Federal Judge in California Orders USCIS to Resume Processing I-765 Work Permit Applications

Last month, a federal judge in Rhode Island sharply criticized the relevant USCIS policies. A magistrate judge in San Jose, California, then issued the latest ruling.

On Wednesday, a federal judge ordered U.S. Citizenship and Immigration Services (USCIS) to resume processing I-765 work permit applications filed by noncitizens. Earlier this year, the federal government froze all such applications from nationals of 39 "high-risk" countries.

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

The plaintiffs argued that timely adjudication of their I-765 applications by USCIS is crucial to them, as it directly affects their ability to work lawfully in the United States, maintain nonimmigrant status, and support themselves.

The government argued that, under the Immigration and Nationality Act, the policy memoranda freezing these applications are not subject to judicial review. The judge rejected this argument.

The Administrative Procedure Act sets out how federal agencies must formulate and carry out major policies. Judge DeMarchi rejected the government's position, concluding that the policy memoranda constitute final agency action and may therefore be challenged under the Administrative Procedure Act.

DeMarchi stated: "Courts in this district and across the country have thoroughly examined this jurisdictional issue in similar litigation. This Court agrees with the reasoning of the other courts. USCIS has a mandatory duty to adjudicate immigration benefit applications within a reasonable time; courts have jurisdiction to review USCIS's failure to act; and, for purposes of Administrative Procedure Act review, these policy memoranda have sufficient 'final' effect."

The work permits at issue primarily target international students at U.S. universities, asylum seekers, green card applicants, and spouses of foreign nationals holding work visas.

Last month, a federal judge in Rhode Island issued a similar ruling. The judge vacated four USCIS policies. These policies had previously halted asylum, work permit, green card, and citizenship applications for nationals of 39 countries in Africa, Asia, the Middle East, and Latin America.

U.S. Chief Magistrate Judge John McConnell Jr., who was appointed by Barack Obama, presided over the case. In his ruling, he sharply criticized USCIS, stating that it blatantly violated the immigration laws that Congress required it to enforce.

In a 135-page ruling, McConnell wrote: "In promulgating its latest immigration policies, USCIS asserted statutory and regulatory authority it does not possess; in making decisions, it failed to provide the reasoned explanation it was required to give; in acting, it disregarded applicants' reliance interests that it was required to consider; and, furthermore, USCIS used purported 'national security' concerns as a pretext to mask its anti-immigrant sentiment, which must never influence decision-making."

Although the ruling in Dorcas International Institute of Rhode Island vs. USCIS effectively meant that I-765 applications were no longer frozen, the government still requested a stay of the current litigation pending its appeal of the Rhode Island ruling. DeMarchi denied the government's request.

"The judge was absolutely right to issue this injunction. This is also the fifth or sixth victory for our firm in opposing the application freeze," said Curtis Lee Morrison, an attorney at Red Eagle Law, who represents the plaintiffs in the San Jose case, in an email. "The government's position that it might prevail on appeal in the Dorcas case clearly undermines any argument they have against granting relief in this or other challenges."

Representatives of the U.S. Department of Justice have not yet commented on this ruling.