U.S. Trashes Claims by Chinese on Visa Scheme

     (CN) – With a gentle scolding, the 9th Circuit dismissed claims that immigration authorities gave away thousands of visas that should have gone to Chinese applicants.
     Five skilled workers from China filed a class action against various federal officials and agencies in 2010, claiming that they were passed over for employment-based permanent resident status in 2008 and 2009 because of a massive “misallocation” of EB-3 visas.
     They alleged that the Visa Office established improper cut-off dates that allowed 2,300 applicants from other countries to receive more than 40 percent of the visas reserved for China. Named plaintiffs Zixiang Li, Jun Li, Jun Guo, Shibao Zhang and Ming Chang hoped for a court order to correct the alleged mistake and grant their visas, and for an injunction to force changes in the system.
     A federal judge in Seattle dismissed the case, however, after finding it had failed to state a valid claim. The judge also ruled that plaintiffs’ requested relief could not be satisfied, as visa numbers from previous years could not be “recaptured.”
     A three-judge panel of 9th Circuit unanimously affirmed on Monday, though one judge said that the “largely uncontested” mess could have been avoided had “the defendants taken more seriously their joint responsibility to ensure the proper functioning of the immigrant visa system.”
     “What is clear is that during 2008 and 2009 (and likely beyond), as a result of either errors or oversights on the part of the responsible agencies, the immigrant visa system did not function in a manner consistent with Congress’s intent in creating it,” Judge Stephen Reinhardt wrote in a concurring opinion (parentheses in original). “Although we dismiss plaintiffs’ complaint, our decision should not be read as condoning that unfortunate result.”
     Regardless of the relative health of the visa system, this particular challenge to it failed entirely, according to the ruling.
     “Plaintiffs essentially ask us to hold that U.S. Citizenship and Immigration Services (USCIS) could be acting arbitrarily and capriciously by failing to create a system, or complying with vague standards, not required by law,” Judge Milan Smith wrote for the majority. “We decline their invitation, and we hold that plaintiffs failed to state a claim against USCIS.”
     The panel also agreed with the lower court as to the plaintiffs’ bid for visas after the fact.
     “Because employment-based visa numbers expire at the end of a fiscal year, a court cannot order an agency to recapture those numbers contrary to Congress’s clear statutory command,” Smith wrote.

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