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                                                                       [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-13554
                         ________________________

                   D.C. Docket No. 8:13-cv-00068-JSM-AEP



SUNIL KUMAR KURAPATI,
BHARATHI MALLIDI,

                                                Plaintiffs - Appellants,

versus

U.S. BUREAU OF CITIZENSHIP AND
IMMIGRATION SERVICES,
SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY,
U.S. ATTORNEY GENERAL,
ALEJANDRO MAYORKAS,
Director, United States Citizenship and
Immigration Services,
PERRY RHEW,
Chief, United States Citizenship and Immigration
Services Administrative Appeals Office,
MARK HAZUDA,
Service Center Director, United States Citizenship
and Immigration Services Nebraska Service Center,
ROBERT S. MUELLER, III,
Director, Federal Bureau of Investigation,

                                                Defendants - Appellees.
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                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                (December 22, 2014)

                        ON PETITION FOR REHEARING

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      U.S. Citizenship and Immigration Services (USCIS) moved for panel

rehearing in this case, with an opinion originally filed on September 22, 2014, and

published at 

. In its petition, USCIS challenges our interpretation of

a provision of the Immigration and Nationality Act (INA) in considering the

district court’s subject matter jurisdiction. We agree with the government’s

interpretation of that provision, but we remain convinced that the district court had

subject matter jurisdiction over the allegations in the complaint. Accordingly, we

grant the motion for rehearing, vacate our prior opinion, and substitute it with the

following opinion, which is substantially the same except as to Section III.

      Sunil Kurapati and his wife Bharathi Mallidi, natives and citizens of India,

appeal from the district court’s dismissal for lack of subject matter jurisdiction of

their complaint challenging USCIS’s revocation of I-140 visa petitions filed on

Kurapati’s behalf. On appeal, Kurapati and Mallidi challenge the district court’s


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conclusion that, because Kurapati was a beneficiary, instead of the petitioner, of an

I-140 visa petition, he and Mallidi lacked standing to bring their claims. They also

argue that the district court erred as a matter of law in concluding that the

discretionary decision bar of 8 U.S.C. § 1252(a)(2)(B)(ii) divested the court of

jurisdiction because they were raising a question of law, specifically whether

USCIS adhered to its pre-revocation notice regulations.

                                          I.

      In order to address the issues raised in this appeal, a brief overview of the

immigration procedure applicable to Appellants is necessary. Under the INA, for a

company to permanently employ an immigrant worker, it must follow three steps.

First, the company must file an immigrant labor certification application with the

Department of Labor. INA §§ 203(b)(3)(C), 212(a)(5); 8 U.S.C. §§ 1153(b)(3)(C),

1182(a)(5). Second, after the application is approved, the employer must file an I-

140 visa petition on the immigrant’s behalf with USCIS. INA § 204(a)(1)(F); 8

U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(a). Third, if the I-140 visa petition is

approved, the immigrant and his spouse can file an I-485 application for

adjustment of status. INA §§ 203(d), 245(a); 8 U.S.C. §§ 1153(d), 1255(a); 8

C.F.R. § 245.2(a)(2). Approval of an I-140 visa petition remains valid for

beneficiaries with pending adjustment of status applications who change jobs or

employers if the adjustment of status application has remained unadjudicated for


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180 days or more and the new job is in the same or a similar occupational

classification as the job for which the petition was filed. INA § 204(j); 8 U.S.C.

§ 1154(j).1 This “portability” provision was added to the INA in 2000 pursuant to

§ 106(c) of the American Competitiveness in the Twenty-First Century Act of

2000, Pub. L. No. 106-313, 114 Stat. 1251 (2000).

       Worldwide Web Services, Inc. (Worldwide), completed the first two steps

on Kurapati’s behalf.2 As the beneficiary of valid I-140 visa petitions, Kurapati

was eligible to proceed to step three. He and Mallidi submitted applications for

adjustment of status on August 14, 2007. On April 27, 2009, Kurapati notified

USCIS of his intent to port to a new employer under § 1154(j). On July 5, 2012,

while the applications for adjustment of status were pending, USCIS issued notices

of intent to revoke (NOIR) the I-140 visa petitions to Worldwide. USCIS based

the decision on Worldwide’s alleged misstatement of a material fact in its

applications. Because Worldwide had ceased to exist, only Kurapati filed a

response to the NOIRs, on August 4. USCIS revoked the I-140 visa petitions on

September 12, stating that Worldwide had the right to appeal the revocations.

