# MUTASA v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES

> District Court, D. New Jersey · March 31, 2021

URL: https://www.frixlaw.com/law-library/cases/10654911

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 31, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10654911

## How later opinions describe it (automated extraction)

- applying that principle to field guidance for adjudications by the Service’s predecessor agency

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ALICE MUTASA,
Plaintiff,
v. Civ. No. 20-09321 (KM) (ESK)
U.S. CITIZENSHIP AND OPINION
IMMIGRATION SERVICES, and
KENNETH CUCCINELLI, Acting
Director,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Alice Mutasa and her employer filed an employment visa petition with
the United States Citizenship and Immigration Services (“the Service”). The
Service rejected her petition because a page was missing, she and her employer
corrected the error, and then the Service denied her petition because a required
certificate had, by then, expired.
Mutasa sued the Service, alleging that its actions were unlawful,
arbitrary, capricious, and an abuse of discretion. The Service moves to dismiss
for failure to state a claim. (DE 16.)1 The Service is within its rights, and I
understand the need for regularized procedures when dealing with many

1 Certain citations to the record are abbreviated as follows:
DE = docket entry
Compl. = Complaint (DE 1)
Mot. = Service’s Brief in Support of its Motion to Dismiss (DE 16-1)
Opp. = Mutasa’s Opposition to the Service’s Motion to Dismiss (DE 17)
Reply = Service’s Reply Brief in Support of its Motion to Dismiss (DE 18)
Rejection = Rejection Notice (Dec. 19, 2019) (DE 17-3)
Denial = Service’s Decision (Feb. 12, 2020) (DE 17-5)
thousands of applications. Mutasa’s plight, however, is sympathetic, and the
result may be months of delay and a reapplication, leading to the same result.
One dreams of a system with time and resources enough to simply deal with
each applicant face-to-face, without respect to matters of form. For good and
practical reasons, that is not the system we have. The Service’s motion is
GRANTED.
I. BACKGROUND
A. Regulatory Background
An overview of the applicable regulatory scheme is helpful. The
Immigration and Nationality Act (“INA”) creates different employment-based
immigration visas. Shalom Pentecostal Church v. Acting Sec’y U.S. Dep’t of
Homeland Sec., 783 F.3d 156, 159 (3d Cir. 2015) (citing 8 U.S.C. § 1153(b)(1)–
(5)). One is for “[s]killed workers” and “professionals,” the so-called “EB-3” visa.
§ 1153(b)(3). The EB-3 application process involves two agencies (the Service
and the Department of Labor (“DOL”)) and three steps.
First, an alien’s American employer obtains a labor certification from
DOL attesting that there are no qualified workers in the United States available
to take the job. See § 1182(a)(5)(A)(i). That certification is valid for 180 days. 20
C.F.R. § 656.30(b)(1).
Second, the employer files a “Form I-140” petition with the Service along
with the labor certification. 8 C.F.R. § 204.5(l)(1), (3)(i). If the visa eligibility
requirements are met, the Service “will approve” the visa. Id. § 103.2(b)(8)(i). If
not all the required evidence is submitted to make the eligibility determination,
the Service “in its discretion may deny the benefit request for lack of initial
evidence or for ineligibility or request that the missing initial evidence be
submitted.” Id. § 103.2(b)(8)(ii).
Third, the employee files a “Form I-485” application for adjustment of
status to legal permanent resident. Id. § 245.2(a)(3)(ii). Depending on the
circumstances, the I-485 application is filed either concurrently with the I-140
petition or following approval of an I-140 petition. Id. § 245.2(a)(2). Subject to
certain additional requirements not relevant here, the Service may approve the
application and adjust the alien-employee’s status to permanent resident. See
id. § 245.2(a)(5)(ii).
B. Mutasa’s Application Process
Mutasa is a Zimbabwe citizen with advanced business degrees. (Compl.
¶¶ 25–26.) She has worked for her U.S.-based employer since 2013 under a
different visa program. (Id. ¶ 27.) Her employer (which the Complaint does not
name) decided to transition her to a permanent role, so it began the EB-3
process. (Id. ¶¶ 27–29.)
The employer first obtained a labor certification from DOL on June 4,
2019. (Id. ¶ 36.) 171 days later, the employer submitted an I-140 petition along
with the labor certification to the Service. (Id. ¶ 37.) The employer included an
I-495 application from Mutasa with the I-140 petition. (Id. ¶ 41.)
There was, however, a paperwork mix-up. Inadvertently, page two of the
I-485 application was inserted as page two of the I-140 petition. (Id. ¶ 43.) The
two pages contain nearly the same information—except that page two of the I-
140 petition contains a field for the alien’s birthdate, while page two of the I-
485 application does not. (Id. ¶ 44.) As a result, the I-140 petition did not
contain Mutasa’s birthdate. Nonetheless, supporting documents filed with the
petition listed her birthdate at least five times. (Id. ¶ 45.)
The Service rejected the I-140 petition because it was missing page two
and thereby Mutasa’s birthdate. (Id. ¶ 42.) In a “Rejection Notice,” the Service
explained as follows:
Your 1-140, fees, and any supporting documentation is being
returned to you for the following reason(s):
The application/petition you sent us is missing some pages. . . .
The application/petition has not been fully completed. One or more
of the following field(s) were not completed:
- Part 3 Date of Birth
(Rejection at 1.)2
Mutasa and her employer quickly rectified the error and resubmitted the
I-140 petition and I-485 application. (Compl. ¶ 51.) This time, however, the
Service denied (as opposed to rejected) the resubmitted I-140 petition because,
at that point, the 180-day labor certification validity period had expired. (Id.
¶ 52.) The Service explained that “[t]he [labor certification] submitted in
support of your petition was certified on November 5, 2018, and remained valid
until December 1, 2019. Since your petition was filed on January 31, 2020, the
labor certification was no longer valid at the time your petition was filed.”
(Denial at 1.) Because an I-140 petition requires a valid labor certification, the
Service denied Mutasa’s petition. (Id.)
As a result, Mutasa’s visa status is in jeopardy. (Compl. ¶ 58.) The EB-3
process is time-consuming and costly. (See id. ¶ 36 (seventh-month process to
obtain labor certification); 20 C.F.R. § 656.17 (describing actions an employer
must take to obtain a labor certification).) Her current visa is nonpermanent,
so there is a risk that she will lose lawful status in the interim if she and her
employer have to repeat the EB-3 process. (See Compl. ¶ 58.)
C. Procedural History
Mutasa sued the Service and its then-acting director in his official
capacity. (Compl. ¶ 15–16.)3 She asserted four claims: (1) violation of the INA;
(2) violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702; (3) a

