Shashikant Patel v. United States Citizenship and Immigration Servs.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0293p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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SHASHIKANT PATEL,
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Plaintiff-Appellant,
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No. 12-1962
v.
,
>
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UNITED STATES CITIZENSHIP AND

Defendant-Appellee. N-
IMMIGRATION SERVICES,

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:10-cv-01047—Paul Lewis Maloney, Chief District Judge.
Decided and Filed: October 11, 2013
Before: DAUGHTREY, SUTTON, and KETHLEDGE, Circuit Judges.

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COUNSEL
ON BRIEF: Michael E. Piston, Troy, Michigan, for Appellant. Troy D. Liggett,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Agnes Kempker-
Cloyd, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
KETHLEDGE, J., delivered the opinion of the court, in which SUTTON, J.,
joined. DAUGHTREY, J. (pp. 10–20), delivered a separate dissenting opinion.
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OPINION
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KETHLEDGE, Circuit Judge. Peshtal Inc. filed a petition for an employment
visa on behalf of Shashikant Patel under 8 U.S.C. § 1153(b)(3). The United States
Citizenship and Immigration Services denied the petition. Patel then filed suit in federal
district court under the Administrative Procedure Act, challenging the denial as arbitrary

1
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 2

and capricious. The district court dismissed the suit for lack of prudential standing. We
reverse.

I.

Under the Immigration and Nationality Act, an alien can become a permanent
resident by obtaining an employment visa. Matovski v. Gonzales, 492 F.3d 722, 726–27
(6th Cir. 2007). To do so, the alien must complete a three-step process. Id. at 727.
First, the alien’s potential employer must apply for a labor certification from the United
States Department of Labor. 8 U.S.C. § 1153(b)(3)(C); 20 C.F.R. § 656.17(a)(1). The
Department will issue the certification if there are no qualified U.S. workers available
for the job and the alien’s employment “will not adversely affect the wages and working
conditions” of other workers. 8 U.S.C. § 1182(a)(5)(A)(i).

Second, the employer must file a petition for an employment visa on the alien’s
behalf with the United States Citizenship and Immigration Services (CIS). 8 U.S.C.
§ 1154(a)(1)(F); 8 C.F.R. § 204.5(a). For skilled workers, the CIS will approve the
petition if, among other things, the employer has a valid labor certification and the alien
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).

Third, the alien must apply to adjust his status to that of a permanent resident.
8 U.S.C. § 1255; 8 C.F.R. § 245.2(a)(3)(ii). The CIS will approve the application if two
conditions are met: first, “the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence”; and second, “an immigrant
visa is immediately available to him at the time his application is filed.” 8 U.S.C.
§ 1255(a).

Patel, a native and citizen of India, entered the United States on a one-year
visitor’s visa in 1999. He overstayed the visa and thereafter began looking for a job that
would allow him to obtain an employment visa. Patel found such a job in October 2006,
when Deluxe Inn offered him the position of Lodging Manager at its hotel in Lansing,
Michigan. Deluxe completed the first step of the status-adjustment process by obtaining
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 3

a labor certification from the Department of Labor. But Deluxe faltered at the second
step: it filed a petition for an employment visa on Patel’s behalf, but the CIS denied the
petition because Deluxe “was unable to pay the proffered wage.” See 8 C.F.R.
§ 204.5(g)(2).

Patel got a second chance in February 2010, when Peshtal Inc. offered him a job
as Lodging Manager at its hotel in Richmond, Indiana. Instead of applying for its own
labor certification, however, Peshtal Inc. jumped to the second step of the status-
adjustment process and filed a petition for an employment visa on Patel’s behalf. In
support of that petition, Peshtal Inc. attached the labor certification that Deluxe had
received for the Lodging Manager position in Lansing, Michigan. The CIS denied the
petition on grounds that Peshtal Inc. had failed to get its own labor certification.

Patel filed suit in federal district court under the Administrative Procedure Act,
alleging that the denial of Peshtal Inc.’s petition for an employment visa was arbitrary
and capricious. The government moved to dismiss for lack of prudential standing. The
district court granted the motion. This appeal followed.

II.

A.

We review de novo a district court’s dismissal for lack of prudential standing.
See Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 671 (6th Cir. 2005).

