Nakka v. U.S. Citizenship & Immigration Servs.

Decision Date27 January 2022
Docket Number3:19-cv-02099-YY
PartiesNAGENDRA KUMAR NAKKA, et al., Plaintiffs, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
CourtU.S. District Court — District of Oregon

FINDINGS AND RECOMMENDATIONS

Youlee Yim You United States Magistrate Judge

FINDINGS

Plaintiffs in this putative class action are a group of Indian nationals who have enjoyed long-term residency in the United States as beneficiaries of temporary work visas and who have been seeking permanent residency in the United States through employment-based immigration visas. The Second Amended Complaint (“SAC”) states that plaintiffs bring this action “to ensure that provisions of the Child Status Protection Act (“CSPA”) are applied equally to children regardless of the national origin of their parents.” SAC 2, ECF 31. Plaintiffs assert violations of equal protection under the Fifth Amendment and challenge defendants' interpretations of the CSPA under the Administrative Procedure Act (“APA”). See SAC 20-30, ECF 31.

Defendants United States Citizenship and Immigration Services (USCIS) and the United States Department of State (State Department) have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Mot. 16-35, ECF 36. For the reasons discussed below, defendants' motion to dismiss should be DENIED to the extent they claim lack of subject matter jurisdiction and GRANTED on the basis that plaintiffs have failed to state a claim for relief.

I. Statutory Framework

The Immigration and Nationality Act (“INA”), 8 U.S.C §§ 1101, et seq., regulates the “temporary admission of nonimmigrants for specific purposes.” Ray v. Cuccinelli, No 20-CV-06279-JSC, 2020 WL 6462398, at *1 (N.D. Cal. Nov. 3 2020). Under the INA, [d]omestic employers who seek to hire foreign nationals for specialty occupations must apply and secure for these potential employees a visa under 8 U.S.C. § 1101(a)(15)(H)(i)(B)-an ‘H-1B' visa.” Id. An H-1B visa holder's spouse and children are “entitled to derivative immigration status under 8 C.F.R. § 214.2(h)(9)(iv), and [are] commonly referred to as holding an ‘H-4' visa.” Id.

If an H-1B worker seeks to adjust status to lawful permanent residence (“LPR”), [1] that process is generally initiated by an employer who applies to the Department of Labor (“DOL”) for a labor certificate and then files Form I-140 Immigrant Petition for Alien Workers with USCIS to have the noncitizen worker classified into the appropriate employment preference category. See 8 U.S.C. §§ 1154(a)(1)(F), 1255(a)(2); 8 C.F.R § 204.5(a). The INA establishes five preference categories based on variables such as education and job skills: (1) priority workers; (2) professionals with advanced degrees or exceptional ability; (3) skilled workers and professionals; (4) special immigrants, including religious workers; and (5) foreign investors (commonly referred to as EB-1, EB-2, EB-3, EB-4, and EB-5, respectively). See 8 U.S.C. § 1153(b)(1)-(5). If USCIS approves the I-140 immigrant visa petition, the visa beneficiary may apply for LPR once an employment-based visa becomes “immediately available” to the worker in the appropriate category. See Mehta v. United States Dep't of State, 186 F.Supp.3d 1146, 1149 (W.D. Wash. 2016) (citing 8 U.S.C. § 1255)).

The INA imposes an annual limit of 140, 000 employment-based visas that are allocated by employment category and subject to the 7% “per-country limitation.” Id. (citing 8 U.S.C. §§ 1151, 1153(b), 1154(b)). When employment-based visas become available, they are issued to eligible workers in the order in which the workers' employers filed their I-140 petitions. 8 U.S.C. § 1153(e)(1). A visa beneficiary's “place in line” is determined by the date on which the worker's employer filed its I-140 labor certification application, which is known as the beneficiary's “priority date.” Mehta, 186 F.Supp.3d at 1149 (citing 8 C.F.R. § 204.5(d)).

To determine whether an immigrant visa is “immediately available, ” a beneficiary consults a monthly Visa Bulletin published by the State Department. See 8 C.F.R. § 245.1(g); Mehta, 186 F.Supp.3d at 1150. The Visa Bulletin is organized according to country of origin and visa preference category. Mehta, 186 F.Supp.3d at 1150. If there are sufficient visas available for all known applicants from a specific country and of a specific preference category, the “Worldwide Employment Final Action Dates” chart lists that combination as “current, ” and all applicants matching that combination may file an I-485 form regardless of their priority date. Id. If there are not enough immigrant visas available to meet demand, the Visa Bulletin publishes one or more country-specific charts, each with applicable cut-off dates, and only those applicants with priority dates earlier than the cut-off may file for an adjustment of status. Id. India, China, Mexico, and the Philippines, for example, are countries with high demand for employment-based immigrant visas; thus, the Visa Bulletin has, in recent years, published an Employment Final Action Dates chart specific to each country to show visa availability pursuant to 8 U.S.C. § 1153(b).