After Worldwide failed to appeal the revocation, USCIS denied Kurapati’s and


       1
          Section 1154(j) refers to § 1154(a)(1)(D). That is a misprint; the correct subsection is §
1154(a)(1)(F). Herrera v. U.S. Citizenship & Immigration Servs., 

, 886 n.5 (9th
Cir. 2009).
        2
          Worldwide actually filed two separate I-140 visa petitions for Kurapati under two
separate provisions in § 1153(b). This fact is not relevant to our disposition, and we therefore
will not detail the circumstances of each.
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Mallidi’s applications for adjustment of status on October 20. USCIS’s stated

basis for the decision as to Kurapati was the lack of a valid I-140 visa petition, see

8 C.F.R. § 245.2(a)(2)(i), and its basis for the revocation of Mallidi’s application

for adjustment of status was her dependency on Kurapati’s status, see 8 U.S.C. §

1153(d).

      Kurapati filed appeals with the Administrative Appeals Office (AAO) on

September 27, 2012. Worldwide was not involved. During the pendency of those

appeals, on January 8, 2013, he and Mallidi filed a complaint in the U.S. District

Court for the Middle District of Florida. AAO rejected the appeals, citing

Kurapati’s lack of standing under their regulations. See 8 C.F.R. §

103.3(a)(1)(iii)(B) (“[A]ffected party . . . means the person or entity with legal

standing in a proceeding. It does not include the beneficiary of a visa petition.”).

AAO issued the decision to Worldwide only. USCIS moved to dismiss Kurapati’s

complaint under Federal Rule of Civil Procedure 12(b)(1) and (6), alleging that

Kurapati lacked Article III standing and prudential standing and that the district

court did not have subject matter jurisdiction because the decision to revoke the I-

140 visa petitions was committed to USCIS’s discretion. See 8 U.S.C. §

1252(a)(2)(B)(ii) (“[N]o court shall have jurisdiction to review . . . any other

decision or action of the Attorney General or the Secretary of Homeland Security

the authority for which is specified under this subchapter to be in the discretion of


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the Attorney General or the Secretary of Homeland Security . . . .”). The district

court granted the motion on June 10, 2013. This appeal followed.

                                          II.

      When reviewing a district court’s dismissal of a complaint for lack of

subject matter jurisdiction, we review de novo the district court’s legal

conclusions, including the court’s conclusion concerning standing. Elend v.

Basham, 

, 1204 (11th Cir. 2006). We have yet to consider in a

published opinion whether the beneficiary of an I-140 visa petition has standing to

challenge the revocation of a previously approved I-140 visa petition.

      “The Secretary of Homeland Security may, at any time, for what he deems

to be good and sufficient cause, revoke the approval of any petition approved”

under 8 U.S.C. § 1154. INA § 205; 8 U.S.C. § 1155. USCIS must provide notice

of the intent to revoke to the petitioner. 8 C.F.R. § 205.2(b). “The petitioner . . .

must be given the opportunity to offer evidence in support of the petition . . . and in

opposition to the grounds alleged for revocation . . . .” 

USCIS is required to provide the petitioner with written notice of the revocation,

and the petitioner has 15 days to appeal the revocation decision. 

and

(d). Regulations pertaining to appeals from a denial of a petition explicitly exclude

the beneficiary of a visa petition from the definition of those who have standing to

bring an appeal. 

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                                           A.

      To establish constitutional standing, the plaintiff must (1) have an injury-in-

fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3)

can likely be redressed with a favorable decision. Lujan v. Defenders of Wildlife,

, 560–61, 

, 2136 (1992). In Patel v. U.S. Citizenship

and Immigration Services, the Sixth Circuit determined that the immigrant

beneficiary of an I-140 visa petition had constitutional standing because he

suffered an injury that was fairly traceable to USCIS—the loss of an opportunity to

become a permanent resident. 