Under the Administrative Procedure Act, a party has prudential standing if he is
“adversely affected or aggrieved by agency action[.]” 5 U.S.C. § 702. A party is
“adversely affected or aggrieved” if the interest he seeks to protect is “arguably within
the zone of interests to be protected or regulated by the statute that he says was
violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132
S. Ct. 2199, 2210 (2012) (internal quotation marks omitted). In determining a statute’s
zone of interests, “we do not look at [the provision at issue] in complete isolation.”
Fed’n for Am. Immigration Reform v. Reno, 93 F.3d 897, 903–04 (D.C. Cir. 1996)
(citing Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401–02 (1987)). Instead, we look at
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 4

that provision alongside any other provision that has an “integral relationship” with it,
in order to “help[] us . . . understand Congress’ overall purposes[.]” Air Courier
Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 529–30 (1991)
(internal quotation marks omitted).

The prudential-standing test “is not meant to be especially demanding.” Patchak,
132 S. Ct. at 2210 (internal quotation marks omitted). Rather, in enacting the
Administrative Procedure Act, Congress intended to “make agency action presumptively
reviewable.” Id. (internal quotation marks omitted). Thus, a plaintiff lacks prudential
standing only if his “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.” Id. (internal quotation marks omitted). And because the
plaintiff only needs to be “arguably” within the statute’s zone of interests, “the benefit
of any doubt goes to the plaintiff.” Id.

Here, Patel alleges that the CIS violated 8 U.S.C. § 1153(b)(3) when it denied the
petition for an employment visa that Peshtal Inc. filed on his behalf. That provision
states in relevant part: “Visas shall be made available . . . to . . . [q]ualified immigrants
who are capable . . . of performing skilled labor (requiring at least 2 years training or
experience) . . . for which qualified workers are not available in the United States.”
(Emphasis added.) Given that § 1153(b)(3) expressly provides for issuance of
employment visas directly to qualified aliens, it is arguable, to say the least, that a
qualified alien who wants an employment visa is within that provision’s zone of
interests.

The government responds that Patel lacks prudential standing because his
interests are inconsistent with the purpose of § 1153(b)(3), which the government says
is the protection of U.S. employers and workers. But it is folly to talk about “the
purpose” of the statute when the statute reflects a compromise between multiple
purposes. One can speculate that Congress meant to exclude certain aliens to protect
American workers, and admit other, “qualified” aliens to help American employers. But
there is no basis in the text of the statute—none—to conclude that Congress was
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 5

completely indifferent to the interests of the “qualified immigrants” themselves. To the
contrary, § 1153(b)(3) makes employment visas available to the immigrant, rather than
his employer, which suggests that Congress gave the immigrant, too, a stake in whether
he gets a visa. Simply stated, under § 1153(b)(3) it is the alien, not the employer, who
is entitled to an employment visa; and that makes unavoidable the conclusion that the
alien’s interests are among those “protected or regulated by the statute[.]” Patchak,
132 S. Ct. at 2210.

Two other provisions corroborate this conclusion. First, 8 U.S.C. § 1255(b)
provides that an alien whose petition is approved under § 1153(b)(3) becomes eligible
for a permanent visa, rather than a temporary one. If § 1153(b)(3) provided employment
visas only for the benefit of U.S. employers (as the government contends), it would be
unnecessary to give the alien a permanent visa; instead, a visa that lasted as long as the
employer needed the alien’s services would do. That Congress rejected that approach
in § 1153(b)(3) suggests that the provision protects the interests of aliens as well as
employers.

Second, the so-called “portability provisions”—8 U.S.C. § 1154(j) and 8 U.S.C.
§ 1182(a)(5)(A)(iv)—likewise reflect a congressional intent to protect the interests of
qualified aliens. Before Congress enacted these provisions, an approved petition for an
employment visa was valid only so long as the alien stayed with the employer that filed
it. Thus, if an alien who had an approved petition wanted to change jobs, he would need
to start the whole status-adjustment process over again. Because of the portability
provisions, however, the alien’s petition “remain[s] valid with respect to a new job”
under certain circumstances. 8 U.S.C. § 1154(j).

