Wang v. Chertoff

• Decision Date: 12 January 2010
• Docket Number: Case No. CV 08-429-S-CWS.
• Citation: 676 F. Supp.2d 1086
• Parties: Fei WANG, Plaintiff, v. Michael CHERTOFF, et. al., Defendants.
• Court: U.S. District Court — District of Idaho

676 F.Supp.2d 1086

Fei WANG, Plaintiff, v. Michael CHERTOFF, et. al., Defendants.

Case No. CV 08-429-S-CWS.

United States District Court, D. Idaho.

March 23, 2009.

Opinion Denying Reconsideration January 12, 2010.

Fei Wang, Boise, ID, pro se.

Amy S. Howe, US Attorney's Office, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, United States Chief Magistrate Judge.

I. Background

Plaintiff Fei Wang, proceeding pro se, filed this Complaint seeking a Writ of Mandamus, relief under the Administrative Procedure Act, and for Declaratory Judgment. He is asking the Court to compel individuals within the U.S. Department of Homeland Security and the U.S. Citizenship and Immigration Services Department ("USCIS") (collectively, "Defendants") to expedite the processing of his pending application to adjust his immigration status to permanent resident, and to adjudicate the matter by declaring Defendants' failure to act is arbitrary and capricious and an abuse of discretion. (Compl. at 13, Docket No. 1.) He seeks fees under the Equal Access to Justice Act as well.

Defendants have moved the Court to dismiss the Complaint pursuant to Fed. R.Civ.P. 12(b)(1) and (6), asserting that Mr. Wang's claims are not properly brought under the federal statutes cited, and thus the Court lacks jurisdiction. In the alternative, Defendants argue that Mr. Wang has failed to state a claim upon which relief can be granted. Mr. Wang filed a response, contending that Defendants are entirely responsible for the delay in processing his application, visa numbers were available during the time his application was pending, and the delay is unreasonable.

The Court held a hearing on this matter on February 10, 2009, and both parties presented oral argument. This matter is now ripe for review. After careful consideration of the authorities and arguments presented, the Court will deny Defendants' Motion to Dismiss for the reasons discussed below.

II. Facts

The following undisputed facts, except where otherwise noted, are gleaned from Mr. Wang's Complaint and the Defendants' submission of Defendant F. Gerard Heinauer's Declaration (Docket No. 10), as well as representations made during oral argument. Mr. Wang is a native and citizen of China. He entered the United States to attend Pennsylvania State University for graduate studies in 2001. After graduating with a Ph.D. in Engineering Science in 2005, Micron Technology, Inc. ("Micron") hired Mr. Wang. In October 2005, Mr. Wang was granted status as an H-1B nonimmigrant temporary worker based upon a petition Micron filed on his behalf. He currently enjoys lawful nonimmigrant status in the United States as an H-1B temporary worker authorized to remain in the United States and work for Micron through September 30, 2011. He may renew his nonimmigrant temporary worker status upon application by his employer.

Mr. Wang desires to become a permanent resident. To that end, he filed a Form I-140 visa petition for immigrant worker (aka "green card") with USCIS on March 13, 2006, the first step in obtaining permanent residency. The Form I-140 Petition was approved on May 10, 2006, and thereafter, Micron filed an application for Adjustment of Status, Form I-485, on Mr. Wang's behalf on June 19, 2007, at the USCIS Nebraska Service Center. Mr. Wang's application for adjustment of status was based upon the employment-based second-preference (EB-2) immigration petition (Form I-140) he had filed on March 13, 2006. Mr. Wang's Form I-485 application for Adjustment of Status was given a priority date of October 31, 2005, which date was based upon his October 2005 H-1B application.

Because of the delay in obtaining permanent residence status as a second preference EB-2 advanced degree professional worker, on February 16, 2007, Micron filed a second Form I-140 visa petition for immigrant worker on Mr. Wang's behalf as a first preference alien worker of extraordinary or outstanding ability. Micron attempted to gain a higher classification so that Mr. Wang could file for adjustment of status more quickly, because traditionally, there is no wait for first preference visa numbers. The first preference Form I-140 visa petition was denied on its merits by USCIS on August 7, 2008. Unfortunately, when Mr. Wang's first preference visa petition was denied, the officer reviewing his file overlooked the original second preference Form I-140 filed on March 13, 2006. The reviewing officer therefore denied Mr. Wang's request for Adjustment of Status, Form I-485.

