In the first stage of a class action lawsuit over the State Department’s revised October Visa Bulletin, immigrants did not prove they are entitled to emergency relief to compel the government to accept their green card applications under the rescinded version of the bulletin, a federal judge has ruled.

While the immigrants have been denied an emergency temporary restraining order, their lawsuit will continue to proceed.

The plaintiffs – high-skilled immigrants from India and China in the EB-2 preference category – contend that the State Department violated the Administrative Procedures Act and due process when it abruptly revoked its original October Visa Bulletin and replaced it with a revised bulletin that rolled back dates for filing green card applications. Under the revised dates, the plaintiffs were no longer eligible to file. They argue that they spent thousands of dollars in preparing to file in reliance on the original bulletin.

The judge ruled that the immigrants did not prove the necessary elements to justify an emergency order at this time to force the government to follow its first bulletin.

“While the court appreciates the confusion caused by the two Visa Bulletins… and the potentially wasted expenses plaintiffs incurred as a result, because plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the court cannot issue injunctive relief,” U.S. District Court Judge Ricardo S. Martinez stated in a written order.

Specifically, the judge found that the plaintiffs did not demonstrate that they were likely to succeed on their claims or that they will incur irreparable harm – necessary elements for the granting of an emergency temporary restraining order. Even if revising a Visa Bulletin is a “final agency action” subject to the Administrative Procedures Act, the second bulletin contained a plausible explanation for the State Department’s action and appeared to clarify erroneous statements in the previous bulletin rather than substantially alter or diminish the plaintiffs’ rights, the court said. The plaintiffs also did not point to any law establishing that reliance on a Visa Bulletin creates a constitutional right to due process. The court said that because most of the harm to the plaintiffs has already occurred, they have not shown they would face irreparable harm if the court denied emergency relief. Finally, the court said that “it is in the public’s interest that the agency has the authority to update its guidance when necessary.”

BAL Analysis: Though the court did not issue a temporary restraining order, the government’s handling of the Visa Bulletin is likely to face increased scrutiny by Congress and in the courts. BAL continues to work with the government and through business trade associations on this issue.

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