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Spirit of AC21 Act Should Be Followed, Rules 2nd Cir.

By Jonathan R. Tung, Esq. | Last updated on

In an immigration employment decision that could have far reaching impacts, the Court of Appeals for the Second Circuit ruled that the legislative attempts to hasten H-1B "portability" for immigrants continues to be stymied by bureaucracy even 15 years after passing the American Competitiveness in the 21st Century Act.

According to the Second Circuit's ruling, leaving one's immigration status squarely in the hands of a disinterested employer is inimical to the act's purpose.


The plaintiff, Ganga Mantena, entered the United States to work as a skilled technician at a New Jersey based company, VSG. Approximately one year after starting her job, her boss pled guilty to mail fraud in connection with filing an immigration petition on behalf of some other employee. As a result of the guilty plea, the U.S. Citizenship and Immigration Service revoked all pending petitions of employees at VSG. However, the USCI notified VSG only, even though it was in the process of shutting its doors.

The plea of Mantena's bossd had the effect of jeopardizing her quest for permanent residency, though she did not know it. By the time she was aware of the gravity of her situation, authorities had denied her petition for permanent residence. She sued in federal court, accusing immigration officials and Homeland Security for violating her constitutional rights of due process.

Mercy of the Circuit Court

By the tone of the opinion, it was clear that the court was sympathetic to Mantena's plight, not necessarily because of her personally, but because her situation was all too familiar. The Immigration and Nationality Act essentially gives the Department of Homeland Security final say in denials or approvals, skirting even federal courts. However, the court noted, the process by which DHS arrives at its decision may still be questioned.

The Second Circuit sought to carry out what it thought to be the intended goal of Congress: benefit employees and employers mutually. The portability provisions were enacted in order to offer a means of employers to hire skilled foreign workers -- hence "competitiveness in the 21st century." The court found that the notification procedures that rely on the second hand notification of a disinterested employer did not square with the intended purpose of the AC21 Act.

The court's ruling seemed to meet the approval of American Immigration Council lawyer Leslie Dellon: "Congress made this possible so you're not locked into your first employer," she said.

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