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Li v. United States Citizenship and Immigration Services

United States District Court, D. New Jersey

October 1, 2019

JING LI, Plaintiff,


          PETER G. SHERIDAN, U.S.D.J.

         Presently before the Court is Defendants' motion to dismiss Plaintiffs amended complaint, or, in the alternative, for summary judgment. (ECF No. 31). This case arises from an immigration dispute regarding Plaintiffs eligibility to live and work in the United States. For the reasons expressed herein, Defendant's motion is granted and Plaintiffs complaint (ECF No. 27) is dismissed in its entirety.


         Since this Court extensively set forth the underlying facts and procedural history of the case in its August 14, 2018 Memorandum and Order (ECF No. 19), a brief factual and procedural history follows.

         Plaintiff, Jing Li, is a national and citizen of the People's Republic of China. (Am. Compl., ECF No. 27, at ¶ 8). Plaintiff is the president of GreenTV USA, Inc., a subsidiary of GreenTV Corporation in China. (Id. at ¶ 15). On May 13, 2013, Plaintiff was granted approval of an L-l A visa, [1] which was valid through June 1, 2013 to May 31, 2014. (Id. at ¶ 16; see also Decl. of Sheila Bays, ECF No. 31-4, at ¶ 4). Plaintiff arrived in the United States on September 27, 2013, and on February 18, 2014, applied for an extension of her L-1A visa. (Id. at ¶ 18; Bays Decl., at ¶ 5). Though the United States Custom and Immigration Services [hereinafter the "USCIS"] offers a premium processing option for an additional fee, which guarantees processing within fifteen calendar days, Plaintiff did not request premium processing for this petition. (Bays Decl. at ¶¶ 4-5). Plaintiff returned to China to wait until her L-1A extension was approved. (Am. Compl. at ¶ 19).

         Plaintiffs L-1A extension was granted on February 6, 2015, and was valid from June 3, 2013 through May 31, 2015. (Id. at ¶ 20; Bays decl. at ¶ 5). This Court notes, however, that following this Court's Memorandum and Order dated August 14, 2018, the USCIS amended Plaintiffs L-1A validity dates to June 1, 2014 through May 31, 2016. (Bays Decl. at ¶ 5; Am. Compl. at ¶ 36). After waiting for her L-l A visa extension to be processed, Plaintiff arrived in the United States on May 8, 2015, with only 24 days left on her extension approval. (Am. Compl. ¶ at 21).

         On May 20, 2015, with her L-1A set to expire on May 31, 2015, Plaintiff filed an 1-485 "Application to Register Permanent Resident or Adjust Status" to adjust her status to that of a lawful permanent resident; her employer also filed an 1-140 petition "Immigrant Petition for Alien Worker." (Am. Compl. at ¶ 22). The USCIS approved Plaintiffs 1-140 petition on January 29, 2016. (Id. at ¶ 23). Yet, in connection with Plaintiffs 1-485 application, Plaintiff did not file an 1-765 "Application for Employment Authorization" which would have furnished to her an Employment Authorization Document ("EAD") and would have authorized her to work in the United States. (Bays Decl. at ¶ 12). According to Defendant, despite Plaintiffs failure to file an 1-765 and obtain an EAD, she continued to engage in employment activity in the United States while her 1-485 application was pending. (Defs.' Statement of Material Facts ("SOMF") at ¶ 16).

         On May 18, 2017, the USCIS issued to Plaintiff a Request For Evidence, seeking information regarding her pending 1-485 application. (Am. Compl. at ¶ 28). Specifically, the USCIS requested proof of Plaintiffs continuous employment authorization in the United States from June 1, 2015 to the present, which could be demonstrated by various documents including employment authorization documents, Form 1-797 approval notices, or copies of Form 1-94 arrival/departure records. (USCIS Req. for Evidence, Defs.' Ex. B, ECF No. 31-3, at US-00024). In response to the Request for Evidence, Plaintiff provided the following documents:

1. A Form I-797A Approval Notice showing she had been approved for L-1A status from June 1, 2013 to May 31, 2015 (which was later amended to expire May 31, 2016);
2. A Form 1-797 Approval Notice for the underlying Form 1-140 immigrant Petition for Alien Worker;
3. A Form 1-7971-131, Approval Notice for her Application for Travel Document; and
4. A copy of her most recent 1-94 showing an admission date of April 1, 2017 and an expiration date of March 31, 2018.

(Am. Compl. at ¶ 29).

         Plaintiff did not furnish to the USCIS a copy of an 1-765 application or an EAD.

         On July 24, 2017, the USCIS denied her 1-485 application in a letter stating, in part, "after filing your Form 1-485, maintaining work authorization is required . . . The documents you submitted did not establish that you had work authorization form June 1, 2015 until the present." (Am. Compl., Ex. E, ECF No. 27-5, at 1-2). Plaintiff thereafter filed a motion for reconsideration with the USCIS, which the USCIS denied on August 8, 2017, citing that Plaintiff "did not provide new evidence establishing that [Plaintiff] had work authorization from June 1, 2015 until the present." (Am. Compl., Ex. F, ECF No. 27-6, at 1).

