Ray v. Cuccinelli
| Decision Date | 03 November 2020 |
| Docket Number | Case No. 20-cv-06279-JSC |
| Parties | SARONI RAY, et al., Plaintiffs, v. KENNETH T. CUCCINELLI, Defendant. |
| Court | U.S. District Court — Northern District of California |
Plaintiffs are 45 foreign nationals holding H-4 visas; they are also individual spouses of H-1B visa holders. They reside across the country, and allege that United States Citizenship and Immigration Services ("USCIS") has unlawfully withheld from them a 180-day automatic extension of work authorization upon the expiration of their Employment Authorization Documents, and that USCIS has created unreasonable delays in the adjudication of their work reauthorizations. They seek to compel USCIS to recognize that their work authorizations should be automatically extended and adjudicate their pending work reauthorization petitions. Plaintiffs also seek to expedite discovery. For the reasons set forth below, the Court DENIES Plaintiffs' motion for a preliminary injunction, DENIES the motion to expedite discovery, and schedules an initial case management conference for November 19, 2020.
The Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101, et seq., regulates the admission of foreign nationals into the United States, including the temporary admission of nonimmigrants for specific purposes. Domestic 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 "H1-B" visa." An H1-B visa holder's spouse is entitled to derivative immigration status under 8 C.F.R. § 214.2(h)(9)(iv), and is commonly referred to as holding an "H-4" visa. An H1-B visa is valid for an initial three years and may be extended for an additional three, see, e.g., 8 U.S.C. § 1184(g)(4), 8 C.F.R. § 214.2(h)(15)(ii)(B); the validity period of an H-4 visa derives from and is dependent upon the length of the attendant H-1B visa, see 8 C.F.R. § 214.2(h)(9)(iv). For an H-4 visa holder to apply for or extend their visa status, they must complete and submit a Form I-539, "Application to Extend/Change Nonimmigrant Status," to USCIS. An extension for an H-4 visa holder's status may be submitted using the Form I-539 no earlier than six months before the holder's visa is set to expire.
H-4 visa holders are also eligible for work authorization and employment. In order to request or extend their employment authorization, H-4 visa holders must file a Form I-765, "Application for Employment Authorization," and submit evidence that they are eligible for an employment authorization extension, remain in a spousal relationship with the related H-1B visa holder, and the related H-1B visa holder is eligible for extended status. See 8 C.F.R § 274a.13. Once an H-4 visa holder's Form I-765 is approved, they are given or have renewed their Employment Authorization Documents ("EAD"), and are employment-eligible. As with the Forms I-539, H-4 visa holders may submit employment authorization renewal requests using the Form I-765 no earlier than six months before their visa status expires. Forms I-539 and I-765 may be submitted concurrently. See 80 Fed. Reg. 10,284 (Feb. 25, 2015).
The employer of an H-1B visa holder may apply for the holder to gain permanent immigration status. However, due to various limitations the INA imposes on the number of employment-based visas that may be issued per year, see 8 U.S.C. § 1151(d), many employers and their H-1B employees face significant wait times when applying for permanent immigration visas. In light of this, H1-B status—and status for derivative H-4 visas—may be extended beyond the six-year maximum in increments not to exceed three years. See, e.g., 8 C.F.R. § 214.2(h)(13)(iii). An employer may apply for an extension petition to prolong an H-1B employee's stay no earlier than six months prior to the expiration of the employee's current visa. See 8 C.F.R. § 214.2(h)(12)(ii). While adjudication of the extension petition is pending, the H-1B visa holder's immigration status is extended for the length of the petition's adjudication. See 8 C.F.R. §214.2(h)(2)(i)(H)(3). Should the underlying visa expire before USCIS adjudicates the extension petition, the H1-B visa holder enjoys an automatic extension of work authorization for a maximum of 240 days. See 8 C.F.R. § 274a.12(b)(20).
