N-N v. Mayorkas

• Decision Date: 18 May 2021
• Docket Number: 19-CV-5295(EK)
• Citation: 540 F.Supp.3d 240
• Parties: N-N, et al., Plaintiffs, v. Alejandro MAYORKAS, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

540 F.Supp.3d 240

N-N, et al., Plaintiffs,

v.Alejandro MAYORKAS, et al., Defendants.

19-CV-5295(EK)

United States District Court, E.D. New York.

Signed May 18, 2021

Mark Douglas Colley, Pro Hac Vice, Arnold & Porter, Washington, DC, Matthew D. Grant, Arnold & Porter LLP, New York, NY, for Plaintiffs.

Joseph Anthony Marutollo, Alex Scott Weinberg, U. S. Attorney's Office, Brooklyn, NY, for Defendants Secretary of DHS Chad F. Wolf, Acting Director Kenneth Cuccinelli, Associate Director, Donal Neufeld.

Alex Scott Weinberg, U.S. Attorney's Office, E.D.N.Y., Brooklyn, NY, for Defendants William P Barr, U.S. Attorney's Office for the Eastern District of New York and Certain Unidentified Agents.

MEMORANDUM & ORDER

ERIC KOMITEE, United States District Judge:

Plaintiffs are petitioners for "U nonimmigrant status," which is available to victims of certain types of crimes who assist U.S. law enforcement. They bring suit against the Secretary of Homeland Security, the Director of U.S. Citizenship and Immigration Services ("USCIS"), and others, challenging agency delays in adjudicating their visa applications and associated applications for employment authorization. Plaintiffs seek declaratory, injunctive, and mandamus relief directing USCIS to adjudicate their requests for employment authorization, adjudicate their eligibility for U visas, and issue interim employment authorization documents to those who submitted applications before January 17, 2017.

I. Statutory and Regulatory Background

Congress established the U visa program as part of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464, which amended the Immigration and Nationality Act ("INA"). The visa is available to victims of specified crimes who cooperate with law enforcement authorities in the investigation or prosecution of those crimes. See 8 U.S.C. § 1101(a)(15)(U). The purpose of the program is to "strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and [certain] other crimes ..., while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States." Pub. L. 106–386 at § 1513(a)(2)(A).

A U visa serves two purposes. First, it accords the applicant lawful temporary resident status. Second, it authorizes the applicant to work in the United States during the life of the U visa. Importantly, however, receipt of a U visa is not the only means to obtain these benefits. As set out below, the relevant statutes and regulations contemplate certain alternative pathways for applicants to secure employment authorization before receiving a U visa. It is the administration of these interim alternatives (or the lack of such administration) that Plaintiffs challenge here.

To begin the application process for a U visa, a petitioner must complete a Form I-918 Petition for U Nonimmigrant Status. See USCIS Form I-918, Instructions for Petition for U Nonimmigrant Status and Supplement A, Petition for Qualifying Family Member of U-1 Recipient.¹ The petition must include two certifications: one signed by the petitioner, describing the criminal activity to which they fell victim; and the other signed by a law enforcement officer or similar official, attesting to the petitioner's cooperation. 8 C.F.R. § 214.14(c)(2)(i), (iii). USCIS's Vermont and Nebraska Service Centers are jointly responsible for processing U visa petitions.²

USCIS regulations provide that when a U visa petition is submitted, the agency will complete a "de novo review of the petition and evidence," and "issue a written decision approving or denying Form I-918." 8 C.F.R. § 214.14(c)(5). "If USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant status, USCIS will approve Form I-918." 8 C.F.R. § 214.14(c)(5)(i). The petitioner will then receive lawful nonimmigrant status and employment authorization for up to four years. 8 U.S.C. § 1184(p)(3)(B), (p)(6) ; 8 C.F.R. § 274a.12(a)(19).

As relevant here, the petition for a U visa proceeds through four stages. These stages are the product of multiple statutory and regulatory pronouncements, as discussed below. A petitioner's entitlement to employment authorization (or the lack thereof) varies by law at each stage. The stages can be summarized as follows:

Stage One: Application filed, but not yet reviewed. After a petitioner files a U visa application, but before USCIS review has begun, the petitioner remains ineligible for employment authorization. USCIS reviews petitions on a first-in, first-out basis, so there is a delay between the time of application and review. During this review, the petitioner is still vulnerable to removal, but may be granted — as a matter of discretion — a stay of removal pursuant to 8 C.F.R. § 241.6(a) and 8 C.F.R. § 1241.6(a).