2 Mutasa submitted the Service’s written decisions with her Opposition brief. As
documents explicitly relied upon in the Complaint, I may consider them on a motion to
dismiss. Doe v. Univ. of Scis., 961 F.3d 203, 208 (3d Cir. 2020); see also Kerrigan v.
Chao, Civ. No. 04-1189, 2004 WL 2397396, at *1 (E.D. Pa. Oct. 26, 2004) (“In
reviewing the propriety of administrative proceedings . . . the Court may consider at
the Rule 12(b)(6) stage the record of administrative actions, opinions, and decisions on
which a Plaintiff bases his complaint.”).
3 The Service currently has no director. USCIS, Tracy Renaud, Senior Official
Performing the Duties of the Director, U.S. Citizenship and Immigration Services; Director
https://www.uscis.gov/about-us/organization/leadership (last visited March 30,
2021). Were this case to continue, I could substitute in any newly appointed director.
Fed. R. Civ. P. 25(d).
claim under the Mandamus Act (“MA”), 28 U.S.C. § 1361, to compel the Service
to accept her petition and grant a visa; and (4) a claim under the Declaratory
Judgment Act (“DJA”), 28 U.S.C. § 2201(a), for a declaratory judgment that the
Service violated the INA and APA. (Id. ¶¶ 63–79.) The Service moves to dismiss
the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Mot.)
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) does not require that a pleading
contain detailed factual allegations but “more than labels and conclusions.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must raise
a claimant’s right to relief above a speculative level, so that a claim is “plausible
on its face.” Id. at 570. That standard is met when “factual content [] allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6)
provides for the dismissal of a complaint if it fails to state a claim. The
defendant bears the burden to show that no claim has been stated. Davis v.
Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in the complaint
as true and draw reasonable inferences in the plaintiff’s favor. Morrow v.
Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc).
APA cases differ somewhat. “When a party seeks review of agency action
under the APA, the district judge sits as an appellate tribunal. The entire case
on review is a question of law.” Neto v. Thompson, --- F. Supp. 3d ----, ----, Civ.
No. 20-00618, 2020 WL 7310636, at *2 (D.N.J. Dec. 10, 2020) (quoting Am.
Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)).
III. DISCUSSION
This is an APA case.4 “The APA sets forth the procedures by which
federal agencies are accountable to the public and their actions subject to