All of these provisions make this case distinguishable from others where the
plaintiff lacked prudential standing under the APA. Typically, those cases involved “a
provider of government services challeng[ing] the reduction of benefits to a third party
because the reduction decreases the demand for the provider’s services.” Dismas
Charities, 401 F.3d at 675. Thus, for example, the Supreme Court said that a transcript
preparer would lack prudential standing to challenge an agency’s refusal to hold its
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 6

hearings on the record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990).
This court held that a halfway house lacked prudential standing to challenge the
Department of Justice’s decision to reduce the number of prisoners that it placed in
halfway houses. See Dismas Charities, 401 F.3d at 675. And the Third Circuit held that
an employment agency lacked prudential standing to challenge a decision by the
Secretary of Labor that reduced the number of aliens that could enter the country. See
Intercontinental Placement Serv., Inc. v. Shultz, 461 F.2d 222, 223 (3d Cir. 1972) (per
curiam). We have nothing of the sort here: Patel challenges the denial of a benefit that,
per the statute’s terms, would have gone directly to him.

Of far greater relevance are decisions by three other circuits that hold, on
materially indistinguishable facts, that an alien has prudential standing under the APA
to challenge the denial of his employer’s petition for an employment visa. In De Jesus
Ramirez v. Reich, 156 F.3d 1273 (D.C. Cir. 1998), the court held that “aliens are
obviously regulated by the statute” and that “neither the statute’s text, structure, nor
legislative history supplies the requisite clear and convincing evidence of a preclusive
purpose.” Id. at 1276 (internal quotation marks omitted). In Taneja v. Smith, 795 F.2d
355 (4th Cir. 1986), the court held that the alien “was in the ‘zone of interest’ of the
statute and had standing to challenge” the denial of his prospective employer’s visa
application. Id. at 358 n. 7.

In Stenographic Machines, Inc. v. Regional Administrator for Employment and
Training, 577 F.2d 521 (7th Cir. 1978), the court rejected the amorphous “purpose”
argument that the government again advances here. There, the government argued that
a predecessor skilled-worker visa provision, 8 U.S.C. § 1182(a)(14), “was intended to
protect the American labor market and not foreign laborers.” Id. at 528. Thus, the
government said, the alien’s interest in the petition for an employment visa that his
prospective employer had filed on his behalf “is not within the zone of interests
‘protected’ by the statute[.]” Id. The Seventh Circuit disagreed. The court first noted
that the Supreme Court has phrased the relevant test in the disjunctive—“a plaintiff’s
interest must be arguably within the zone of interests to be protected or regulated by the
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 7

statute[,]” id. (emphasis in original; internal quotation marks omitted)—and then
concluded that “the prospective alien employee” had an interest “within the zone of
interests to be regulated.” Id. The court also held that, “even if [the alien] had to show
that his interest is within the zone of interests to be protected by the statute . . . [the
alien] would have standing.” Id. (emphasis in original). The court’s reasoning was
straightforward: true, the immigration statute was designed in part “to protect American
workers”; but the provisions allowing the admission of qualified aliens were “intended
at least in part for the protection of aliens who are arguably entitled to enter or remain
in the United States on the basis of those standards.” Id.

Disembodied notions of statutory purpose cannot override what the statute
actually says. What § 1153(b)(3) says is that the alien, ultimately, is the one who is
entitled to the employment visa. The alien’s interest in receiving it is therefore within
the zone of interests protected or regulated by the statute. Patel has prudential standing
to challenge the denial of his prospective employer’s petition for an employment visa.

B.

The district court did not decide whether Patel had constitutional standing, but
it suggested that he might not. Given that the process for Patel’s application (and
litigation) has already dragged on for years, we decide the issue here. To establish
constitutional standing, Patel must prove that he suffered an injury in fact that is fairly
traceable to CIS’s conduct and redressable by a favorable decision. See Lujan, 504 U.S.
at 560–61. Patel has suffered an injury that is fairly traceable to CIS: the loss of an
opportunity to become a permanent resident. The issue is whether that injury is
redressable in this lawsuit.

The government argues it is not. Even if the petition’s denial is set aside, the
government says, it still must approve Patel’s application for an adjustment of status.
The government suggests that might not happen, in which case this suit would not
redress Patel’s injury. But the government misunderstands what that injury is. Patel
“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
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 8

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.

C.

The government also argues that Peshtal Inc.’s failure to appeal the denial of its
petition on behalf of Patel means that it has abandoned its petition, which the
government says would make this case moot. But “[w]e doubt that the district court can
presume, as a matter of law, that the employer abandoned the [petition] solely because
the employer failed to appeal[.]” De Jesus Ramirez, 156 F.3d at 1277. To the contrary,
Peshtal Inc. specifically confirmed to the district court that its employment offer to Patel
“[was] still open and [would] continue to be open for the indefinite future.” Moreover,
if Patel were to prevail on his underlying lawsuit, the district court would be required to
hold the petition’s denial unlawful and set it aside. See 5 U.S.C. § 706(2)(A). That
would restore the status quo ante with respect to the petition, and make irrelevant Peshtal
Inc.’s failure to appeal the denial.

