CA6 Holds That U Visa Applicants May Sue USCIS over Processing Delays Despite New Bona Fide Determination Process
The court first held that USCIS’s issuance of the new bona fide determination (BFD) process for victims of qualifying crimes did not moot the plaintiffs’ case, and that federal courts may review the plaintiffs’ claims that USCIS has unreasonably delayed placing principal petitioners on the U visa waitlist and adjudicating pre-waitlist work authorization applications. The court next found that federal courts may compel USCIS to place principal petitioners on the U visa waitlist when an unreasonable delay has occurred per 5 USC §706(1). Further, the court concluded that §706(1) allows the federal courts to command USCIS to hasten an unduly delayed BFD, and that the plaintiffs had sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U visa waitlist. Finally, the court determined that the plaintiffs should be allowed to amend their complaints should they wish to challenge any delayed BFDs. (Barrios Garcia et al. v. DHS et al., 9/13/21)