, 638 (6th Cir. 2013). A favorable

decision would redress this injury by restoring that opportunity, even though

USCIS might not ultimately approve the immigrant’s adjustment of status

application. 

district court concluded that 8 C.F.R. § 103.3(a)(1)(iii)(B)

precluded constitutional standing because it specifically excludes immigrant

beneficiaries such as Kurapati in its definition of parties with standing to challenge

I-140 visa petition revocations. Without analyzing the circumstances under the

tripartite test for constitutional standing, the district court held that Kurapati did not

have standing in the district court because he did not have standing to challenge the

revocation administratively. However, Kurapati argued that USCIS did not

properly follow its own regulations and that he was entitled to notice and an


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opportunity to be heard by USCIS. In other words, he did not seek to have the

district court decide the merits of the appeal of his I-140 visa petition revocation;

he merely sought the opportunity to be heard in an administrative appeal of that

revocation.

      The district court erred in dismissing Kurapati and Mallidi’s complaint for

lack of constitutional standing. First, the regulatory definition of “affected party”

does not preclude the beneficiary from having standing in the district court, as it

relates to who has the ability to challenge the administrative denial of a petition. It

is therefore not a binding statement of constitutional standing. Under the test for

constitutional standing, Kurapati and Mallidi suffered an injury-in-fact from

USCIS’s revocation of the I-140 visa petitions—namely, the deprivation of an

opportunity to apply for adjustment of status—which is fairly traceable to USCIS

and would be redressable by a favorable decision. See 

–61,

112 S. Ct. at 2136. USCIS’s revocation of the I-140 visa petitions resulted in the

automatic denial of Kurapati’s and Mallidi’s adjustment of status applications. See

INA § 245(a); 8 U.S.C. § 1255(a) (providing that to be eligible for adjustment of

status an immigrant must have an immigrant visa immediately available). If the

district court were to conclude that the I-140 visa petition was unlawfully revoked

because USCIS failed to comply with the regulations, Kurapati and Mallidi would




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have the opportunity to challenge the denial of their petitions, and, thus, a

favorable decision would redress the injury. See 

.

                                           B.

      The parties also dispute whether the plaintiffs have “prudential standing,”

but the Supreme Court has recently clarified that “prudential standing” is a

“misnomer.” Lexmark International, Inc. v. Static Control Components, Inc., ___

U.S. ___, 

, 1387 n.4 (2014). The term prudential standing implies

that whether a particular plaintiff falls within the “zone of interests” protected by a

statute or regulation is jurisdictional, but whether a plaintiff’s claim is within the

zone of interests protected by a statute or regulation is not jurisdictional. Id at 1387

& 1387 n.3. Instead of asking whether the plaintiffs have “prudential standing,” we

ask whether the plaintiffs “fall[] within the class of plaintiffs whom Congress has

authorized to sue.” 

Administrative Procedure Act, a party may sue if “the interest

sought to be protected by the complainant is arguably within the zone of interests

to be protected or regulated by the statute in question.” Hollywood Mobile Estates

Ltd. v. Seminole Tribe of Fla., 

, 1268 (11th Cir. 2011) (internal

quotation marks omitted). “In applying the zone of interests test, . . . we first

discern the interests arguably to be protected by the statutory provision at issue; we

then inquire whether the plaintiff’s interests affected by the agency action in


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question are among them.” 

(internal quotation marks omitted). The

zone of interests test “is not meant to be especially demanding.” Clarke v. Sec.

Indus. Ass’n, 

, 399, 

, 757 (1987).

      The Sixth Circuit also held that the beneficiary of an I-140 visa petition is

within the zone of interests protected by the I-140 visa petition process. Patel, 

, 636–38 (6th Cir. 2013). The beneficiary’s interest in obtaining an

employment-based visa was within 8 U.S.C. § 1153(b)(3)’s zone of interests. 

Section 1153(b)(3) makes the visa available directly to the immigrant, not

his employer, which suggests that Congress gave the beneficiary a stake in whether

he was granted the visa. 

This conclusion was corroborated by the fact

that § 1255(b) provides that the beneficiary of an approved I-140 visa petition

becomes eligible for a permanent visa, not a temporary visa that only lasts as long

as the employer needs the immigrant’s services. 