4 Mutasa’s other claims are subsumed by her APA claim. As to her INA claim, the
INA does not contain its own private right of action. E.g., Smith v. Smith, Civ. No. 20-
9120, 2020 WL 5626982, at *2 (D.N.J. Aug. 18, 2020) (collecting cases). Nonetheless,
the APA allows a plaintiff to bring a claim that an agency violated a statute even if the
statute itself does not provide a cause of action. Lexmark Int’l, Inc. v. Static Control
review by the courts.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140
S. Ct. 1891, 1905 (2020) (quotation marks and citation omitted). The APA
empowers courts to review agency actions for whether they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
The Complaint alleges various ways in which the Service’s rejection and
then denial of Mutasa’s petition was contrary to the INA’s implementing
regulations, arbitrary and capricious, and an abuse of discretion. The Service’s
Motion responds by explaining how the rejection and denial comported with the
law and were otherwise reasonable. I take up the Service’s arguments first as
they relate to its initial rejection of the petition due to the missing page and
birthdate, and then to its subsequent denial due to the expired labor
certification.5
A. Initial Rejection
Mutasa alleges that there was no support in the regulations for the
Service’s rejection, so it was contrary to law. Even if it was not contrary to law,
she argues, the rejection was arbitrary and capricious or an abuse of
discretion. I disagree; the Service’s rejection was rigid and bureaucratic, but it
was supported by the regulations and otherwise reasonable.

Components, Inc., 572 U.S. 118, 130 (2014); see also Neto, 2020 WL 7310636, at *2
(claim that the Service wrongfully denied adjustment application brought under the
APA). As to her MA claim, the APA provides a mandamus remedy, so her MA claim is
duplicative. Thompson v. U.S. Dep’t of Labor, 813 F.2d 48, 52 (3d Cir. 1987); see also
Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (analyzing an MA claim as
an APA claim). As to her DJA claim, the DJA does not create a separate cause of
action, just “a remedy for controversies otherwise properly within the court’s subject-
matter jurisdiction.” Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 394
(3d Cir. 2016). Thus, an APA violation underlies all her claims.
5 I note briefly at the threshold that, although unchallenged by the Service,
Mutasa has standing and falls within the INA’s zone of interests, even though it was
her employer who handled the petition. See Shalom Pentecostal Church, 783 F.3d at
162–64.
Contrary to Law
The Service argues that it has authority to reject petitions with
incomplete forms. (Mot. at 5–7.) The Service points to three regulations. One
provides that “[e]ach benefit request must be properly completed and filed with
all initial evidence required.” 8 C.F.R. § 103.2(b)(1) (emphasis added). Another
provides that “[a] benefit request will be rejected if it is not . . . [f]iled in
compliance with the regulations governing the filing of the specific application,
petition, form, or request.” Id. § 103.2(a)(7)(ii)(C). Along those lines, another
provides that “[e]very form . . . must be submitted . . . and executed in
accordance with the form instructions,” and those instructions are
“incorporated into the regulations.” Id. § 103.2(a)(1). The instructions for the I-
140 form stated that “[i]f you do not completely fill out this petition, you will not
establish a basis for your eligibility and [the Service] may reject or deny your
petition.” Form I-140 at 10, available at
https://www.regulations.gov/document/USCIS-2007-0018-0299 (emphasis
added).6

