87 F.4th 963
9th Cir.2023Background
- Plaintiffs are long‑time lawful noncitizen residents from India with employer‑sponsored, approved EB‑2 immigrant petitions and priority dates (2012–2014) that were "current" when they filed adjustment‑of‑status applications with USCIS.
- The State Department initially projected visas were available, but shortly before USCIS adjudication it revised estimates and announced EB‑2 India visa retrogression, making plaintiffs’ priority dates no longer current.
- USCIS follows 8 C.F.R. § 245.2(a)(5)(ii), which requires an immigrant visa number to be allocated by the State Department before approval of an employment‑based adjustment application.
- Plaintiffs sued under the APA and sought TROs/preliminary injunctions to bar USCIS from considering visa availability (i.e., to compel final adjudication irrespective of current visa allocations).
- District courts denied emergency relief; the Ninth Circuit consolidated appeals and reviewed denial of injunctive relief and statutory interpretation de novo where applicable.
- The court affirmed: plaintiffs are unlikely to succeed on the merits because the regulation is consistent with 8 U.S.C. § 1255 and reasonably fills a procedural gap left to the agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of 8 C.F.R. § 245.2(a)(5)(ii): whether USCIS may require a visa number to be allocated at approval (not just be available at filing) | Regulation conflicts with 8 U.S.C. § 1255(a), which only requires a visa be "immediately available" at filing; thus visa availability at adjudication is not required | § 1255(a) vests discretion to issue regulations; the statute is silent on timing of allocation, so regulation reasonably fills that procedural gap | Court held the regulation is consistent with § 1255 and reasonable; plaintiffs unlikely to succeed on the merits |
| Role of statutory text, structure, and history: whether legislative changes or other INA provisions refute the regulation | Historical changes and related provisions (e.g., CSPA, § 1255(b)) imply Congress intended that visa availability at filing suffices | The statute’s text and structure do not preclude allocation‑at‑approval; Congress left process details to the Attorney General/agency; longstanding regulatory practice plus Congressional silence support the regulation | Court rejected plaintiffs’ statutory‑history and structural arguments; regulation permissible |
| Appealability / jurisdiction over TRO denials | Plaintiffs treated district court denials as effectively denying longer injunctive relief and appealed | Government challenged appealability of TRO denials, but courts may review where denial is tantamount to denying a preliminary injunction and parties had notice/briefed the motions | Court found appellate jurisdiction over the consolidated appeals and proceeded to the merits |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of success on the merits)
- Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) (distinguishes visa‑number eligibility from timing of allocation at approval)
- Ruiz‑Diaz v. United States, 618 F.3d 1055 (9th Cir. 2010) (agency has leeway to regulate procedural process left to it by statute)
- Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014) (processing of visa queues and priority date principles)
- Tovar v. Sessions, 882 F.3d 895 (9th Cir. 2018) (employment‑based visa queue processed first‑come, first‑served)
- INS v. Miranda, 459 U.S. 14 (1982) (statutory context concerning visa petitions and adjustment eligibility)
- Haig v. Agee, 453 U.S. 280 (1981) (Congressional silence can imply tacit approval of longstanding agency practice)