In July 2015, the “White House announced that it would revise the monthly Visa Bulletin to better estimate immigrant visa availability for prospective applicants, and to provide needed predictability to nonimmigrant workers seeking permanent residency.” Mehta, 186 F.Supp.3d at 1150. Starting in September 2015, the State Department published an additional “Dates for Filing Applications” chart and announced that USCIS would accept employment-based I-485 applications to adjust status based on the filing date listed in the “Dates for Filing” chart, in addition to the dates listed in the “Final Action Dates” chart. See Id. at 1150-51. USCIS instructs potential applicants to [c]heck the [State Department] Visa Bulletin” each month because [i]t will explain” which chart to use to determine when applicants can file for adjustment of status. Id. The Dates for Filing chart “provides a mechanism to reduce further administrative delay by informing applicants when they can file their papers to ensure timely issuance of visas when they become available.” Lin Liu v. Smith, 515 F.Supp.3d 193 (S.D.N.Y 2021).

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act (“AC21”), Pub. L. No. 106-313 (2000), as amended by Pub. L. No. 107-213, § 11030A (2002) (codified at 8 U.S.C. § 1184 note). Under the AC21, Congress authorized H-1B workers “who are pursuing LPR status, but face long waits due to backlogs resulting from the statutory limits on immigrant visas” to remain in the United States “beyond their initial 6-year period of authorized admission.” Hsiao v. Stewart, 527 F.Supp.3d 1237, 1246 n.9 (D. Haw. 2021).

Pursuant to the AC21, an EB-1, EB-2, and EB-3 visa petition beneficiary “may now remain in the United States for however long it takes for his I-485 application to be adjudicated[.] Musunuru v. Lynch, 831 F.3d 880, 889 n.6 (7th Cir. 2016). Derivative beneficiaries of a visa petition beneficiary holding an H-4 visa also may extend their H-4 visas under the AC21, but only for as long as they meet the definition of a “child, ” i.e., under the age of 21 and unmarried. See 8 U.S.C. § 1101(d).

Once an immigrant visa becomes available, the beneficiary completes the final steps to LPR status by submitting to USCIS an I-485 Application to Register Permanent Residence or Adjust Status. See 8 U.S.C. § 1255(a); 8 C.F.R. § 204.5(n)(1). In accordance with 8 U.S.C. § 1255, USCIS determines whether to “adjust” the noncitizen's status to that of a lawful permanent resident entitled to work within the United States; if the USCIS so determines, the visa beneficiary receives a “green card.” See United States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003).

The child of a visa beneficiary also may apply for LPR status as the visa beneficiary's derivative family member. See 8 U.S.C. § 1153(d); 22 C.F.R. § 42.32(a)-(d). A child applicant is afforded “the same order of consideration” as the parent visa beneficiary. 8 U.S.C. § 1153(d). If the child of a principal beneficiary turns 21 or marries before a visa becomes available to the parent, the child may no longer be regarded as a child and may lose status as a derivative beneficiary. Id.; see 8 U.S.C. § 1101(b)(1) (defining “child”).

Under the Child Status Protection Act (“CSPA”), Pub. L. No. 107-208, 116 Stat. 927 (2002) (codified at 8 U.S.C. § 1153(h)(1)(A)), derivative beneficiaries are not protected from “aging out” due to the time they spend waiting for a visa to become available to their parents. See generally Matter of Wang, 25 I. & N. Dec. 28, 29 (BIA 2009) (extensively discussing the legislative history and purposes of the CSPA). Rather, the CSPA helps “prevent an alien from ‘aging out' because of-but only because of-bureaucratic delays: the time Government officials spend reviewing (or getting around to reviewing) paperwork at what we have called the front and back ends of the immigration process.” Scialabba, 573 U.S. at 53. Under the CSPA regulatory scheme, a derivative beneficiary's age is “locked in” on the date a visa becomes available to the visa beneficiary parent and the amount of time government spent processing the I-140 immigrant petition is subtracted from that age to produce the “CSPA age” of the derivative beneficiary. See 8 U.S.C. § 1153(h).

Regarding the USCIS's calculation of a beneficiary's CSPA age, USCIS updated its Policy Manual in May 2018 to state as follows:

While an adjustment applicant may
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