6 Mutasa asks me to disregard the form instructions because they were not
promulgated by notice-and-comment rulemaking. (Opp. at 14.) Generally, agency rules
must go through a procedure known as notice-and-comment. Pa. Dep’t of Human
Servs. v. United States, 897 F.3d 497, 505 (3d Cir. 2018). “If a rule is more properly
classified as an ‘information collection’ mechanism, however, that rule is not subject
to APA notice-and-comment procedures and instead falls under the ambit of the
Paperwork Reduction Act (‘PRA’), 44 U.S.C. § 3501, et seq. . . . .” Nat’l Fair Hous. All. v.
Carson, 330 F. Supp. 3d 14, 54 (D.D.C. 2018); see United Steelworkers of Am., AFL-
CIO-CLC v. Pendergrass, 855 F.2d 108, 111–12 (3d Cir. 1988). “Typical information
collection requests” include agency forms. Dole v. United Steelworkers of Am., 494 U.S.
26, 33 (1990). The Service appears to have followed the PRA process. See 5 C.F.R.
§ 1320.10(a)–(b) (describing PRA process in which an agency solicits comments and
submits the form for review by the Office of Management and Budget (“OMB”), and
OMB approves the form and assigns a control number); Agency Information Collection
Activities; Extension, Without Change, of a Currently Approved Collection: Petition for
Amerasian, Widow(er), or Special Immigrant, 83 Fed. Reg. 8,499 (Feb. 17, 2018)
(submitting the form for review and clearance); Form I-140 at 1 (showing OMB control
number and dated May 9, 2018 with an expiration date of May 31, 2020). Thus, there
is no infirmity with the form, and I may consider it.
Mutasa responds that her I-140 form was, in effect, “complete” because
her missing birthdate was ascertainable from other documents submitted.
(Opp. at 12–13.) She relies on one regulation providing that “[a]ny evidence
submitted in connection with a benefit request is incorporated into and
considered part of the request.” 8 C.F.R. § 103.2(b)(1).
The Service has the better reading of the regulations and has thus shown
that it had a legal basis for the rejection. An I-140 form must be “properly
completed” and “completely fill[ed] out.” Id. § 103.2(b)(1); Form I-140 at 10.
Mutasa’s form did not meet that standard because it lacked a page. She is
correct that the information on that missing page could be gleaned elsewhere in
her packet. But the regulations and instructions speak to the necessity of
correctly completing and filling out a form. Providing the required information
in some other manner does not fulfill the separate and distinct requirement
that the applicant “completely fill out [the] petition.” Form I-140 at 10.
Accordingly, the Service has shown that its rejection was in line with the
applicable regulations.
Arbitrary and Capricious or an Abuse of Discretion
That an agency’s actions have legal support does not necessarily
establish that the agency complied with the APA. See Michigan v. EPA, 576 U.S.
743, 750 (2015) (“Not only must an agency’s decreed result be within the scope
of its lawful authority, but the process by which it reaches that result must be
logical and rational.” (citation omitted)); Neto, 2020 WL 7310636, at *3 (in
arbitrary-and-capricious cases, a plaintiff alleges that an agency legally has
authority but exercised it unreasonably (citation omitted)). My review here is
“narrow”; I do not “substitute [my] judgment for that of the agency . . . but
instead [] assess only whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.”
Regents, 140 S. Ct. at 1905 (quotation marks and citations omitted). Mutasa
alleges three ways that the denial was arbitrary and capricious or an abuse of
discretion. (See Compl. ¶ 49.)
a. Request for Evidence
First, Mutasa alleges that the Service could have—and should have,
under its own policies—requested evidence of her missing birthdate. (Id.) The
regulations provide that “[i]f all required initial evidence is not submitted . . . ,
[the Service] in its discretion may . . . request that the missing initial evidence
be submitted.” 8 C.F.R. § 103.2(b)(8)(ii).7 Mutasa rightly acknowledges that this
regulation gives the Service discretion to request, or not request, additional
evidence. But agency policy, she says, has cabined that discretion. (Opp. at
17.) Indeed, “if an agency announces and follows . . . a general policy by which
its exercise of discretion will be governed, an irrational departure from that
policy . . . could constitute action that must be overturned as arbitrary,
capricious, [or] an abuse of discretion.” M.B. v. Quarantillo, 301 F.3d 109, 112–
13 (3d Cir. 2002) (citation omitted); see also id. at 116 (applying that principle
to field guidance for adjudications by the Service’s predecessor agency); Yafai v.
Cuccinelli, No. 20 Civ. 2932, 2020 WL 2836975, at *4 (S.D.N.Y. June 1, 2020)
(Service’s failure to follow its usual procedures when adjudicating adjustment
applications could be arbitrary and capricious); Fontenoy Eng’g, Inc. v. Baran,
No. 18-cv-03361, 2020 WL 137155, at *6 n.3 (N.D. Cal. Jan. 13, 2020) (same);
Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 53 (D.D.C. 2011) (same).
She points to a policy memo from the Service. USCIS, Issuance of Certain
RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a),
Chapter 10.5(b), PM-602-0163 (July 13, 2018), available at
https://www.aila.org/infonet/uscis-policy-memo-issuance-of-rfes-and-noids
(hereinafter “Policy Memo”). The Policy Memo “provides guidance
to . . . adjudicators regarding the discretion to deny an application, petition, or
request without first issuing a Request for Evidence,” or “RFE.” Id. at 1. A
previous memo had informed adjudicators that they should issue an RFE

