As ILBSG has previously reported, nearly 200 Indian and Chinese nonimmigrant workers filed a lawsuit in August 2021 seeking a preliminary injunction to force USCIS to take action on their pending I-485 applications by September 30, the end of the government’s fiscal year. As of October 1, the unused green cards from the 2021 fiscal year will expire, unless USCIS approves the pending I-485 applications before that time or takes action to roll over this year’s unused green cards into the 2022 fiscal year. The pending lawsuit seeks to compel agency action to resolve this issue.

However, on Monday, USCIS argued that it is not the court’s place to resolve the processing delays, but rather Congress’ responsibility.  USCIS explained that only Congress can reserve the available employment-based green cards and roll them over into the next fiscal year.

In a filed response with the court, USCIS stated that “Plaintiffs ask the court to impose their preference to change the EB [visa] program because they do not like the program enacted by Congress, and they are not happy where they are in the visa line. But plaintiffs’ remedy to change the program is with Congress, not the Court.”

USCIS further argued that the plaintiffs lack standing, as they cannot prove any injury except the possibility of having to wait longer for their applications to be approved. There is some merit to this response from USCIS since the plaintiffs will not have to reapply or pay any additional filing fee. The plaintiffs will also retain the same order of priority in the next fiscal year. As such, USCIS’ position is that the plaintiffs are using the lawsuit to instead try to change immigration policy, which is more appropriate for Congress, not the courts.

While USCIS has declined to comment on the pending litigation, a USCIS spokesperson did confirm that the agency expects to process 164,000 employment-based green cards by September 30, the end of the fiscal year. This number is more than nearly every previous fiscal year, despite the setbacks USCIS suffered due to the pandemic, lending credibility to USCIS’ position in the lawsuit. While the processing delays are undoubtedly frustrating, it is symptomatic of a bigger problem: the need for Congress to act to pass comprehensive immigration reform.

ILBSG will keep its clients updated on any new developments as this lawsuit unfolds. If you have questions about green card processing, please reach out to an ILBSG attorney today. We are here to help.

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