Li v. Kerry

The district court properly dismissed the plaintiffs’ claims when there was no “live case or controversy” about visa cut-off dates and allocation of visa numbers, and when the plaintiffs did not allege that the “defendants failed to take discrete actions they were legally required to take.”

Individuals from China seeking permanent United States resident status “in the EB-3 visa category” (“Plaintiffs”) filed suit against several defendants, including United States Citizenship and Immigration Services (USCIS) (“Defendants”). The Plaintiffs claimed that in the fiscal years of 2008 and 2009, the “Defendants did not allocate immigrant visas to eligible applicants in the correct order.” The district court dismissed the suit for failure to state a claim. The Plaintiffs appealed, claiming USCIS had approved “applications for adjustment of status…out of priority date order,” which violated several statutes. However, the statutes that the Plaintiffs cited were “silent about the order in which USCIS must approve applications for adjustment of status.” Thus, the panel held that the Plaintiffs had failed to state a claim. The Plaintiffs claimed that USCIS violated the law and acted arbitrarily and capriciously because it did not have a system to track the priority dates of visa applicants and the number of pending immigrant petitions and adjustment of status applications. The panel held that the Plaintiffs had failed to state a claim because no authority required the USCIS to maintain such a system. The Plaintiffs sought to “recapture visa numbers from previous fiscal years,” but the panel held that the claims for recapturing visa numbers were moot because “employment-based visa numbers expire at the end of a fiscal year.” The Plaintiffs sought to compel the Defendants to make the waiting lists for visas available to the public and to “waive the fees for Plaintiffs to renew their employment authorizations while waiting for immigrant visa numbers.” Since there was no authority requiring the Defendants to take such actions, the panel held that the Plaintiffs had failed to state a claim. AFFIRMED.