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Li v. United States Citizenship and Immigration Services

United States District Court, D. New Jersey

August 14, 2018

Jing Li Plaintiff,


          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on a motion to dismiss by Defendants United States Citizenship and Immigration Services et al. (ECF No. 10-1).


         Plaintiff Jing Li is a national and citizen of the People's Republic of China, and she last entered the United States on 7/7/2017. (ECF No. 1, Compl., ¶7). The Defendants United States Citizenship and Immigration Services is a bureau within the Department of Homeland Security ("DHS") and is responsible for the administration and enforcement of the Immigration and Nationality Act ("IN A") and all other laws relating to the immigration and naturalization of non-citizens. (Id. at ¶8). Defendant Jeh Charles Johnson is the Secretary of DHS, and his responsibilities are denoted n 8 U.S.C. §§ 1103(a)(1)-(3). (Id. at ¶9). Defendant L. Francis Cissna is the Director of USCIS, a position created by Section 451 of the Homeland Security Act. (Id. at ¶IO). Defendant Ron Rosenberg is chief of the Administrative Appeals Unit of USCIS, which is an office authorized by 8 C.F.R. § 1003(a)(1)(iv) under the appellate jurisdiction of the Associate Commissioner of Examinations to review actions of USCIS. (Id. at ¶11). Defendant Donna Campagnolo is the acting Director of the U.S. Citizenship and Immigration Services of the U.S. Department of Homeland Security, who denied Plaintiffs application. (Id. at ¶12). Defendant Kristine R. Crandall is the acting Director of the U.S. Citizenship and Immigration Services of the U.S. Department of Homeland Security, who denied Plaintiffs I-290B form. (Id. at ¶13).

         The Plaintiff is the president of GreenTV USA, Inc., a U.S. subsidiary of GreenTV Corporation in China, and she was sent to the U.S. by her company to start a branch in North America. (Id. at ¶14). Initially, the Plaintiff was granted approval of an L-1A visa in May 2013; by the time the U.S. Consulate processed her application, she had about 8 months remaining on her visa. (Id. at ¶l 5). Needing more time than 8 months to establish the new branch of the company, Plaintiff had to apply for an extension for her L-1A visa. (Id. at ¶¶16-17). Plaintiff did not receive approval of the extension for nearly a year, which meant she had to return to China to wait for the decision before she was allowed back in the U.S. (Id. at ¶18). When Plaintiffs L-1A extension was granted on 2/6/2015 via the 1-797A Approval Notice Form, the new expiration date was set to 5/31/2015, about 3 months after the original deadline instead of the two years usually given by USCIS. (Id. at ¶19). By the time the U.S. Consulate processed her L-1A extension visa, there were only 24 days left on her approval when she arrived in the U.S. on 5/8/2015. (Id. at ¶20). Because it was impossible to operate a business successfully in 24 days and realizing that even an approved L-1A extension could not provide adequate extension, on 5/25/2015, the company submitted I-140 and 1-485 on her behalf seeking adjustment of her status instead of filing another application for L-1A extension. (Id. at ¶21). The Plaintiffs 1-140 application was approved on 1/29/2016. (Id. at ¶22). There was no decision on the 1-485 application for over two years, so in the interim, as the president of the company, the applicant needed to travel outside of the U.S., to meet with clients. (Id. at ¶¶23-24). The Plaintiffs employer filed and received approval for an 1-131 application to the USCIS to leave and reenter the U.S., and Plaintiff used this travel document (1-131) to leave and reenter the U.S. on a number of occasions. (Id. at ¶¶25-26). The Plaintiff was issued a valid I-94 Arrival/Departure form based on her underlying travel document. (Id.).

