540 F.Supp.3d 240
E.D.N.Y.2021Background
- U nonimmigrant (U) visas provide temporary lawful status and employment authorization to crime victims who assist law enforcement; Congress capped new U visas at 10,000 per year, creating a waitlist for eligible applicants who cannot immediately receive visas.
- USCIS processes U petitions in stages: (1) filed but not reviewed (no EAD); (2) petition found “bona fide” but not adjudicated (statutory §1184(p)(6) authorizes discretionary EADs for pending bona fide petitions); (3) approved but waitlisted (regulatory discretion to grant EADs); (4) U visa issued (automatic EAD).
- Prior 8 C.F.R. §274a.13(d) (effective until Jan. 17, 2017) required USCIS to adjudicate EAD applications within 90 days and to grant interim EADs if it failed to do so; that deadline was repealed in January 2017.
- Plaintiffs filed U petitions and concomitant EAD requests between Aug. 2015 and Jan. 2018; they allege systemic USCIS delay (processing to waitlist ≈4+ years, large backlog) and seek declaratory, injunctive, and mandamus relief to obtain EADs, prompt eligibility adjudications, and interim EADs for pre-Jan.17.2017 applicants.
- Defendants moved to dismiss for lack of jurisdiction, improper venue, and failure to state a claim; they also sought transfer to D.C. (later Maryland was suggested). The court resolved mootness, venue/transfer, reviewability of discretionary action, unreasonable-delay claims, and the effect of the repealed 90‑day regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of plaintiffs N‑N and G‑V‑R | Their claims should remain because they are putative class representatives | Their individual claims are moot because USCIS adjudicated their petitions and granted EADs | Claims of N‑N and G‑V‑R are moot and dismissed; class‑rep status alone does not preserve moot individual claims absent certification |
| Venue and transfer | EDNY is proper (plaintiff N‑N resided here at filing) | Transfer to D.C. (or Maryland) is appropriate given agency location and witnesses | Venue proper in EDNY as of filing; transfer denied (government failed to show clear, convincing need to transfer) |
| Counts II & V — pre‑waitlist “bona fide” determinations and EADs (8 U.S.C. §1184(p)(6)) | USCIS must decide whether pending petitions are “bona fide” and adjudicate EADs—failure is reviewable under the APA/mandamus | The statute’s “may grant” and undefined “bona fide” leave the decision to agency discretion and thus not judicially reviewable | The word “may” and the indeterminate phrase “bona fide” do not create a specific statutory standard under St. Cyr; the decision is committed to agency discretion — Counts II and V dismissed for lack of reviewability |
| Counts I & IV — delay in adjudicating eligibility for waitlist (8 C.F.R. §214.14(d)(2)) | USCIS unreasonably delayed required adjudications to place eligible petitioners on the waitlist; mandamus and APA relief warranted | Agency must determine eligibility but processing priorities and the statutory cap and first‑in, first‑out practice make delays reasonable; judicial reordering of priorities is inappropriate | Court has jurisdiction because the regulation imposes a nondiscretionary duty to determine eligibility, but applying TRAC factors the delays are not unlawfully unreasonable; Counts I and IV dismissed |
| Counts III & VI — failure to issue interim EADs under former 8 C.F.R. §274a.13(d) (pre‑Jan.17,2017 applicants) | The pre‑2017 regulation plainly required adjudication within 90 days and issuance of interim EADs when USCIS missed the deadline; those applicants vested rights | USCIS interpretation: 90‑day clock only after threshold eligibility/waitlist determination; or, new 2017 rule should be applied retroactively | Former §274a.13(d) unambiguously required adjudication within 90 days from receipt; plaintiffs whose EADs had been pending >90 days as of Jan.17,2017 vested under the old rule — Counts III and VI survive for that subclass (except O‑D‑B, whose application had not reached 90 days) |
Key Cases Cited
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (APA compels only action legally required; delay of discretionary action is not remediable under §706(1))
- INS v. St. Cyr, 533 U.S. 289 (2001) (when statute supplies specific eligibility standards, there is a right to a ruling even if grant of relief is discretionary)
- Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (TRAC factors for assessing unreasonable agency delay)
- Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (no categorical time‑limit; reasonableness depends on task complexity and resources)
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency decisions to refuse enforcement are presumptively unreviewable)
- Gonzalez v. Cuccinelli, 985 F.3d 357 (4th Cir. 2021) (§1184(p)(6) confers discretionary authority; no mandate to adjudicate pre‑waitlist EAD claims)
- Uranga v. U.S. Citizenship & Immigration Servs., 490 F. Supp. 3d 86 (D.D.C. 2020) (interpreting §1184(p)(6) and former §274a.13(d); similar conclusions on reviewability and vested rights)
- Patel v. Cissna, 400 F. Supp. 3d 1373 (M.D. Ga. 2019) (concluding “bona fide” is not a specific statutory standard and §1184(p)(6) is discretionary)