the beneficiary was not
employed in primarily a managerial or executive capacity. This ultimately led to the denial of
the adjustment application.
Firstland then took various steps in appealing the revocation. It filed an appeal with the
Administrative Appeals Office which was ultimately denied. It then took the matter to the
Federal District Court, which also denied the case, holding that INA § 242(a)(2)(B)(ii) precluded
it from exercising subject matter jurisdiction because certain decisions are in the discretion of
the Attorney General. Ultimately, Firstland took the matter to the Second Circuit Court of
Appeals, which held in its favor. The Court interpreted § 205 to mean that the DHS can only
revoke an immigrant visa before the beneficiary departs for the U.S., and not after beneficiary
is already inside the U.S. The Court determined that it had jurisdiction because § 205 provided
some boundaries around the Attorney General’s discretion (i.e. discretion over aliens outside of
the United States v. no discretion over aliens within the United States).
Unfortunately, the boundaries around the Attorney General’s (now the Secretary of the Department
of Homeland Security’s) discretion no longer exist with regard to § 205. On December 17, 2004,
INA § 205 was amended so as to remove the requirement that permits revocation only before the
"beneficiary commences his journey to the United States." [2] By removing these
boundaries, the Firstland holding pertaining to aliens outside the United States and the
analysis presented in the previous article are no longer applicable. The amendment precludes
individuals within the United States from seeking Firstland relief and essentially
reinstates, for the purposes of § 205, the § 242(a)(2)(B)(ii) bar precluding courts from
jurisdiction to review decisions or actions of the Secretary of Homeland Security (previously the
Attorney General). Firstland’s holding grants federal courts jurisdiction when boundaries
are placed around the Secretary’s discretion will remain precedent. So, if another provision of
the INA limits his/her authority, jurisdiction will be allowed. That said, with regard to the
alien beneficiary in the United States, the Secretary now has discretion, without federal
judicial review, to revoke the immigrant visa regardless of whether the alien beneficiary is
within the U.S. or abroad. The amendment to § 205 also permits the DHS to revoke a petition
regardless of whether the alien is within or outside the U.S., without providing notice to the
beneficiary of the petition. The old § 205 specifically required that "notice of the revocation
is communicated through the Secretary of State to the beneficiary of the petition before such
beneficiary commences his journey to the United States."
This amendment reinstates the nightmare situation for immigrants in the United States who have
approved immigrant visas. Such a revocation is likely to cause a great deal of hardship to many
aliens who are already in the U.S. and who most likely have developed substantial ties to this
country. It should be noted, however, that although the amendment to § 205 allows the DHS to now
revoke petitions of aliens already in the U.S. without federal review, the existing regulations
still require the DHS to give notice to the petitioner, as well as the opportunity to offer
evidence in opposition to the grounds alleged for revocation of the approval. [3]
Endnotes
1 The prior language of INA § 205, 8 U.S.C. § 1155 (2004), stated:
The Attorney General may, at any time, for what he deems to be good and sufficient cause, revoke
the approval of any petition approved by him under section 204. Such revocation shall be
effective as of the date of approval of any such petition. In no case, however, shall revocation
have effect unless there is mailed to the petitioner’s last known address a notice of the
revocation and unless notice of the revocation is communicated through the Secretary of State to
the beneficiary of the petition before such beneficiary commences his journey to the Untied
Sates. If notice of revocation is not so given, and the beneficiary applies for admission to
the United States, his admissibility shall be determined in the manner provided for by sections
235 and 240. (emphasis added).
2 The amended INA § 205, 8 U.S.C. § 1155 (2005), asserts:
The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient
cause, revoke the approval of any petition approved by him under section 204. Such revocation
shall be effective as of the date of approval of any such petition.
3 8 C.F.R. § 205.2(b). This regulation has not been amended after INA § 205 was
modified on December 17, 2004.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal conferences and has published several articles. He has received an AV rating from Martindale Hubbell and is listed in the International Who’s Who of Corporate Immigration Lawyers.
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. She is admitted to the bar of the State of New York. The views express in this article do not necessarily represent the views of International Partners in Mission.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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