7 The Service argues that this regulation does not apply to Mutasa’s case because
it requires that a petition first be accepted for filing, which Mutasa’s was not. (Mot. at
9–10.) That prerequisite cannot be found in the regulation, which states that it applies
when evidence is “submitted.”
before denying a petition “unless there was ‘no possibility’ that the deficiency
could be cured by submission of additional evidence.” Id. at 2. But the Policy
Memo rescinded the “no possibility policy” and “restore[d]” the Service’s “full
discretion” to deny a petition without first issuing an RFE. Id. The Memo
further provided that a denial without sending an RFE would be appropriate
when “form instructions require the submission of an official document or
other form or evidence establishing eligibility at the time of filing and there is
no submission.” Id. at 3.
It is true that the Memo explained that this change in policy was “not
intended to penalize filers for innocent mistakes.” Id. at 2. Likewise, a follow-up
document explained that “[i]f the initial required evidence is missing,
adjudicators should take into account various factors to determine whether the
missing evidence is due to an innocent mistake or misunderstanding and to
what extent the petitioner or applicant tried to comply with the form
instructions and regulatory requirements.” USCIS, USCIS Policy Update on
Issuing RFEs and NOIDs at 4 (Sept. 6, 2018), available at
https://www.uscis.gov/sites/default/files/document/foia/USCIS_Policy_Upda
te_on_Issuing_RFEs_and_NOIDs.pdf (hereinafter “Policy Update”).
Still, the Policy Memo and Update do not render the Service’s rejection
here arbitrary, capricious, or an abuse of discretion. This is so for two reasons.
First, the Policy Memo and Update do not clearly apply to Mutasa’s
situation. They provide guidance regarding missing evidence, not incomplete
forms. That is, they are directed at scenarios in which a petitioner does not
provide the required supporting documentation. See Policy Memo at 3 (giving
an example where an applicant omits an affidavit required for some visas). The
problem with Mutasa’s petition was that her form was incomplete. As
explained, the regulations require complete forms and proper evidence;
Mutasa’s first submission was deficient as to the former, while the Policy Memo
and Update deal with the latter. So understood, the Policy Memo and Update
are not so on-point that the Service clearly or irrationally departed from them
in this case.8
Second, the Policy Memo expressly restores “full discretion” to the
Service in deciding whether to issue RFEs. Accordingly, while some policy
documents can cabin discretion, see M.B., 301 F.3d at 112–13, the Memo is
not such a document.
Thus, neither the Policy Memo nor Update represents a policy from
which the Service’s departure could be regarded as arbitrary, capricious, or an
abuse of discretion.
b. Reliance on Other Documents
Mutasa alleges it was unreasonable for the Service to reject her petition
for a missing birthdate when it could have discerned her birthdate from other
documents she submitted. (Compl. ¶ 49.) As a matter of common sense, her
argument is plausible, but as a matter of administrative law, it is unavailing.
Put that way, the Court may regret that administrative law and common sense
have parted ways, but the Service has sound institutional reasons for rigid
adherence to its procedures.
“An action will not be deemed arbitrary, capricious, or an abuse of
discretion simply because one may happen to think it ill-considered, or to
represent the less appealing alternative solution available . . . . Rather, we
require that the agency’s action be rationally related to the purposes to be
served . . . .” Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 223 (3d Cir. 2003)
(citation omitted). The Service has an interest in ensuring that all applicants
follow procedure, including filing complete forms. Cf. Regents, 140 S. Ct. at
1909 (“[M]en must turn square corners when they deal with the Government.”
(citation omitted)). As the Service explains, if it were required to discern