D.

Finally, having determined that Patel had both prudential and constitutional
standing in this case, we decline to go further and address the merits of his claim. The
dissent notes that in three cases cited in this opinion the appellate courts answered the
prudential standing question and “went on to hold . . . that the alien-worker plaintiffs
were not entitled to relief on the merits.” Dissenting Op. at 12. But in two of these three
cases, the district court had already reached the merits of the plaintiffs’ claims. See De
Jesus Ramirez, 156 F.3d at 1277; Taneja, 795 F.2d at 356. The district court did not do
so here, and we therefore leave these arguments for that court’s consideration on remand.
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 9

* * *

We reverse the judgment of the district court and remand the case for further
proceedings consistent with this opinion.
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 10

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DISSENT
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MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting. The majority’s
analysis of prudential-standing principles arguably brings plaintiff Shashikant Patel
within the “zone of interest” protected by the relevant immigration statutes, but the
exercise is basically meaningless in the context of this case. Because prudential standing
is a judicial limitation on constitutional standing, most courts conduct a review for
Article III standing before considering prudential standing. See, e.g., Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 101 (1998) (noting that “the absolute
purity of the rule that Article III jurisdiction is always an antecedent question”).
Although the district court did not follow this practice, we certainly have the authority
to do so – and should. Nevertheless, the majority tackled the jurisdictional questions in
reverse order, treating prudential standing at length while giving only brief attention to
the issue of standing under Article III. Because I conclude that the plaintiff’s presence
in “the zone” is irrelevant to the outcome of this case, I offer a different analysis in
dissent. In my judgment, Patel lacks Article III standing because, having failed to satisfy
a condition precedent, he has not established – and cannot establish – redressability, a
sine qua non of constitutional standing. For this reason, the district court was correct in
dismissing the complaint for lack of jurisdiction. That should be the end of this case.

Having reached a contrary conclusion, however, the majority has ordered a
remand to the district court, directing the court to conduct “further proceedings
consistent with this opinion.” In many instances what would come next would be
reasonably clear; in this case, the path is not so obvious. The question is what those
further proceedings would be, other than futile. Were I the district judge on remand, I
might consider beginning where I should have started in the first place: with a review
of Article III standing. But the majority has seemingly short-circuited that option by
holding – incorrectly, in my judgment – that Patel has constitutional standing. The next
possibility is a decision on the USCIS motion to dismiss under 12(b)(6) for failure to
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 11

state a claim and, if that motion is denied, a decision on the merits. The ultimate
decision is available to us because the facts in this case are undisputed, leaving only
questions of law that we can review as easily as can the district court, thereby avoiding
the burden of an unnecessary remand. As one court faced with the same situation has
noted, “The jurisdictional and merits issues in these [immigrant labor certification] cases
are inextricably linked.” De Jesus Ramirez v. Reich, 156 F.3d 1273, 1278 (D.C. Circuit
1998) (emphasis added). None more so than here, as a brief restatement of the
administrative record will show.

Finally, “zone of interest” aside, I do not believe that Patel has established
prudential standing.

Procedural Context

Patel, a citizen of India, had overstayed his visa in 2000 and was facing removal
proceedings. In an effort to avoid that consequence, he repeatedly sought to adjust his
status to that of a lawful permanent resident, based upon a potential employment
opportunity. As explained in Matovski v. Gonzales, 492 F.3d 722, 727 (6th Cir. 2007),
in order to do so:

[An] alien must successfully complete a three-step process. The alien’s
potential employer initiates the first two stages. First, the employer files
[a Form 9089] Application for Alien Employment Certification, with the
Department of Labor. The Department of Labor grants certification
where it can be shown that there are insufficient qualified U.S. workers
available and willing to perform the work at the prevailing wage paid for
the occupation in the area of intended employment. 8 U.S.C.
§ 1153(b)(3).
If the Department of Labor approves the Application for Alien
Employment Certification, the employer may then file an I-140, Petition
for Alien Worker with the [USCIS, an agency in the Department of
Homeland Security]. The [USCIS] examines evidence filed with the
petition to decide whether the alien is eligible for the benefit requested.
For example, the [USCIS] would determine whether an alien (1) has a
labor certification; and (2) meets the minimum requirement of two years
of specialized training or experience needed for the alien to qualify as a
“skilled worker.” 8 U.S.C. § 1153(b)(3)(A)(i).
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 12

If the [USCIS] approves the I-140, the alien files an I-485 Application to
Register Permanent Residence or Adjust Status, the third and final stage
of the employment-based adjustment of status process.

