• IRLI Staff

In the Matter of Standing

IRLI submitted a friend-of-the-court brief (attached here) at the request of the U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) addressing whether the beneficiaries of certain immigrant visa petitions have standing to participate in the administrative adjudication process, including standing to appeal to the AAO (and if so, when, and under what circumstances). The standing doctrine requires any person who wishes to participate in a lawsuit to show that they have suffered a personal injury fairly traceable to the other party’s allegedly unlawful conduct and that a decision by the court will likely cure that harm. IRLI complied with AAO’s request and filed a brief on May 22, 2015.

In its brief, IRLI reminded the AAO that an alien does not have a fundamental liberty or property interest protected by constitutional due process in the labor certification or employment-based immigrant visa, for which the petitioning employer has applied on his or her behalf. IRLI noted that the Supreme Court affirmed in Lexmark the “irreducible constitutional minimum” elements of Article III constitutional standing: An injury-in-fact, causation, and redressability. IRLI further noted that even though the court withdrew the zone-of-interest test from prudential standing analysis, the High Court still found it to be an element of the case on the merits. The zone-of-interest test requires that the plaintiff be arguably within the zone of interests to be protected or regulated by the statute that he says was violated.

IRLI concluded that, after Lexmark, the zone-of-interest test constitutes a more significant barrier to AAO and federal district court subject matter jurisdiction because it is a general and non-waivable prerequisite. In light of Lexmark, IRLI predicted that AAO will in the future dismiss significantly fewer challenges to visa denials or revocations on lack of prudential standing. The Article III standing hurdles, however, will remain as practical barriers. Most significantly, any drop in dismissals on standing grounds should be more than offset by the legislative intent of the zone-of-interest test for Immigration and Nationality Act (INA) employment-based immigration, as repositioned by the Supreme Court in Lexmark. The INA-based zone-of-interests—with its primary congressional objective of protecting the hiring preferences and working conditions of American workers and secondary objective of regulating access to certified foreign labor for U.S. employers where able and willing U.S. workers are not available—should assume a reinvigorated role in the USCIS adjudication process.

IRLI is a supporting organization of the Federation for American Immigration Reform.

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