     Case: 12-40368       Document: 00512085340         Page: 1     Date Filed: 12/17/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 17, 2012

                                       No. 12-40368                        Lyle W. Cayce
                                                                                Clerk

GENE’S MACHINE, INCORPORATED; MARK WOOD; TRACY WOOD;
CRAIG WOOD; J.W.,

                                                  Plaintiffs-Appellants
v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
ALEJANDRO MAYORKAS; HILDA L. SOLIS; DAVID L. ROARK,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 6:11-CV-4


Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       The district court dismissed the complaint of Gene’s Machine, Inc. (“Gene’s
Machine”) and Mark Wood and the Wood family asserting that the defendant
government agencies and officials violated the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706, in denying an I-140 visa petition filed by Gene’s
Machine on behalf of Mark Wood, an alien Gene’s Machine seeks to employ.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     Case: 12-40368      Document: 00512085340        Page: 2     Date Filed: 12/17/2012



                                     No. 12-40368

Gene’s Machine appeals the district court’s dismissal of its claims challenging
a Department of Labor regulation, 20 C.F.R. § 656.30, which was amended in
2007 to provide that a labor certification granted after the effective date of July
16, 2007 expires if not filed with the Department of Homeland Security in
support of an I-140 visa petition within 180 days of the grant of certification, id.
§ 656.30(b)(1), or, as in the case of Gene’s Machine, that a labor certification
granted before the effective date expires if not filed in support of an I-140
petition within 180 days of the effective date, id. § 656.30(b)(2). Gene’s Machine
claims that the amended regulation does not comport with the text of the labor
certification statute, 8 U.S.C. § 1182(a)(5)(A), and is arbitrary and capricious.
The district court also held that Mark Wood and the Wood family, the intended
beneficiaries of the visa petition who asserted claims identical to those of Gene’s
Machine, lacked Article III standing.
       As to the claims of Gene’s Machine, we affirm the judgment of dismissal
for failure to state a claim essentially for the reasons given by the district court
in its well-reasoned opinion. Gene’s Mach., Inc. v. Dep’t of Homeland Sec., No.
6:11-CV-4, 2012 WL 1067557 (S.D. Tex. Mar. 28, 2012).1 Given the dismissal of
those claims, and because the claims of Mark Wood and the Wood family are the
same as those of Gene’s Machine, the question of the standing of Mark Wood and
the Wood family is moot.
       AFFIRMED.




      1
        Gene’s Machine asserted additional claims that were dismissed by the district court
but were not raised on appeal, including claims asserting violation of due process and
equitable tolling due to ineffective assistance of counsel. We express no opinion on those
claims.

                                            2