Unlike the H-1B holders on whom their own status depends, USCIS has determined that H-4 visa holders are not entitled to automatic extensions of their EAD and work authorizations submitted through Forms I-765 while Form I-539 status renewals are being adjudicated. See 80 Fed Reg. 10,298-299. Prior to 2019, USCIS adjudicated the Forms I-129, I-539, and I-765 concurrently on the basis that resolving the H-1B holder's status also resolved the underlying conditions to successfully adjudicate an H-4 visa holder's status and employment authorization petitions. Since 2019, USCIS adjudicates the forms sequentially; because visa eligibility is a condition for continued work authorization, an H-4 visa holder's status renewal is adjudicated before their EAD renewal. Additionally, in February 2019 USCIS began to require all H-4 visa holders submitting a Form I-765 to also submit biometric information to confirm the applicant's identity. At bottom, three related inquiries—once adjudicated simultaneously—are now adjudicated sequentially.
Plaintiffs allege USCIS's decision to review H-1B and H-4 extension petitions separately slows the adjudication of H-4 visa holders' EAD, and that—without automatic extensions of their EAD—H-4 visa holders are, unlike their spouses, exposed to potential employment gaps or unemployment. They argue further that the recently imposed biometrics requirement was made in bad faith to delay the adjudication of H-4 EAD petitions. Plaintiffs in this action have filed Forms I-539 and I-765. They allege the loss or imminent loss of their H-4 EAD work authorizations, resulting from the prolonged adjudications of their petitions that exceed the validity period of their current work authorizations, has caused or will cause irreparable harm, including the loss of employment, income, and employment-based benefits. According to Plaintiffs, USCIS's failure to automatically extend H-4 visa holder's employment authorization is unlawful under the Administrative Procedure Act ("APA"), and the time it takes USCIS to adjudicate the H-4 work authorization renewals is unreasonable under the APA.
Defendant argues that the Northern District of California is an improper venue for this action, and that Plaintiffs cannot meet their burden to demonstrate otherwise. The Court disagrees.
Venue of civil actions is governed by 28 U.S.C. § 1391; pursuant to Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss an action brought in an improper venue. In actions against federal defendants, venue is proper in any judicial district where: (1) a defendant in the action resides; (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) the plaintiff resides if no real property is involved in the action. 28 U.S.C. § 1391(e)(1). Once challenged, the plaintiff bears the burden of showing venue is proper in its chosen district. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979).
The gravamen of Defendant's argument is that not all plaintiffs reside in this district, and therefore venue is improper.1 While only 6 of the 45 Plaintiffs reside in this district, Defendant's interpretation of the governing venue statute is improperly narrow. "[T]he clear weight of federal authority holds that venue is proper in a multi-plaintiff case if any plaintiff resides in the District." Californians for Renewable Energy, 2018 WL 1586211, at *5 (internal citation omitted) (original emphasis); see also A.J. Taft Coal Co. v. Barnhart, 291 F. Supp. 2d 1290, 1301 (N.D. Ala. 2003) () (collecting cases); Raju v. Cuccinelli, No. 20-CV-01386-AGT, 2020 WL 4915773, at *3 (N.D. Cal. Aug. 14, 2020) () (internal citations omitted).2
The Court declines to depart with courts' decades-long interpretation of the venue statute. The residence of 6 Plaintiffs in this District is, "standing alone, sufficient to establish that venue is proper[.]" Californians for Renewable Energy, 2018 WL 1586211, at *6. As such, Plaintiffs have met their burden to show that venue in this district is proper.
Plaintiffs move the Court to issue a preliminary injunction requiring Defendant to automatically extend their employment authorizations while their employment authorization renewal applications are pending on the grounds that its refusal to do so is unlawful. In the alternative, they move to require Defendant to adjudicate Plaintiffs' H-4 visa status extension and work authorization renewals within seven days of the Court's order on the grounds that Defendant's delay in adjudication is unreasonable.
"On a motion for a preliminary injunction, plaintiffs must make a 'threshold showing' of four factors." E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 844-845 (9th Cir. 2020) (internal citation omitted). "Plaintiffs must show that (1) they are likely to succeed on the merits, (2) they are likely to 'suffer irreparable harm' without relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest[;]"...
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