8 Even if the Policy Memo were interpreted to apply to incomplete forms, the
Memo arguably authorizes a rejection here. The Memo provides that denial is
appropriate when “form instructions require the submission of an official document or
other form . . . at the time of filing and there is no submission.” Policy Memo at 3
(emphasis added). Here, there was no complete submission of an I-140 form.
information from supporting documents, then the forms themselves would
“become voluntary.” (Reply at 2.) Indeed, while the error in this case was minor,
if the Service excuses the filing requirements in this case, it may need to so in
others. See Nazareth Hosp. v. Sec’y U.S. Dep’t of Health & Human Servs., 747
F.3d 172, 179–80 (3d Cir. 2014) (“If [an] agency makes an exception in one
case, then it must either make an exception in a similar case or point to a
relevant distinction between the two cases.” (citation omitted)). The Service
perhaps exaggerates in arguing that the forms would thereby become a nullity.
But the Service’s efficiency concerns are weighty; administrative procedures are
standardized so that procedures need not be improvised or argued about in
each case. Here, perhaps, the birthdate could have been found easily—but how
easy is easy enough? Simple and clear procedures quickly devolve into case-by-
case adjudication. Arbitrariness is created, not eliminated, by such a system.
This form is designed so that the applicant’s birthdate is in a particular
location and can be read (or scanned) instantaneously. Substitution of a
lengthier, less well-defined process—even one that takes minutes, rather than
seconds—may, when multiplied by thousands of instances, create inefficiencies
that harm all applicants.
Accordingly, it was not arbitrary and capricious or an abuse of discretion
for the Service to require the correct paperwork instead of undertaking to find
the necessary information elsewhere in Mutasa’s submission.
c. Interview
Mutasa alleges that the Service could have accepted her petition for filing
and asked about her birthdate in the interview that follows in the EB-3
process. (Compl. ¶ 49.) This allegation fails for the same reasons given above.
While questioning during an interview perhaps was an alternative, the Service
was not required to adopt it, and its rejection was still supported by law and its
interests in procedural regularity. As a result, it was not arbitrary and
capricious or an abuse of discretion. Yeboah, 345 F.3d at 223.
* * *
In sum, the Service’s initial rejection was supported by the regulations
and otherwise reasonable under my deferential standard of review. Accordingly,
Mutasa’s allegations regarding the initial rejection do not plausibly state an
APA claim.
B. Subsequent Denial
The Service defends the subsequent denial of Mutasa’s resubmitted
petition on the ground that, as it reads the regulations, the labor certification
was no longer valid. (Mot. at 7.) Mutasa counters with materials from the
Service which in her view demonstrate that its interpretation is wrong or
inconsistent with prior adjudications. (Opp. at 20–22.) I analyze the text and
purpose of the relevant regulations and then turn to Mutasa’s arguments.
Regulatory Text and Purpose
The relevant DOL regulation provides that a certification “expires if not
filed in support of a Form I-140 petition with the Department of Homeland
Security within 180 calendar days of the date [DOL] granted the certification.”
20 C.F.R. § 656.30(b)(1). There is no dispute that Mutasa’s resubmission
occurred more than 180 days after her employer received the certification. The
issue is whether the Service must approve a resubmitted I-140 petition based
on a previously filed labor certification when that certification was first
submitted during its initial 180-day validity period. In other words, Mutasa
contends that because her certification was first submitted within the 180-day
period, its validity was “effectuated” for longer-term use such that she could
use it in support of her later-submitted petition. (Opp. at 20.)
The Service argues that, because it rejected Mutasa’s initial submission,
the certification was never “filed” within the 180-day period. (Mot. at 7.) The
certification regulation does not define “filed.” But the visa regulations explain
that “[a] petition is considered properly filed if it is: (1) Accepted for processing
under the provisions of part 103; [and] (2) Accompanied by any required
individual labor certification.” 8 C.F.R. § 204.5(a) (emphasis added); see
Sanjour v. EPA, 56 F.3d 85, 88–89 (D.C. Cir. 1995) (en banc) (related
regulations from different agencies should be construed together). Relatedly,
the visa regulations provide that “[a] benefit request which is rejected will not
retain a filing date.” Id. § 103.2(a)(7)(ii).
I agree with the Service here; Mutasa’s initial submission was not
“properly filed” because it was never “[a]ccepted for processing,” id.
§ 204.5(a)(1), and therefore did not “retain a filing date,” id. § 103.2(a)(7)(ii).
Rather, the Service rejected it as incomplete. As a result, her labor certification
was not “filed in support of a Form I-140 petition” because no petition was
every filed. 20 C.F.R. § 656.30(b)(1). Indeed, the rejection notice specifically
provided that it was returning, not retaining, the labor certification, so it is
clear it was never filed with the Service. (Rejection at 1 (“The petition type you
are requesting requires the submission of a valid Labor Certification per the
form instructions. As such, your petition and supporting documentation are
being returned to you.”).)9
If the text of the regulation were not enough, the regulation’s purpose
also supports the Service’s application here. The 180-day validity period
“ensures that the snapshots of the labor market taken when labor certifications
are approved are not stale appraisals of the labor market when the visa
petitions are filed.” Durable Mfg. Co. v. U.S. Dep’t of Labor, 578 F.3d 497, 502

