SEATTLE — A federal judge declined to issue an emergency order Oct. 7 that would allow tens of thousands of highly-skilled immigrants to immediately apply to become permanent residents, as the government initially told them they could.
Lawyers for the immigrants had not shown they were likely to win their case or that the order would be in the public interest, U.S. District judge Ricardo S. Martinez ruled.
The immigrants sued the government last week after it revised a notice on applying for green cards.
The initial notice, issued by the State Department Sept. 9, detailed which categories of the immigrants would be able to file their final green card paperwork beginning Oct. 1, a step that grants several benefits, including the ability to change jobs and travel abroad more easily as they wait for permanent resident status. But officials revised it on Sept. 25, severely curtailing who could apply — and frustrating thousands of people, including Indian Americans, who had already spent money on legal fees and medical tests to get their applications ready (I-W, Oct. 9, 2015).
While Martinez declined to issue a temporary restraining order blocking the government's revised notice, the case will continue with the sides making full arguments.
In court documents, officials said they had to correct the earlier notice, because it suggested more visas were immediately available than federal law allows to be issued. Moreover, the notice itself was simply advisory and did not create any actual right to file final green card paperwork, they said.
The judge found that persuasive.
“It appears the revised visa bulletin did not in fact substantially alter or diminish the rights of plaintiffs and potential class members, rather it clarified an erroneous prior statement of their rights,” Martinez wrote. He noted that the immigrants “cannot point to any law establishing that a visa bulletin can create a constitutional right to due process.”
The lawsuit, which seeks class-action status, was filed by more than a dozen immigrants. Among them are Quan Yuan, a Chinese-born math professor at the University of Wisconsin-Stout, and Qi Wang, a Chinese citizen who lives in Superior, Colo., and works as a research engineer at the National Renewable Energy Laboratory, the government's main lab for renewable energy research.
Their lawyers — R. Andrew Free, of Nashville, Tenn.; Gregory Siskind, of Memphis, Tenn.; and Robert Pauw of Seattle — argued in their complaint that the case “is about what happens when thousands of law-abiding, highly-skilled immigrants spend millions of dollars preparing to apply for green cards in reasonable reliance on an agency's binding policy statement, only to find out at the last minute that a hapless federal bureaucracy has abruptly, inexplicably and arbitrarily reneged on its promise.”
The U.S. issues up to 40,040 visas each year to workers in the category of the affected immigrants, but it limits how many visas can be issued to immigrants of any single country. That's created huge backlogs for immigrants from India and China, countries with large numbers of highly-skilled workers who want to stay in the United States.
Last year, President Barack Obama issued an executive order seeking to streamline the U.S. legal immigration system.
The case has garnered attention from members of Congress, some of whom criticized the State Department's handling of the matter, as well as top companies. Microsoft Corp., Google Inc., Intel Corp., Halliburton Co. and several other businesses Oct. 4 joined the U.S. Chamber of Commerce, immigration lawyers and others in sending a letter to Secretary of State John Kerry and Homeland Security Secretary Jeh Johnson urging them to abide by the original bulletin.
They called the government's handling of the matter “heartbreaking for these immigrants and deeply troubling for all who observed the process,” and they argued that the government could allow the immigrants to file the paperwork — and start receiving the benefits that come with doing so — even if the actual green cards aren't immediately available.
“This situation and its aftereffects ultimately contribute to the ever-growing impairment of our country's ability to attract and retain the best talent in the world,” they wrote.