1154(j)

corroborated this conclusion because it reflects a congressional intent to protect the

interests of qualified immigrants by allowing them to change jobs without starting

the whole process over again. 

Circuit noted that the D.C., Fourth,

and Seventh Circuits had each concluded that an immigrant fell within the zone of

interests protected by the applicable provisions of the INA under which his

employer’s I-140 visa petition had been denied. Because the immigrant

beneficiary was ultimately the one entitled to the employment-based visa, the Sixth


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Circuit concluded that the immigrant’s interest in receiving the visa was within the

zone of interests protected by the statute. 

that a beneficiary of an I-140 visa petition who has applied for

adjustment of status and has attempted to port under § 1154(j) “falls within the

class of plaintiffs” Congress has authorized to challenge the denial of that I-140

visa petition. See 

. It is clear from the statutory

framework that such immigrant beneficiaries fall within the zone of interests it

regulates or protects. Once the I-140 visa petition is approved, it is the immigrant

who receives the visa and who applies for adjustment of status. INA §§ 203(b)(3),

245(a); 8 U.S.C. §§ 1153(b)(3), 1255(a). Additionally, § 1154(j) supports the

conclusion that the immigrant’s interests are within the statute’s zone of interests,

as the petitioning employer derives no benefit from the employee’s ability to port

the I-140 visa petition to another employer. 

. Even

assuming that Congress intended to benefit American employers and protect jobs

for American citizens in creating the framework for employment visas, that does

not rule out that Congress acted with the intent to regulate or protect immigrants’

interests. See 

We presume that Congress intended for agency action to

be reviewable. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, __ U.S. __, __, 

, 2210 (2012). USCIS cannot overcome

this presumption merely by pointing to interests besides immigrants’ advanced by


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the statutory framework, especially where they do not necessarily conflict.

Therefore, Kurapati falls within the zone of interests and may challenge the I-140

visa petition revocation.

                                          III.

      A district court lacks subject matter jurisdiction to review any “decision or

action of . . . the Secretary of Homeland Security the authority for which is

specified under this subchapter to be in the discretion of . . . the Secretary of

Homeland Security.” INA § 242(a)(2)(B)(ii); 8 U.S.C. § 1252(a)(2)(B)(ii).

Section 1252(a)(2)(B)(ii) does not deprive the district court of jurisdiction here. If,

as Kurapati claims in his complaint, USCIS failed to follow the correct procedure

in revoking the I-140 petitions, that failure was not within USCIS’s discretion.

Section 1252(a)(2)(B)(ii) thus does not prevent judicial review of the conduct of

the administrative proceedings.

      Kurapati cites our unpublished opinion, Bonillo v. Secretary, U.S.

Department of Homeland Security, to support his position that the district court has

jurisdiction to consider whether USCIS followed protocol. 497 F. App’x 913,

915–16 (11th Cir. 2012) (per curiam). There, we drew a distinction between

judicial review of the I-140 revocation and judicial review of whether the agency

complied with the applicable administrative procedure in revoking the I-140, and

we determined that § 1252(a)(2)(B)(ii) did not divest the district court of


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jurisdiction to consider the latter. 

to distinguish Bonillo from

the present case by asserting that, here, USCIS followed the regulations, while in

Bonillo, USCIS failed to do so. This contention, though, reaches the merits—

actually, the very heart—of Kurapati’s claim; it does not decide the jurisdictional

question.

      We agree with the analysis set forth in Bonillo and apply it here. “Even

when a decision is committed to agency discretion, a court may consider

allegations that an agency failed to follow its own binding regulations.” Fla. Dep’t

of Bus. Regulation v. U.S. Dep’t of Interior, 

, 1257 n.11 (11th Cir.

1985), abrogated on other grounds by Patchak, 

; see Morton v.

Ruiz, 

, 235, 

, 1074 (1974) (“Before the BIA may

extinguish the entitlement of these otherwise eligible beneficiaries, it must comply,

at a minimum, with its own internal procedures.”); Gonzalez v. Reno, 

, 1349 (11th Cir. 2000) (“Agencies must respect their own procedural rules

and regulations.”). Therefore, we conclude that the district court has subject matter

jurisdiction over the claims raised in Kurapati’s complaint.

      VACATED AND REMANDED.




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