9 The Complaint alleges that the Service’s denial was contrary to the underlying
statute. (Compl. ¶ 53.) Mutasa, however, does not pick up this line of argument in her
brief. Regardless, it is unavailing.
The EB-3 statutory provision states that an EB-3 visa “may not be issued to an
immigrant . . . until the consular officer is in receipt of a [labor certification].” 8
U.S.C. § 1153(b)(3)(C). The Complaint alleges that the Service was “in receipt” of the
certification by virtue of her first submission. (Compl. ¶ 53.)
That is incorrect as a matter of law and fact. First, “in receipt” is ambiguous; it
could mean received by the Service generally or, more specifically, accepted for filing.
Accordingly, the Service could promulgate rules creating a filing process as a means to
flesh out “in receipt.” See Chevron, USA, Inc. v. Nat. Res. Def. Council, 467 U.S. 837,
842–43 (1984). Second, the Service physically returned the certification when it
rejected Mutasa’s first petition, so it was never “in receipt” of the certification then.
(7th Cir. 2009); see also Labor Certification for the Permanent Employment of
Aliens in the United States; Reducing the Incentives and Opportunities for
Fraud and Abuse and Enhancing Program Integrity, 72 Fed. Reg. 27,904,
27,924 (May 17, 2007) (codified at 20 C.F.R. Pt. 656) (explaining purposes of
rule); 8 U.S.C. § 1182(a)(5)(A)(i)(I) (underlying statute providing that DOL must
certify that the supply of workers is insufficient “at the time of application for a
visa and admission to the United States”). Were certifications considered filed
and thereby evergreen, even when submitted with a faulty visa petition, then
petitioners could lodge certifications with the Service but follow up with a
finalized petition at some indefinite time, perhaps far in the future. Such a
practice runs counter to a scheme where DOL and the Service require
certifications and petitions to be filed together within 180 days so that any
granted visas respond to current labor markets.
DOL’s underlying reasons for the 180-day period also undermine
Mutasa’s allegations that the result here is “inequitable.” (Compl. ¶ 55.) It is
here, by the way, that we understand the true source of her predicament. She
and her employer had 180 days to submit the petition; they filed it on day 171,
leaving little or no margin for error. DOL advisedly established a generous 180-
day period (as opposed to a proposed 45-day period) for the very purpose of
providing applicants adequate time to get their paperwork straight: to “provid[e]
sufficient flexibility for contingencies in the employment-based immigration
process.” Labor Certification, 72 Fed. Reg. at 27,924. DOL contemplated
situations like Mutasa’s, in which mistakes or delays could run out the clock.
See id. Accordingly, DOL concluded that 180 days would be sufficient time to
get a petition together, submit it, and iron out any issues that arose. See id.
That could have happened here. Mutasa’s employer, however, left little time for
delays or mishaps, and thereby took on the risk of the application’s need to be
corrected.
So, at the very least, the equities are not all on one side. Mutasa and her
employer bear some responsibility for acting contrary to the regulatory scheme.
Mutasa’s Counter Sources
In response, Mutasa leans on two agency materials which she contends
show that the Service should have considered the certification she filed with
her first submission. (Opp. at 20, 22.) First, she cites the Adjudicator’s Field
Manual published by the Service to guide employees adjudicating applications.
USCIS, Adjudicator’s Field Manual § 1.1 (hereinafter “AFM”). Second, she relies
on an unpublished opinion from the Administrative Appeals Office (“AAO”), an
appellate body that hears appeals of certain petition denials. 8 C.F.R.
§ 103.3(a)(1).
At the threshold, neither source has the force of law, and they cannot
overcome any contrary regulatory text. See Zizi v. Bausman, 306 F. Supp. 3d
697, 704 (E.D. Pa. 2018) (AFM) (citing Lawrence v. City of Philadelphia, 527
F.3d 299, 316 n.6 (3d Cir. 2008)); Chursov v. Miller, No. 18-cv-2886, 2019 WL
2085199, at *7 (S.D.N.Y. May 13, 2019) (unpublished AAO decisions); Pulotov
v. USCIS, Civ. No. 16-6067, 2018 WL 934612, at *8 (E.D. Pa. Feb. 16, 2018)
(same). Further, even if the regulatory text were ambiguous (it is not),
interpretations contained in the AFM or an unpublished AAO decision would
not receive deference. See Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019) (agency
interpretations of ambiguous regulations receive deference only if, among other
things, they come from “vehicles[] understood to make authoritative policy”);
Cruz-Miguel v. Holder, 650 F.3d 189, 200 (2d Cir. 2011) (AFM not such a
