United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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.
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,  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).
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).
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).
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).
did not furnish to the USCIS a copy of an 1-765 application
or an EAD.
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).
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.
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
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.
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).
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.
Motion to Dismiss
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
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