First Circuit Finds no Jurisdiction to Review NIW Revocation

The U.S. Court of Appeals for the First Circuit has ruled that federal courts lack jurisdiction to review the revocation of an approved National Interest Waiver (NIW) and the underlying Form I-140 immigrant petition. However, the decision, issued in Guedes v. Mayorkas, also highlights the broad discretionary authority granted to U.S. Citizenship and Immigration Services (USCIS) under the Immigration and Nationality Act (INA).

Background of the Case

The case involved Viana Guedes, a Brazilian physician who entered the United States with her family and later sought lawful permanent residence through the employment-based immigration system. Guedes filed a Form I-140 immigrant petition under the EB-2 category and requested a National Interest Waiver, which allows certain professionals to obtain a green card without a job offer if their work benefits the United States.

USCIS initially approved the I-140 petition and the NIW. Guedes and her family then applied for adjustment of status to become lawful permanent residents. However, USCIS later revoked the approval and denied the family’s adjustment of status applications. The family filed a lawsuit in federal district court challenging the agency’s actions and arguing that the revocation was unlawful. 

The District Court Decision

The U.S. District Court dismissed the lawsuit for lack of subject-matter jurisdiction. The court concluded that federal law limits judicial review of certain immigration decisions, particularly those that are committed to the discretion of immigration authorities.

The plaintiffs appealed the dismissal to the First Circuit Court of Appeals, arguing that the revocation of the NIW and I-140 petition should be subject to judicial review.

The First Circuit’s Ruling

The First Circuit affirmed the district court’s decision. The court held that the Immigration and Nationality Act bars federal courts from reviewing certain discretionary immigration decisions made by the executive branch.

Specifically, the court relied on 8 U.S.C. §1252(a)(2)(B), which states that courts do not have jurisdiction to review decisions that Congress has committed to agency discretion. The statute applies to immigration decisions made by the Secretary of Homeland Security or the Attorney General when the law grants them discretionary authority. 

The court determined that the revocation of an approved visa petition under INA §1155 and the revocation of a National Interest Waiver are discretionary decisions. Because these actions fall within the discretion of immigration authorities, federal courts generally cannot review the merits of those decisions. 

Relationship to Supreme Court Precedent

The First Circuit’s analysis also reflects recent Supreme Court precedent emphasizing the limited scope of judicial review in immigration matters. Courts have increasingly interpreted the INA as giving immigration authorities significant discretion in adjudicating visa petitions and related benefits.

Under these interpretations, courts generally cannot review discretionary immigration decisions unless Congress has clearly authorized such review.

Implications for EB-2 National Interest Waiver Applicants

The ruling underscores that approval of an immigrant visa petition—including an EB-2 National Interest Waiver—does not permanently guarantee immigration benefits. USCIS retains authority to revisit previously approved petitions and revoke them if it determines that the approval was granted in error or if “good and sufficient cause” exists.

If USCIS revokes an approved petition, the ability to challenge the decision in federal court may be limited. In many situations, the primary options available to petitioners involve administrative remedies within the agency, such as filing a motion to reopen or reconsider.

Conclusion

The First Circuit’s decision in Guedes v. Mayorkas reinforces the broad discretionary authority granted to immigration agencies under federal law. Because revocation of an NIW and I-140 petition is considered a discretionary decision, federal courts generally lack jurisdiction to review such actions. For applicants pursuing employment-based immigration benefits, the case highlights the importance of presenting strong and well-documented evidence throughout the immigration process.