Mr. Wang filed a motion to reconsider with USCIS on August 28, 2008, pointing out that the denial of the Form I-485 was in error because the first Form I-140 second preference visa petition had already been approved, and the Form I-485 was meant to support the second preference Form I-140, not the first preference Form I-140. The officer who reviewed the motion agreed, reopened Mr. Wang's file on September 1, 2008, and refunded Mr. Wang's $585.00 fee submitted to file the motion to reconsider. Mr. Wang's case was put back into normal processing for a second preference professional worker based upon his established October 31, 2005 priority date and June 19, 2007 Form I-485 filing date.

Mr. Wang completed his security and background checks following the submission of his Form I-485. These background checks included, among other things, a finger print check and an FBI name check. The FBI completed Mr. Wang's name check on September 12, 2007. All of Mr. Wang's preliminary background checks were completed, and if there are any remaining checks to be performed, they can be done at the time of final adjudication if deemed necessary.

Mr. Wang's Form I-485 Adjustment of Status application has remained pending since June 19, 2007, because there is no visa number available for him. He continues to enjoy a priority date of October 31, 2005. But, a visa number must be available both at the time the I-485 is filed and when the I-485 is adjudicated, before an application may be finally adjudicated.

Defendants explained, in great detail, how Adjustment of Status applications are finally adjudicated. By statute, only 140,000 foreign born persons and their relatives may obtain green cards through employment-based categories during each fiscal year, with percentage limits set by Congress based upon a per country basis. There is, and has been, a high number of Chinese applicants, and a waiting list exists based upon an applicant's priority date. During the time period that Mr. Wang filed his Form I-485 Adjustment of Status application on June 19, 2007, USCIS received over 340,000 applications. Once individuals higher on the waiting list than Mr. Wang received a visa number during this period, the second preference numbers for China retrogressed to January 1, 2003. Thus, in July 2007, only those applicants with a priority date on or before January 1, 2003 were eligible to receive a visa number.

USCIS considers applications for adjustment of status in date-received order. The Nebraska Service Center of USCIS currently has approximately 135,000 employment-based Form I-485 adjustment of status cases pending. Mr. Heinauer contends that Mr. Wang's case will be completed once a visa number becomes available to him. He also represents that it would prejudice Mr. Wang if USCIS were to request a visa number while none was available, because the Department of State would decline to issue a visa number and Mr. Wang's application would be denied. Defendants represent that the February 2009 visa bulletin indicates the Department of State is issuing visa numbers to second preference Chinese workers with priority dates earlier than January 1, 2005, which is nine months prior to Mr. Wang's priority date. (Suppl. Ex., Docket No. 16.)

Mr. Wang, however, refuses to accept the government's explanation for the delay. He alleges that, but for the mistake made on August 7, 2008, in denying his Form I-485, overlooking his first Form I-140, and the resulting delay the motion to reconsider caused, he would have received a visa number. (Compl. ¶ 23, Docket No. 1.) Defendants confirmed that during August and September 2008, the Department of State opened up second preference China numbers to those with priority dates earlier than January 6, 2006, which would have included Mr. Wang, but because of the number of requests, the numbers retrogressed by October 2008 to those applicants having a priority date prior to April 1, 2004. (Heinauer Decl. ¶ 14, Docket No. 10.) Despite the availability of a visa number during August and September 2008, Defendant Heinauer asserts that the erroneous August 7, 2008 denial of the Form I-485 did not prejudice Mr. Wang. (Heinauer Decl. ¶ 26, Docket No. 10.) Heinauer represents that there were "so many other adjudication-ready second preference Chinese adjustment of status cases in line ahead of Plaintiff's case that his file was not moved to an officer in its turn before the visa numbers retrogressed." (Heinauer Decl. ¶ 15, Docket No. 10.) Thus, before Mr. Wang's application could be processed, the numbers retrogressed.

Mr. Wang, however, contends that had the mistake of denying his Form I-485 not been made, and had there been no delay occasioned by that mistake, he would have received a visa number before the numbers retrogressed again in October 2008. At the hearing, counsel for Defendants represented that the USCIS employee "missed" Mr. Wang's application, and did not see that his Form I-485 application for Adjustment of Statutes based upon Mr. Wang's second preference Form I-140 visa petition could have been granted as of August 2008. Counsel affirmatively stated that, had the mistake not been made, Mr. Wang likely would have received an available visa number at that time, although she stopped short of guaranteeing that would have happened. (see also Reply Brief at 2, Docket No. 15, wherein Defendants represented that there were openings in the priority...