Green Card Seekers Hope Application Policy Fix Will Ease Backlog

Several hundred Indian immigrants who previously applied for green cards are asking a federal appeals court to overturn a government policy that they say has added nearly a decade to their wait to become permanent residents. The US Court of Appeals for the Ninth Circuit will hear oral arguments Wednesday over whether federal immigration law requires that a visa be available at the time an immigrant files an application or when US Citizenship and Immigration Services grants final approval. The latter approach—which is how the visa system currently operates—can unexpectedly add years to an applicant’s wait time when government projections of available visas in a fiscal year don’t match demand. The plaintiffs, who face added delays after a change to visa time lines after they applied for green cards, are asking that USCIS continue to adjudicate their applications rather than kicking them back into a queue of green card applicants because the fiscal year lapsed without a visa actually becoming available. Not only is the delay harmful to immigrants, it’s also a violation of congressional intent, they say. The government says changing its practice would cause major disruptions to the visa system. Visa Bulletin Retrogression Further extending the wait for a green card means many immigrants remain on temporary visas and can’t access benefits such as freedom to travel or change employers without restrictions. Permanent residency would also offer the chance to sponsor family members for green cards and eventually obtain citizenship. Applicants from populous countries such as India face extended wait times because of annual caps on both the total number of green cards and on the share that can go to a given country. Long-standing backlogs led to the creation of the Visa Bulletin, a monthly State Department document that tells green card applicants when they can apply for permanent residency based on their spot in line based on a projection of available visas. Each applicant’s ability to apply for a green card is based on a “priority date,” which for employment-based immigrants is either the date an employment-based visa petition is filed with USCIS or, if labor certification is required, the date the labor certification application is accepted for processing by the Department of Labor. But if the government’s projections about the number of available visas are too generous, the Visa Bulletin retrogresses—or moves backward—the priority date for who can apply during that month. That can add years to an applicant’s wait time. Congressional Intent The Ninth Circuit is considering two consolidated cases, both of which denied injunctions sought by the plaintiffs. Brad Banias of Banias Law LLC, the attorney for the plaintiffs, has brought identical challenges in the Fifth and Eighth circuits, which will hold oral arguments in the coming months. The legislative history of the Immigration and Nationality Act makes clear that Congress intended that visas only need be available at the time of an immigrant’s application in order for the government to accept and decide that application, the plaintiffs argued in a brief. An appeals court win in the long run would mean “a lot more predictability for adjustment of status applicants,” Banias said in an interview. Oral arguments Wednesday will be heard by Ninth Circuit Judges Jacqueline Nguyen and Andrew Hurwitz, both Obama appointees. The third member of the panel is Philip Gutierrez, the chief judge for the US District Court for the Central District of California, a George W. Bush appointee sitting by designation. A State Department spokesman said as a general matter the agency doesn’t comment on pending litigation. A representative for USCIS didn’t respond to a request for comment. Upending Visa System Granting the plaintiffs the relief they seek would actually mean visas are wasted because they would be allocated before petitions are fully vetted, and so reserved for applicants who may not actually be eligible, the government told the appeals court in its brief. The plaintiffs also failed to demonstrate that they would face irreparable harm absent an injunction because none have lost work or travel authorization or their ability to adjust status because of delays associated with the Visa Bulletin, the government said. In reality, plaintiffs “challenge the immigrant visa allocation limits imposed and established by Congress because they are tired of waiting in line with the numerous other applicants in the same oversubscribed category,” according to the government’s brief. But the situation is so desperate for skilled foreign workers caught in visa backlogs that any argument with some legal basis to it should be used to get relief, said Cyrus Mehta, an immigration attorney at Cyrus D. Mehta & Partners PLLC. A win for the plaintiffs could seriously disrupt the visa system, Mehta said, “if it upends the system, then let Congress fix it.” The case is Datta v. Jaddou, 9th Cir., No. 22-35773, oral argument 3/29/23. To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bloombergindustry.com To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.