In other words, the Department of Labor first certifies the position as open to a non-
citizen worker (by approving Form 9089), and the USCIS certifies the proposed non-
citizen worker as meeting the minimum requirements of the position (by issuing Form
I-140, supported by Form 9089). If the prospective employer succeeds in securing
approval from both agencies and the prospective employee is already in the United
States, either of them may file a Form I-485 application with the USCIS for an
employment-based adjustment of the employee’s status to that of a permanent resident.
If the non-citizen is out of the country at the time, either may apply for an immigrant
visa allowing the employee to enter the United States and begin working.

Factual Background1

In October 2006, Deluxe Inn, a motel in Lansing, Michigan, filed a Form 9089
with the Department of Labor on Patel’s behalf. In that application, Deluxe Inn claimed
that it was offering Patel a position as a lodging manager at an hourly wage of $22.28,
or $46,342 per year, that it had advertised the position previously through a notice in two
issues of a local newspaper, but that no qualified American workers had applied for the
job.

The Department of Labor issued a labor certification, which Deluxe Inn then
attached to its Form I-140 Immigrant Petition for Alien Worker, which it filed with the
USCIS under the provisions of 8 U.S.C. § 1153(b)(3)(A)(i). Pursuant to agency
regulations, among other things an I-140 petition “must be accompanied by evidence that

1
The recitation of facts that follows is useful because the record is at least partially misstated in
the majority opinion, which appears to confuse the employer’s submission of the initial Department of
Labor Form 9089 for labor certification (step one of the process) with the employer’s submission of the
USCIS Form I-140 petition (step two) and then asserts that what the USCIS denied was Comfort Inn’s
“petition for an employment visa on Patel’s behalf” (which would have been step three). But that is not
what the USCIS denied. Because Comfort Inn did not file its own Form 9089 and thereby skipped step
one, the USCIS denied approval of the I-140 petition at step two. And, because Patel had been in the
country for some ten years, he was not seeking an immigrant visa, which would authorize entry from
outside the United States for employment purposes, but an adjustment of his status as an illegal alien to
that of a permanent legal resident.
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 13

the prospective United States employer has the ability to pay the proffered wage . . . at
the time the priority date is established and continuing until the beneficiary obtains
lawful permanent residence.” 8 C.F.R. § 204.5(g)(2) (2012). When Deluxe Inn was
unable to provide such evidence, the USCIS denied the I-140 petition on April 30, 2009,
citing the prospective employer’s inability to pay the proffered salary. Deluxe Inn could
have appealed that decision but did not do so, and Patel does not challenge the agency’s
action. That decision also resulted in the USCIS’s rejection of Patel’s dependent I-485
application for adjustment of status to that of a lawful permanent resident. Put simply,
Deluxe Inn succeeded at step one of the process but failed at step two.

A few months later, a different employer, Peshtal, Inc., doing business as
Comfort Inn, filed a new I-140 petition with the USCIS, naming Patel as a prospective
lodging manager at its motel in Richmond, Indiana. However, the petition was not
supported by a new Department of Labor certification (Form 9089) showing that
Comfort Inn had tried to hire locally without success, as required by 8 U.S.C.
§ 1182(a)(5)(A)(i)(I). Instead, Comfort Inn merely attached a copy of the Form 9089
approval that had been submitted previously by Deluxe Inn for a different location in an
entirely different state. The USCIS denied this second I-140 application, explaining that
Comfort Inn had failed to secure approval from the Department of Labor specific to
Comfort Inn or to provide evidence establishing its successorship to Deluxe Inn, the only
way it could rely upon the same Form 9089 that Deluxe Inn had submitted in support of
its own I-140 petition. Put simply, Comfort Inn failed at step one and, therefore, could
not succeed at step two.