         As a part of the 1-485 adjustment of status application, the USCIS asked the Plaintiff to "submit proof of your continuous employment authorization in the U.S. from June 1, 2015 to present. Such evidence may include copies of: Employment authorization documents (Forms I-688 or 1-766) granted to you by this Service; Form 1-797 approval notices, showing you were granted status in an employment authorized nonimmigrant classification; and/or copies of Form I-94 Arrival/Departure Records showing you were admitted to the U.S. in an employment-authorized nonimmigrant status. (Id. at ¶27). In response to this Request for Evidence, the Plaintiff provided the following: A Form I-797A Approval Notice showing she had been approved for L-1A from June 1, 2013 to May 31, 2015; A Form 1-797 Approval Notice for the underlying Form 1-140 immigrant Petition for Alien Worker; A Form 1-797 1-131, Approval Notice for her Application for Travel Document and; a copy of her most recent 1-94 showing an admission date of April 1, 2017 and an expiration date of March 31, 2018. (Id. at ¶28).

         On July 24, 2017, the Defendants denied Plaintiffs 1-485 application in a letter stating, in part: "While maintaining status is not necessary after filing your Form 1-485, maintaining work authorization is required;" and "The document you submitted did not establish that you had work authorization from June 1, 2015 until the present." (Id. at ¶29). On 11/2/2017, in response to the plaintiffs Form I-290B, Notice of Appeal, the Defendants, citing that Plaintiff did not provide "new evidence establishing the fact that the applicant had work authorization from June 1, 2015 until the present," denied her motion for reconsideration. (Id. at ¶30). Plaintiff is suing USCIS on three counts:

1. Defendants' Action was in Conflict with INA 245(C)(2) and 245(C)(8)
2. Defendants' Action was Arbitrary, Capricious and Unreasonable and Defies Common Sense; and
3. Defendants Continued to Recognize that the Applicant has Work Authorization Incident to her L-1A Status During the Pendency of the Applicant's Adjustment of Status Application by Granting her a Travel Document to Continue to Do Such Work

         Jing Li filed an initial complaint against Defendants on November 15, 2017. (ECF No. 1). Defendants filed for a motion to dismiss for lack of jurisdiction and, in the alternative, for summary judgment on May 4, 2018. (ECF No. 10). Plaintiff then filed for a motion to amend/correct complaint on June 4, 2018. (ECF No. 13). Plaintiff is motioning to amend the original Complaint to challenge USCIS's actions with respect to other applications and petitions Plaintiff made or were made on Plaintiffs behalf. Plaintiff argues that even if the District Court is barred from reviewing the applicant's 1-485 adjustment of status decision under 8 U.S.C. § 1252(a)(2)(B)(ii), this bar does not extend to the Plaintiffs challenge to the agency's unreasonable action taken on her L-1A extension application or her 1-131 application.


         Pursuant to the Federal Rules of Civil Procedure, Rule 12(b)(1), a claim can be dismissed for "lack of jurisdiction over the subject matter." This motion to dismiss may be asserted at any time in a case. In re Kaiser Group Int'l, Inc.,399 F.3d 558, 565 (3d Cir. 2005). In a motion to dismiss based on subject matter jurisdiction, "the standard ... is much more demanding [than the standard under 12(b)(6)]. "When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." Hedges v. United States,404 F.3d 744, 750 (3d Cir. 2005). If the Defendants' attack is facial, the court may take all allegations in the complaint as true and "may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction." Liu v. Gonzales, 2007 U.S. Dist. LEXIS 74611, at *7 (D.N.J. Oct. 5, 2007). The standard of review differs substantially from that under Rule 12(b)(6), however, when the challenge is factual. Then, there is no presumption of truthfulness to a plaintiffs claims in the complaint. RLR Invs., LLC v. Town of Kearny, No. 06-cv-4257, 2007 U.S. Dist. LEXIS 44703, at *8 (D.N.J. June 20, 2007) (citations omitted). Thus, consideration of the motion does not have to be limited, conflicting evidence may be considered so that the court can decide factual issues that may bear on its jurisdiction. Id. Furthermore, "[w]hen resolving a factual challenge, the court may consult materials outside the pleadings, and the burden of proving jurisdiction rests with the plaintiff." Med. Soc'y of NJ. v. Herr,1 ...

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