         Plaintiff then filed suit in November 2017, seeking to overturn the USCIS decision denying her 1-485 application for adjustment of status. See Jing Li v. United States Citizenship & Immigration Servs., No. 17-11678 (PGS), 2018 U.S. Dist. LEXIS 137558, at *6 (D.N.J. Aug. 14, 2018). After oral argument on the first motion to dismiss, this Court determined it lacked subject matter jurisdiction to review the denial of Plaintiffs 1-485 application for adjustment of status because "[a]djustment of status applications are governed by 8 U.S.C. § 1255, which provide[s] that adjustment of status decisions [are] committed to the Attorney General's discretion, and . . . this Court is precluded from reviewing any discretionary decisions by CIS." Id. at * 16-17. This Court further concluded that "Plaintiff was rendered a final judgment when her 1-485 application for status adjustment was denied, which is a discretionary decision made by the CIS and the Attorney General. Because the only relief Plaintiff is seeking is an order overturning CIS's denial of her 1-485 application for adjustment of status, jurisdiction in this Court is specifically precluded under § 1252(a)(2)(B)." Id. at *17. This Court also directed Defendants to "review the processing as well as the decision made in connection with Plaintiffs L-lA extension application." Id. at *21.

         Following this Court's Order, the USCIS reviewed its decision concerning Plaintiffs L-1A extension, and in its new decision, the USCIS explained that the L-l A extension petition was granted "with incorrect approval dates" and should have been granted for the period from June 1, 2014 to May 31, 2016. (USCIS Decision, Sept. 25, 2018, Ex. I, ECF No. 27-9, at 1-2). The USCIS issued an amended approval notice to correct the validity dates, and explained that "timely filed L-1A petitions . . .are approved with validity dates beginning the day after the prior status expired or will expire, not the date of adjudication." (Id. at 2). The decision also noted that Plaintiffs "L-1A extension petition was timely filed prior to May 31, 2014, the date Ms. Li's initial L-1A status was set to expire. Accordingly, Ms. Li received an automatic extension of her employment authorization with GreenTV USA, Inc. for a period not to exceed 240 days beyond the expiration of her initial L-1A status per 8 CFR 274a.l2(b)(12), (20). Thus, Ms. Li was authorized to continue working for GreenTV USA, Inc. in the United States until January 26, 2015." (Id. at 2).

         Based on the events subsequent to this Court's August 14, 2018 Memorandum and Order, the Court granted Plaintiffs request to reopen the case, and directed Plaintiff to file an amended complaint. On September 4, 2019, this Court held oral argument on the issues briefed.

         In her amended complaint, Count I alleges that Defendant's actions conflicted with the USCIS policy manual Chapter 6, INA 245(c)(2) and INA 245(c)(8). (Am. Compl. at ¶ 40-43). Count II alleges that Defendant's actions were arbitrary, capricious and unreasonable because the USCIS later approved Plaintiffs form 1-765 application for employment authorization in February 2018 and granted Plaintiff an Employment Authorization Card. (Id. at ¶ 44). In Count III, Plaintiff alleges that Defendants "must be held accountable for its own mistake and not to blame the applicant for being misled," and that, because it was "USCIS' fault that the Plaintiff did not file another L-1A extension application . . . Plaintiff should be given the 240 authorized employment days she would have received had she filed another L-l A extension application." (Id. at ¶ 57). Finally, Plaintiff argues that this Court should hold Defendant in contempt of Court for failing to comply with this Court's August 14, 2018 Memorandum and Order. Ultimately, Plaintiff seeks a holding from this Court that she "maintained valid work authorization from June 1, 2015, to present." (Id. at ¶ 63-66).

         Defendants bring the present motion to dismiss, or, in the alternative, for summary judgment, arguing first that the Court lacks jurisdiction (as it previously found) to review adjustment of status determinations, because Plaintiff is attempting to create jurisdiction where there is none by challenging the factual and legal predicates upon which the status determination was made. (Defs.' Br. in Support of Mot. to Dismiss and Summary Judgment, ECF 31-1, at 16-18). According to Defendants, this is the same as challenging the adjustment of status determination. Id. On the merits, Defendants argue that this Court should dismiss Plaintiffs amended complaint because, first, the USCIS's decision on July 24, 2017 was not arbitrary, capricious, of manifestly unjust; second, any employment authorization documents issued in 2018 have no bearing on the USCIS's adjustment of status determination in 2017; third, Plaintiff cannot point to any misconduct of any CIS employee that would warrant holding Defendants accountable for its mistakes; and fourth, the contempt of court claim is meritless. (See Id. at 18-28).


         A. Motion to Dismiss

         Pursuant to Federal Rule 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). "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 defendant's 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, No. 07-1797, 2007 U.S. Dist. LEXIS 74611, at *7 (D.N.J. Oct. 5, 2007). This 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. 06-4257, 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; rather, 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 N.J. v. Herr, 191 F.Supp.2d 574, 578 (D.N.J. 2002) (citing Gould Elecs. Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000)). "However, '[w]here an attack on jurisdiction implicates the merits of plaintiff s [F]ederal cause of action, the district court's role in judging the facts may be more limited." RLR Invs., LLC, 2007 U.S. Dist. LEXIS 44703, at *9 (internal citations omitted).

         B. Summary judgment

         Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett,477 U.S. 317, 322-23 (1986). "When reviewing agency action under the APA, the District Court sits as an appellate tribunal and the entire case on review is a question of law.'" Aybar v. Johnson,295 F.Supp.3d 442, 451 (D.N.J. 2018) (quoting Soccer Centers, LLC v. Zuchowski, No. 17-1024, 2017 U.S. Dist. LEXIS 169328, at *5 (D.N.J. Oct. 13, 2017)). Because "the administrative agency [was] the finder of fact, . . . [this Court] does not need to determine whether there are disputed facts to resolve at trial." Id. (quotation omitted). Thus, "[t]he Court's review is limited to the administrative record on which the agency based its decision." Id. (citing 5 U.S.C. § 706; Camp v. Pitts, 411 U.S. 138, 142 (1973)). "Summary judgment thus serves as the ...

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