Opinion
CASE NO. 1:06-CV-1338.
February 28, 2007
OPINION AND ORDER [Resolving Docs. 8, 9, 15 16.]
On May 31, 2006, Plaintiffs Gavril and Veronica Budai filed a Petition for Writ of Mandamus. [Doc. 1.] Plaintiffs sought an order from the Court "requiring Defendants to adjudicate Plaintiffs' application for adjustment of status."
Applying for an employment-based adjustment of status is a three-step process. Plaintiffs successfully completed the first two stages of this process. On July 11, 2002, the Department of Labor approved Creative Stone's Application for Employment Certification on behalf of Gavril Budai, the first step in the employment-based adjustment of status process. On February 6, 2003, the U.S. Immigration and Naturalization Service ("INS") approved Creative Stone's Immigrant Petition for Alien Worker on behalf of Gavril and Veronica Budai, the second step in the employment-based adjustment of status process. On September 2, 2003, Plaintiffs filed Applications to Register Permanent Residence or Adjust Status with the INS, the third and final step in the adjustment of status process. Prior to the filing of this case, Plaintiffs alleged that virtually no action had been taken to adjudicate their Applications to Register Permanent Residence or Adjust Status for over two years.
On August 14, 2006, the defendants filed a Motion to Dismiss, or in the alternative Motion to Remand to USCIS. [Doc. 8.] On August 16, 2006, Plaintiffs filed a Memorandum in Opposition to the Motion to Dismiss. [Doc. 9.]
On November 17, 2006, the Court held a Case Management Conference. [Doc. 13.] At this conference, the parties informed the Court that on November 16, 2006, the United States Immigration and Citizenship Service ("USCIS") had issued a Notice of Intent to Revoke Creative Stone's previously approved Immigrant Petition for Alien Worker filed on behalf of Gavril and Veronica Budai. This approved Immigrant Petition for Alien Worker was a necessary underlying requirement that permitted adjudication of Plaintiffs' Applications to Register Permanent Residence or Adjust Status.
The plaintiffs advised the Court that they would oppose revocation of the previously approved Immigrant Petition for Alien Worker. Plaintiffs provided the Court with a courtesy copy of their Response to the Notice of Intent to Revoke, dated December 15, 2006. On February 2, 2007, the plaintiffs filed a Motion to Continue Deadline for Submission of Stipulated Record until the USCIS had issued a final decision regarding the Notice of Intent to Revoke. [Doc. 15.]
Both parties have now informed the Court that the USCIS has revoked Creative Stone's previously approved Immigrant Petition for Alien Worker filed on behalf of the plaintiffs. Additionally, on February 15, 2007, Plaintiffs' counsel, Olga Y. Zullig, filed a Motion to Withdraw Appearance as Counsel. [Doc. 16.]
Given that the USCIS has issued a final decision revoking the Immigrant Petition for Alien Worker, Plaintiffs may have some right to appeal that decision through proper administrative channels. However, the plaintiffs' Applications to Register Permanent Residence or Adjust Status, which are the subject of the Petition for Writ of Mandamus in the instant case, are no longer ripe for adjudication before the USCIS.
As such, the Court DISMISSES the instant case without prejudice. Likewise, the Court DENIES AS MOOT Defendants' Motion to Dismiss, or in the alternative Motion to Remand to USCIS (Doc. 8); Plaintiffs' Motion to Continue Deadline for Submission of Stipulated Record (Doc. 15); and Plaintiffs' Motion to Withdraw Appearance as Counsel (Doc. 16).
IT IS SO ORDERED.