Following Litigation, USCIS Resumes EAD and AP Adjudications for RC Adjustment of Status Applicants
In some welcome news, it appears that USCIS has resumed adjudicating Applications for Employment Authorization (Forms I-765) and for Advance Parole (Forms I-131) for EB-5 immigrants who have pending adjustments of status following approvals of their Regional Center Related EB-5 petitions. Although never making an official public announcement, the Agency had indicated in various court filings that it would not adjudicate these benefits during the lapse. Our clients, as well as those of peer firms, have reported a significant number of adjudications in the past week. Recent adjudications appear to be for the benefit of applicants that filed in Summer-Fall 2020.
As EB-5 stakeholders are aware, the Regional Center Program’s authorization ended on June 30. Without Congressional authorization to grant visas, USCIS had to hit the proverbial pause button on Regional Center Investors’ Adjustment of Status Applications. This was of course, nothing new. However, virtually everyone had assumed that the interim work and travel benefits would continue to be processed. Despite how USCIS’ public announcements were ambiguous, the Agency had clearly implied that these benefits would continue to be adjudicated in the normal course in a late June 2021 court filing where it was defending against plaintiffs seeking to compel adjustments. See Hulli v. Mayorkas, No. 21-CV-1027 (CRC), 2021 WL 2843203 (D.D.C. June 29, 2021)
Yet, for most, the EAD and AP issuances had seemingly stopped.
In our Nandu v. Jaddou suit, we were stunned to discover that USCIS had seemingly taken the opposite position to what it had stated in Hulli v. Mayorkas. In early July, the Agency filed a declaration which included the following to bolster its Motion to Dismiss against our clients:
"At the present time USCIS will continue the procedures it has followed during … past lapses of the EB-5 Immigrant Investor Regional Center Program, and will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority. This includes any Forms I-765… and Forms I-131… based on an approved Regional Center Form I-526."
Despite the government’s arguments, on September 24, we were able to prevail against their dismissal efforts. And now it seems that following suits like Nandu, as well as advocacy from interested stakeholders, USCIS has finally resumed its obligations.
Adjustments are either pending, or they are adjudicated (i.e. approved/denied). The Agency’s adjudicatory practices do not provide for a third option. So long as adjustments are pending, the regulations provide that adjustment applicants are eligible for EADs. Indeed, case law has held that such EADs are nondiscretionary benefits. USCIS’ ongoing consideration and adjudication of interim benefits should not have been open to additional interpretation. In our opinion, USCIS had no legal basis to stop adjudicating interim benefits, even though the Regional Center Program had lapsed. Applicants who continue to wait for their combo cards may accordingly want to consider litigation against the government for these ongoing delays.