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Saturday, June 15, 2024 | Back issues
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2nd Cir. Vaults Hurdle |to Visa ‘Portability’

MANHATTAN (CN) - Giving an Indian computer programmer the chance to contest the revocation of her green card, the Second Circuit bemoaned the barriers that immigrants still face to flexible employment more than a decade after congressional action.

Passed in October 2000, the American Competitiveness in the 21st Century Act was designed to provide immigrants with more "portability" with their H-1B status while applying for permanent residency, commonly known as a "green card."

Ganga Mantena, an Indian citizen, entered the United States that year to work as a programmer for the New Jersey-based IT company Vision Systems Group.

Nearly a year after Mantega landed a new job, Vision Systems Group's president, Viswa Mandalapu, pleaded guilty to mail fraud tied to an immigration petition filed on behalf of another employee.

In the wake of that case, the U.S. Citizenship and Immigration Service revoked all of Vision Systems Group's petitions, but the agency only notified the then-defunct company.

By the time Mantena learned that her old boss caused put her immigration status in peril, the immigration officials had already denied her application to adjust her status to a permanent resident.

Last year, a federal judge dismissed Mantena's lawsuit accusing Department of Homeland Security Secretary Jeh Johnson and three other immigration officials of violating her constitutional due-process rights.

Writing on behalf of a unanimous Second Circuit panel, U.S. Circuit Judge Guido Calabresi, whose Italian immigrant parents fled fascism, said that Mantena arrived in court from a more fortunate position than many in her place.

"Much of our court's recent docket has been consumed with poor, often pro se, immigrants who lack, but hope to obtain, legal status," he wrote in a passionate, 33-page opinion.

A relatively skilled and affluent worker, Mantena had the legal assistance of top immigration attorney Joseph Hohenstein and the Washington-based advocacy group American Immigration Council.

Though hardly the average immigration plaintiff, Mantena brought a case illustrating a far too typical flaw of U.S. immigration law, the court found.

"Mantena's immigration ordeal highlights the barriers that, 15 years after the passage of legislation, still impede Congress's intent to provide flexibility to non-citizen workers seeking immigrant status and to those employers seeking to hire such skilled workers," Calabresi wrote.

Under the Immigration and Nationality Act, federal courts do not have jurisdiction to question the Secretary of Homeland Security's decisions, and immigrants often struggle to establish that they have standing to challenge the revocation of their visas in court.

The law does not, however, give the secretary complete discretion over the procedure for making a decision, the court noted.

"If Congress wishes to grant the Secretary full discretion to use whatever procedures he wishes, including arbitrary ones, it must say so explicitly," the opinion states. "It cannot simply assume that courts will read the abrogation of a particular notice requirement as making a much broader and dramatic change by implication."

In emphasizing "portability," Congress hoped to benefit employees and employers alike.

"By virtue of the portability provisions, employers who hoped to attract foreign national employees by sponsoring them to become permanent residents based on a permanent job offer could avoid bureaucratic delay," the opinion states.

The court found that immigration officials use notification procedures that contradict this goal by leaving the applicant at the mercy of the initial employer.

"In such a world, who then is the proper recipient of the notice mandated by the regulations?" the judges asked. "We believe it cannot be a party who no longer has any interest in the matter."

Joined by U.S. Circuit Judges Chester Straub and Rosemary Pooler, the ruling mandates that the District Judge Lorna Schofield determine what the proper notification regulations should be.

In a phone interview, the American Immigration Council's attorney Leslie Dellon called the opinion a "recognition that the portability provisions were an absolute game-changer."

"Congress made this possible so you're not locked in to your first employer," she noted.

The U.S. Attorney's office did not immediately respond to a telephone request for comment.

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