Citizenship and Immigration Services Ordered to Resume Processing Employment Authorization Applications

A federal judge on Wednesday ordered U.S. Citizenship and Immigration Services (USCIS) to resume processing I-765 employment authorization applications for foreign nationals, after the federal government earlier this year had frozen all such applications for individuals from 39 countries deemed “high risk.”

U.S. Magistrate Judge Virginia DeMarchi, in San Jose, California, partially granted a motion for a preliminary injunction) in the lawsuit filed by 137 foreign nationals from 15 countries, including Afghanistan, Iran, Nigeria, and Venezuela.

They allege that the timely adjudication of their I-765 applications is essential to their ability to work, maintain their nonimmigrant status, and sustain their livelihoods in the U.S.

The judge rejected the government's arguments that the policy memoranda that froze the applications were shielded from judicial review under the Immigration and Nationality Act (Immigration and Nationality Act).

DeMarchi disagreed that the policy memoranda do not constitute final agency actions subject to challenge under the Administrative Procedure Act (Administrative Procedure Act), which governs how federal agencies make and implement significant policy decisions.

“This same jurisdictional issue has already been extensively examined by other courts in similar litigation in this district and across the country,” DeMarchi said. “The court agrees with the reasoning of those courts that conclude that USCIS has a nondiscretionary duty to adjudicate immigration benefit applications within a reasonable period of time; that courts have jurisdiction to review USCIS's failure to do so; and that the policy memoranda are sufficiently ‘final’ for purposes of review under the APA.”

The employment authorizations at issue are typically required for foreign students at U.S. universities, asylum applicants, Green Card applicants, and spouses of foreign nationals who hold visas to work in the U.S.

The decision follows a ruling last month by a federal judge in Rhode Island that vacated four USCIS policies that had suspended asylum applications, employment authorizations, Green Cards, and citizenship applications by nationals of the 39 countries in Africa, Asia, the Middle East, and Latin America.

Chief U.S. District Judge (Chief U.S. District Judge) John McConnell Jr., an appointee of Barack Obama, rebuked USCIS in that ruling for violating the very immigration laws Congress charged it with administering.

“In promulgating its latest immigration policies, USCIS: claims statutory and regulatory authority that it does not possess; makes decisions without the reasoned explanations it must provide; acts without considering the reliance interests (reliance interests) of applicants that it must take into account; and justifies its actions with pretextual ‘national security’ concerns that mask anti-immigrant sentiments that it is prohibited from allowing to influence its decision-making,” McConnell Jr. said in a 135-page ruling.

Although the ruling in Dorcas International Institute of Rhode Island vs. USCIS effectively meant that I-765 applications are no longer frozen, DeMarchi denied the government's request to stay the litigation while it appeals the Rhode Island decision.

“The judge acted correctly in granting this injunction—the fifth or sixth victory by our firm against the holds,” Curtis Lee Morrison, an attorney with Red Eagle Law who represents the plaintiffs in the San Jose case, said in an email. “The government's position that it is likely to prevail on appeal from the vacatur in the Dorcas case clearly undermines any argument against granting relief here or in other challenges to the holds.”

Representatives of the U.S. Department of Justice did not immediately respond to a request for comment on the decision.

Source: Courthouse News