Comfort Inn did not exercise its right to appeal the denial of its I-140 application
and is not a party to this action. Instead, Patel himself filed suit against the USCIS in
federal district court pursuant to 5 U.S.C. § 702, alleging that the administrative denial
of Comfort Inn’s I-140 application was arbitrary, capricious, and otherwise not in
accordance with law because it did not include a statement of reasons for the denial – an
allegation thoroughly belied by the lengthy explanation provided in the agency’s
decision, covering in detail its reasons for the denial of both the Deluxe Inn and the
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 14

Comfort Inn applications. In the complaint, Patel asked the district court to “compel the
USCIS to approve [Comfort Inn’s I-140 application],” even though there was no valid
Form 9089 from the Department of Labor to support it – a complete failure to satisfy the
condition precedent established by statute in 8 USC § 1182(a)(5)(A)(i).

The USCIS filed a motion to dismiss the complaint for lack of jurisdiction under
Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which
relief could be granted, under Rule 12(b)(6). The district court granted the motion to
dismiss under Rule 12(b)(1), concluding that:

Patel lacks [prudential] standing to seek judicial review of the denial of
Comfort Inn, Inc.’s, Form I-140 petition. Even if Patel could establish
constitutional standing, Patel’s complaint seeks to litigate the rights and
interests of a third party. Additionally, Patel does not fall within the zone
of interests of the [applicable] statute.

Patel appealed the district court’s decision, arguing that the court erred in finding that
he lacked prudential standing and alleging that the error “prohibited [him] from filing
[the I-140 petition]” that the USCIS had denied Comfort Inn, presumably in support of
an I-485 petition for adjustment of status.

As previously noted, the majority here has reversed the district court’s judgment,
concluding that Patel has satisfied the requirements of standing, both constitutional and
prudential, under § 10 of the Administrative Procedures Act. Postponing for the present
a discussion of prudential standing, I turn first to the majority’s analysis of Article III
standing – and find it lacking.

Article III Standing

“To satisfy Article III’s standing requirements, a plaintiff must 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). Thus, at a minimum, in order to establish constitutional
standing to bring an action in federal court, a plaintiff must demonstrate “injury in fact,
causation, and redressability.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir.
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 15

1999) (citing Valley Forge Christian College v. Ams. United for Separation of Church
& State, Inc., 454 U.S. 464, 472 (1982)). Arguably, Patel has suffered an injury –
without a valid I-140 certification, he cannot apply for adjustment of status to that of a
permanent resident, and without a successful adjustment of status, he is subject to
removal proceedings.

In terms of causation, Patel claims that his injury is the result of the USCIS’s
wrongful refusal to issue the I-140 certification. Not so. The actual cause was Comfort
Inn’s failure to supply a valid Form 9089 certification from the Department of Labor in
support of its I-140 application to the USCIS, making his prospective employer the
actual source of the wrong visited on Patel, not the USCIS.

More significantly, the real sticking point in this case is Article III’s
redressability requirement, i.e., that “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). In his amended complaint, Patel included only two
specific prayers for relief: a request, first, that the district court set aside the denial of
Comfort Inn’s I-140 petition and, second, that the court compel the USCIS to approve
that petition. However, without the Department of Labor’s Form 9089 certification, a
valid I-140 petition cannot be issued. As a result, the only way to redress Patel’s plight
would be to order Comfort Inn to start the alien-employment process anew, submitting
its own Form 9089 application to the Department of Labor for certification of the
position in Richmond, Indiana. But Comfort Inn is not before the court, nor is the
Department of Labor, which might or might not approve a Form 9089 for the Indiana
position. And, finally, Patel’s actual interest, approval of his Form I-485 for adjustment
of status, is completely out of reach, because the ultimate decision to grant or deny an
I-485 petition rests not with this court nor with the district court but, in the event of
dispute, in the sole discretion of a separate, independent administrative agency within
the Department Justice.