Stage Two: Petition determined to be "bona fide," but not yet adjudicated. In 2008, Congress adopted 8 U.S.C. § 1184(p)(6), which conferred certain authority on USCIS to issue employment authorization to U visa applicants while they await a determination of their petitions. See Pub. L. 110-457, 122 Stat. 5044. Specifically, Section 1184(p)(6) provides, in relevant part, that "the Secretary [of Homeland Security] may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title."

Congress did not, however, define what constitutes a "bona fide" application, and USCIS has issued no implementing regulations under this part of the statute. E.g. , Uranga v. U.S. Citizenship & Immigr. Servs. , 490 F. Supp. 3d 86, 100 (D.D.C. 2020). Nor does USCIS evaluate, in practice, whether pending applications are "bona fide." Consequently, applicants do not receive employment authorization documents ("EADs") at this stage, even though the agency has discretion to issue them. Instead, the agency considers whether to grant an EAD to a U visa petitioner only after the petition has been processed and reviewed and a petitioner is determined eligible. See Complaint ¶ 55, ECF No. 1 ("Compl.").

Stage Three: Waitlist. Even after USCIS reviews a petition and determines that the petitioner is eligible, the U visa does not issue immediately. This is because in 2008, Congress imposed a statutory cap of 10,000 new U visas that may be issued per year. See 8 U.S.C. § 1184(p)(2)(A). Individuals who are determined by USCIS to be eligible for a U visa but do not receive one "due solely to the cap" are placed on a waitlist and granted "deferred action" for immigration purposes.³ 8 C.F.R. § 214.14(d)(2). Applicants on the waitlist do become eligible for EADs: USCIS has adopted a regulation providing that the agency "in its discretion, may authorize employment for [wait-listed] petitioners and qualifying family members." Id. This is the first stage at which USCIS currently issues EADs to U visa applicants.

Stage Four: U visa issued. A petitioner who is approved for and issued a U visa receives lawful nonimmigrant status for up to four years, with the potential for an extension in certain cases. See 8 U.S.C. § 1184(p)(6). The U visa holder is also statutorily entitled to an EAD incident to their status. See 8 U.S.C. § 1184(p)(3)(B) ("[T]he Attorney General shall, during the period those aliens are in lawful temporary resident status under [the U visa program], provide the aliens with employment authorization."). USCIS regulations require this employment authorization to issue "automatically." 8 C.F.R. § 214.14(c)(7).

A. The 2017 Regulatory Repeal

Importantly, the background regulations governing USCIS's obligation to review EAD applications changed during the period covered by the Complaint. Plaintiffs read a prior version of 8 C.F.R. § 274a.13 — which was effective until January 17, 2017 — to have required USCIS, in certain circumstances, to issue EADs before deciding U visa eligibility, if the agency could not (or did not) render a U visa determination quickly enough. That prior regulation provided that "USCIS will adjudicate the [EAD] application within 90 days from the date of receipt of the application," and that "[f]ailure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days." 8 C.F.R. § 274a.13(d) (repeal effective January 17, 2017).⁴ While this regulation was in effect, a petitioner seeking a U visa could simultaneously request an EAD simply by checking "yes" where prompted on the I-918 Form. The regulation was revised effective January 17, 2017, however, and no longer includes any specific time period for adjudication of applications for EADs.

II. Factual Background and Plaintiffs’ Contentions

The following facts are taken from the Complaint and presumed to be true unless otherwise stated. Plaintiffs filed U visa petitions and accompanying applications for EADs between August 2015 and January 2018, but USCIS has not yet adjudicated those petitions.⁵ The thirteen named Plaintiffs seek to represent a class of similarly situated U visa petitioners that they estimate "exceeds 100,000 individuals." Compl. ¶ 140.

The number of petitioners determined to be eligible for U visas each year regularly exceeds the statutory cap. Id. ¶ 29. Plaintiffs allege that USCIS has nevertheless cut the annual number of waitlist adjudications, causing the number of pending (pre-waitlist) U visa petitions to "balloon[ ] from just over 25,000 in fiscal year 2014 to over 125,000 in fiscal year 2018." Id. ¶ 49. As a result, the processing time for a U visa petition for placement on the waitlist now exceeds four years. Id. ¶ 44. This, in turn, prolongs the time that it takes for a petitioner to become eligible to receive an EAD — i.e., to move from Stage Two to Stage Three in the taxonomy above — because USCIS does not adjudicate requests for EADs until the petitioner has been approved and placed on the...