source); Chursov, 2019 WL 2085199, at *7 (unpublished AAO opinions not
such a source).
Even setting aside those threshold concerns, and assuming that such
materials could be relevant to arbitrary-and-capricious review, I find they do
not help Mutasa.
a. AFM
The AFM states that the Service “will reject Form I-140 petitions . . . if
the labor certification has expired” but notes an “[e]xception,” upon which
Mutasa relies. AFM § 22.2(b)(3)(F)(i). The exception provides as follows:
[The Service] will continue to accept amended or duplicate Form I-
140 petitions that are filed with a copy of a labor certification that
is expired at the time the amended or duplicate Form I-140
petition is filed, if the original labor certification was submitted in
support of a previously filed petition during the labor certification’s
validity period.
Id. This guidance only applies to “previously filed petitions.” Id. (emphasis
added). As explained above, Mutasa’s petition was never “filed.”
Moreover, relevant examples do not encompass Mutasa’s situation. The
AFM lists situations in which such amended filings “may occur”:
• A new petition is required due to a successor-in-interest employer
change;
• The petitioning employer wishes to file a new petition subsequent
to the denial, revocation or abandonment of the previously filed
petition, and the labor certification was not invalidated due to
material misrepresentation or fraud relating to the labor
certification application;
• An amended petition is filed to request a different visa
classification than the visa classification requested in the
previously filed petition; or
• The previously filed Form I-140 petition has been determined to
have been lost by [the Service] . . . .
Id. The first, third, and fourth scenarios clearly do not apply here. The second,
upon initial reading, seems to have some potential; but Mutasa’s second
petition was not filed following a “denial, revocation or abandonment” of her
first petition—it was filed following a rejection, pursuant to which it was not
filed at all.
Accordingly, the AFM does not suggest that the Service misapplied the
regulatory text here. Nor does the AFM provide a general policy that the Service
departed from such that the Service could be found to have acted in an
arbitrary and capricious way.
b. AAO Opinion
The AAO opinion is also unavailing. In In re: [Redacted], a petitioner filed
a petition with a valid labor certification, but the petition was denied because
the petitioner sought (mistakenly, it seems) a visa that did not correspond to
the specific labor certification. 2013 WL 5722861, at *1 & n.1 (AAO Feb. 5,
2013). The AAO held that a subsequent correct petition should be granted,
even though it was filed more than 180 days after the labor certification was
issued, because the certification had been “used in support of a Form I-140
petition which was filed . . . less than 180 days from the . . . certification date.”
Id. at *1. The certification, the AAO explained, “did not expire and was available
for use in support of the present petition.” Id.
That case is distinguishable because the first petition was accepted for
filing but denied on the merits. Indeed, the opinion explicitly states that the
first petition was “filed.” Id. Here, we deal with a rejection that prevented the
petition and certification from being “filed” upon the first submission.
A more recent AAO opinion confirms as much. In Matter of P-C-, a
petitioner submitted a certification and an outdated I-140 form. 2019 WL
4879259, at *1 (AAO Sept. 16, 2019). The petition was “rejected,” and the
petitioner resubmitted the materials with the correct form, but by then the
certification was older than 180 days. Id. The AAO explained that the second
submission could be denied because, under the regulations, the certification
was not “filed” within its 180-day validity period, since the first submission was
rejected. Id. In that respect, the facts of P-C- are indistinguishable from those in
Mutasa’s case. Accordingly, based on these two AAO opinions, the Service has
consistently applied the regulations, as it also did here, making its actions
reasonable. See Kisor, 139 S. Ct. at 2418 (courts should not defer to agency
interpretation of regulations if the interpretation conflicts with prior ones).
* * *
In sum, the Service’s denial was supported by the regulations and
reasonable. As such, Mutasa cannot state an APA claim based on the denial.
IV. CONCLUSION
For the reasons set forth above, the Service’s motion to dismiss is
granted.
A separate order will issue.
Dated: March 31, 2021

/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654911. Public record. Not legal advice.