Hence, even at best, the possibility of redressability here is “speculative” rather
than “likely,” and cannot satisfy Article III’s standing requirements.
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 16

Prudential Standing

But even if Patel could establish constitutional standing, and even if it could be
concluded that Patel falls within the immigration statutes’ zone of interest, that fact alone
is insufficient to establish prudential standing under Sixth Circuit case law. In Coyne,
we recognized that prudential standing requires “[f]irst, [that] a plaintiff must ‘assert his
own legal rights and interests, and cannot rest his claim to relief on the legal rights or
interests of third parties.’” 183 F.3d at 494 (quoting Warth v. Seldin, 422 U.S. 490, 499
(1975) (emphasis added)). It is clear to me, if not to my colleagues, that Patel cannot be
said to assert any rights other than third-party Comfort Inn’s. If Comfort Inn had
succeeded in securing approval of a valid Form 9089 from the Department of Labor and
the issuance of the ensuing I-140 certificate from the USCIS before dropping out of the
picture, perhaps then Patel would be in a position to “assert his own legal right[] and
interest[]” to an adjustment of status through a I-485 petition.2 But, there was no
possibility of Patel’s securing an adjustment of his status in this case, because Comfort
Inn failed to submit a valid Form 9089 request to the Department of Labor, which
therefore denied certification of the position, causing the USCIS to deny the I-140
petition approving Patel for employment in the certified position, which was the
prerequisite for approval of Patel’s I-485 petition.

As a result, the majority’s conclusion that “hold[ing] the denial [of the I-140
certificate] unlawful and set[ting] it aside . . . would restore the status quo ante with
respect to the petition” is plainly incorrect. The majority presumes that Patel could then
go forward in an effort to secure adjustment of his status to that of a permanent resident.
However, a successful petition for adjustment of status (step three) is dependent on
approval of an I-140 petition (step two), which in turn is dependent on the certification

2
Indeed, that was precisely the posture of the plaintiff in the Fourth Circuit case relied upon by
the majority, Taneja v. Smith, 795 F.2d 355 (4th Cir. 1986). Taneja’s prospective employer had secured
a Department of Labor certification, but the effort to secure a visa fell short when the employer failed to
convince the INS (now the USCIS) that the position offered Taneja was full-time. Taneja then sued the
Attorney General and the INS District Director, seeking to compel the issuance of a visa. When the
government argued that Taneja lacked prudential standing, the Fourth Circuit indicated in a footnote, id.
at 358 n. 7, that he was “in the zone of interest” for purposes of prudential standing, but went on to deny
relief on the merits because the employer had “withdrawn its sponsorship of the visa application.” Id. at
358.
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 17

of a position based on a Form 9089 request (step one). And here, Comfort Inn did not
submit a valid Form 9089, relying instead on the inapplicable Form 9089 submitted by
Deluxe Inn. As a result, there simply is no status quo ante to restore in this case.

Portability

But even if the district court could resolve the standing dispute in Patel’s favor,
the court would next have to consider the USCIS’s motion to dismiss under Rule
12(b)(6). In his complaint, Patel based his entire premise that the USCIS should have
approved Comfort Inn’s I-140 petition on the “portability” provisions of applicable
statutes, arguing that Comfort Inn was authorized to submit Deluxe Inn’s Form 9089
labor certification in support of Comfort Inn’s I-140 application. This claim is, however,
wholly incorrect. Under 8 U.S.C. § 1182(a)(5)(A)(iv) and § 1154(j), portability applies
only to approved I-140 petitions; a Form 9089 certification is not portable. Moreover,
the contention in Patel's complaint to the contrary completely misperceives the entire
purpose behind the statutory amendments that created portability. As the Ninth Circuit
recently noted in Herrera v. U.S. Citizenship and Immigration Services:

In 2000, Congress recognized that long delays by the agency in
processing I-485 applications were causing practical difficulties for some
applicants. See, e.g., 146 Cong. Rec. 8437 (2000), also reported at 146
Cong. Rec. S4191-01, *S4191 (daily ed. May 18, 2000) ("All of us have
heard the horror stories of the long delays in processing naturalization
and immigration applications. What was once a 6-month process has
now become a 3-to 4-year ordeal." (statement of Sen. Feinstein)). One
practical problem concerned aliens, like Herrera, who were working
pursuant to an approved I-140 petition. An I-140 petition is filed by the
employer, not by the employee. Before Congress enacted the Portability
Provision, a beneficiary employee of an I-140 petition could not change
jobs and still receive the benefit of the I-140 petition.

571 F.3d 881, 886 (9th Cir. 2009) (emphasis added).

Moreover, under agency regulations, Deluxe Inn’s Form 9089 became invalid
when the USCIS denied the I-140 application submitted by Deluxe Inn on the basis of
inability to pay the proffered salary. See. 20 C.F.R. § 656.30(b). As a result, Deluxe
Inn’s Form 9089 could not be used to support Comfort Inn’s I-140 application because
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 18

it was no longer valid. Portability under 8 U.S.C. §§ 1154(j) and 1182(a)(5)(A)(iv) is
available only in the event of a valid I-140 certification and only after an I-485
application to adjust status has been pending for at least 180 days. Neither circumstance
has occurred in this case. As a result, it is clear that if the case is remanded, the USCIS’s
Rule 12(b)(6) motion would have to be granted, because portability was inapplicable.

The Merits

It is equally clear that if Patel could somehow proceed past the motion stage of
this litigation, he could not succeed on the merits. The most obvious defect in the case,
as noted above, is Comfort Inn’s failure to comply with step one of the three-step
process. Instead of submitting an appropriate application for a Form 9089 certification
of the motel manager’s position offered to Patel, Comfort Inn submitted an invalid Form
9089 to the USCIS, effectively jumping over step one of the process involving the
Department of Labor. Hence, the effort to secure approval of Comfort Inn’s I-140
petition was destined to fail early on.

The likelihood of success suffered another fatal blow when Comfort Inn failed
to appeal the denial of its I-140 application administratively. In an opinion from the
District of Columbia Circuit cited by the majority for the proposition that failure of the
employer to appeal does not necessarily denote abandonment of its petition, the court
held that although the employer’s failure to appeal the denial of a labor certification did
not moot the case or require dismissal for failure to exhaust administrative remedies, it
nevertheless doomed the case on its merits:

We conclude that the Secretary of Labor is always justified (assuming the
regulations are valid) in denying an application for labor certification
where the employer withdraws from the administrative review process
and fails to request review of an adverse decision by the Certifying
Officer. In other words, no alien's claim challenging a labor
certification denial in federal court can ever succeed on the merits if the
employer has abandoned the administrative process before its
completion. This conclusion is implicit both in the regulatory scheme in
general, and in the Secretary's decision in these cases to allow the
Certifying Officer's determination to become the agency's final decision
simply because the employer failed to seek administrative review. We
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 19

think our resolution of the case — that the regulations make the
employer an indispensable party to the certification process — is the
more appropriate means of expressing the conclusion underlying the
district court's exhaustion and mootness analysis. At the end of the day,
the result is the same: the aliens' claims must be dismissed.

De Jesus Ramirez, 156 F.3d at 1278 (emphasis added) (footnote omitted).

Finally, there is no merit to Patel’s claim that the USCIS’s denial of Comfort
Inn’s I-140 petition was arbitrary or capricious. The only basis for the claim set out in
the complaint is that the original Form 9089, once approved by the Department of Labor
for the Deluxe Inn position, was “portable” and, thus, available as support for the
position at the Comfort Inn. But that simply is not the case, as discussed above.
Moreover, it is correct, as the majority here points out, that the Seventh Circuit in
Stenographic Machines, Inc. v. Regional Administrator for Employment and Training,
held that “[a] plaintiff seek[ing] to set aside an administrative determination . . . denying
an application from an employer for an alien employment certification [Form 9089] ”
comes within the zone of interest protected by the alien-worker statute and regulations.
577 F.2d 521, 523 (7th Cir. 1978). But, although the Seventh Circuit could have held,
on the merits, that the defendant Department of Labor’s decision to deny certification
based on the availability of a single qualified American worker was arbitrary and
capricious, it declined to do so, finding in favor of the Department of Labor instead.

Indeed, in all three of the circuit court cases cited by the majority to support the
proposition that Patel falls in the zone of interest regulated by the applicable immigration
statutes, i.e., De Jesus Ramirez, 156 F.3d at 1277, Taneja, 795 F. 2d at 358, and
Stenographic Machines, 577 F.2d at 528, having addressed prudential standing, the
courts went on to hold on the merits that the alien-worker plaintiffs were not entitled to
relief on the merits. Because this litigation is hopeless, we should do the same.

In summary, even conceding, arguendo, that Patel comes within the “zone of
interest” regulated by the statutes and regulations set out above, I nevertheless would not
concede that he has established standing, either constitutional or prudential, or that he
has stated a claim on which relief may be granted. And even if Patel could survive a
No. 12-1962 Patel v. United States Citizenship and Immigration Servs. Page 20

motion to dismiss, there is plainly no merit to his claim as a matter of law. I would,
therefore, affirm the district court’s judgment, and I respectfully dissent from the
majority’s decision to do otherwise.